Approaching the independence referendum: the legal issues

Lord Wallace of Tankerness QC delivered a speech on legal issues related to devolution.

This was published under the 2010 to 2015 Conservative and Liberal Democrat coalition government

The Rt Hon Lord Wallace of Tankerness QC

In May last year, those who’d actually gone to bed on election night woke up to find an SNP majority in the Scottish Parliament. The SNP emerging stronger as the largest party was expected but the achievement of an outright majority took many by surprise – including the clutch of senior SNP figures with whom I shared panels on BBC and STV as the results unfolded. Perhaps some were also surprised that their manifesto commitment to hold a referendum on whether Scotland should become an independent country was to be tested.

I don’t think it would be giving away state secrets to say that in the aftermath of that clear victory, the UK Government had given a lot of thought to that manifesto commitment to hold an independence referendum. We had been asking the new Scottish government to set out their plans for a referendum and we were also interested in how they intended to address the legal issues associated with such a referendum. All those of you with some knowledge of the Scotland Act 1998 will know that the essential aspects of the British constitution are reserved to the UK Parliament, including the Union of the Kingdoms of Scotland and England.

The Scotland Act 1998 makes it clear that the Scottish Parliament does not have the power to pass legislation that relates to a reserved matter. Any legislation that fails the competence tests in the Scotland Act is, to quote directly from the rather blunt wording of section 29 of that Act, “not law”. The Scotland Act sets out how a Court will go about assessing whether or not an Act of the Scottish Parliament is within the competence of that Parliament. The Court must consider whether the provision “relates to” reserved matters. In assessing this, it must consider the purpose of the provision having regard, among other things, to its effect in all the circumstances.

The conclusion of the UK Government is that a Court, looking at the powers of the Scottish Parliament as they stand, would conclude that the Parliament has no power to enact legislation for a referendum on independence.

On 10th January this year the Secretary of State for Scotland and I – he in the House of Commons and me in the House of Lords – set out the UK Government’s understanding of the legal position on legislative competence. However, we made it clear that we wanted to help the Scottish Government fulfil its manifesto commitment, so that a referendum would not only be fair and decisive, it would also be legal. The last thing we wanted was proposals for a referendum which could be challenged in court. To ensure that the referendum was conducted on a sound legal basis the UK Government proposed making an order under section 30 of the Scotland Act 1998 giving the Scottish Parliament the necessary competence for a referendum. (Section 30 gives the UK Government a power, with the agreement of the Scottish Parliament, to amend the reservations in Schedule 5 to the Scotland Act.)

The precise terms of such an order remain the subject of discussions between the UK and Scottish Governments - and although our aims regarding the future of the United Kingdom are entirely different, I am now getting the sense that we are coming to agreement on what needs to be done to ensure that any referendum takes place on a fair and legally sound basis. Our mutual aim is that when we have a final outcome to the referendum, when the votes are counted and the decision made, the result will be respected by all, because it was obtained by a process which everyone involved can respect.

Read any Scottish newspaper or view any TV news broadcast over the last 16 months and you might conclude we’ve indulged in a period of national introspection. It has been a period in which the demand for the thoughts of Scotland’s constitutional lawyers and legal scholars has risen exponentially – after years of toiling down the dusty mines of Academe, these writers have emerged blinking in the sunlight to be interviewed on Newsnight, to take part in public seminars and debates, to be asked to contribute to the newspapers. Last week my attention was even drawn to the work of an Australian scholar, mining this particular seam, Professor Nicholas Aroney, from the University of Queensland, who has spent time with you in this University and is now writing on “Reserved Matters, Legislative Purpose and the Referendum on Scottish Independence”. And, this week, I have been pleased to learn about the establishment of the Scottish Constitutional Futures Forum, involving academics from across the law schools of the Scottish Universities working together to inform the constitutional debate.

As I said, this period might be thought of as introspective, but, in fairness both sides can and should be allowed more noble aspirations.

Nationalists will argue that Scotland should take its place among the nations of the world, and contribute to the forums of the world as an independent country in its own right. Those who support devolution of power within the United Kingdom will argue that the nations of the UK are greater than the sum of their parts, and that devolution within the UK allows Scotland to play a greater and more influential part in the affairs of the world, to achieve more, than it could alone.

On one point, all sides should be able to agree: the debate can and should be about not just the future of Scotland, or Scotland’s place in the UK, but Scotland’s place in the world. What is the constitutional structure which best allows Scotland to play its part internationally, and is the best way of letting the world influence us? The law is a vital part of this debate. Devolution is a sophisticated constitutional mechanism and is largely the creation of lawyers.

Likewise, the very concept of an independent nation state is dependent on a body of international law which recognises those states. The great political structures of the world – the European Union, the United States, NATO, EFTA, the United Nations, and so forth, are built on an architecture of law. It is our commitment to the Rule of Law, to a government of laws not of men, which defines our place in the world, and provides the structure for our relationships with other countries.

To be more specific, this debate, the debate of Scotland’s constitutional future in international terms should focus on:

  • our currency and the global financial system
  • how we contribute to global defence and security
  • how we address international problems such as climate change
  • how we assist developing and emerging nations
  • and our membership of international institutions – NATO, the IMF the G8 and G20, and the European Union.

Much of my political life has been spent in pursuit of two great ideals: European integration and the devolution of power - these have been pretty fundamental issues for the Liberal Democrat Party, not as ends in themselves, but as means to providing the constitutional framework within which freedom, security and individual opportunity can thrive. But whilst not necessarily sharing party goals, I know politicians in all the main parties in Britain who have shared the twin aims of effective British membership of the EU and the devolution of power throughout Britain. My concern is that the prospect of Scotland leaving the UK puts both those aspirations in jeopardy and my objective today is to set out my understanding of that risk.

The European project is a legal construct. The European Union constitutes a new legal order and when we consider Scotland’s place within that order we have to consider it as a matter of international and EU law. It will simply not do to say that we can put the law aside in considering the future of the European Union. The institutions of European Union arose from the ashes of a continent which had been shattered by the actions of governments who held the Rule of Law in contempt, who regarded ‘rights’ and ‘justice’ as affectations. So it not surprising that law is at the core of the European project. Of course there is a political aspect to the question of Scotland and the UK’s role in that project, but we must first ask ourselves with as much objectivity as we can manage whether, in legal terms, an independent Scotland would be a member of the European Union.

We are told, by the Scottish Government that if Scotland left the UK it would continue as a member of the European Union. This view has underpinned the SNP’s main policy theme – ‘independence in Europe’ (since 1989: http://www.heraldscotland.com/sport/spl/aberdeen/sillars-backs-europe-casein-20-000-words-1.625886 and reaffirmed since, see, eg, SNP Election Manifesto April 1997: www.politicsresources.net/area/uk/ge97/man/ snp 97.pdf) – for many years now, and it has proved to be a successful line to take. But I think the time has come in this debate where we need to move away from mere assertion and look in more detail at the issue, having regard to both international and EU law, and to international legal precedent. I must stress that I have not, and would not, ask to see the Scottish Law Officers’ advice, or even seek confirmation that such advice had been sought – but the Scottish Government is not precluded by any code from setting out in detail its understanding of the law on an important issue such as this.

Quite clearly an independent Scotland would be an obvious candidate for EU membership – but the terms of such membership would have to be negotiated with the EU Member States; because the EU Treaties would necessarily have to be amended to make provision for Scotland as an independent Member State. But suppose we accepted that Scotland could become a member of the EU, with the agreement of the existing Member States. If Scotland were to become a Member State in its own right it would be on terms agreed for its accession as a separate state. Would those terms include the UK’s current optouts? Could Scotland negotiate itself into Europe but out of the Schengen arrangements (on open borders)? Could it negotiate itself out of the Eurozone or would it be obliged to adopt the Euro as its currency? You may say ‘maybe it could and maybe it could not’ – but one thing which does seem clear is that there would have to be negotiations. And one thing which does seem certain is that until any such negotiations were concluded there would be inevitable uncertainty.

This position was recently (last month) confirmed by Jose Manuel Barroso, the President of the European Commission. Speaking on BBC Radio 4’s “The World at One”, Mr Barroso said, quite rightly, that he would not speculate on possible secessions from the EU, but that in order to join the EU there was a procedure to be followed. He said:

It is a procedure of international law. A state has to be a democracy first of all and that state has to apply to become a member of the European Union and all the other Member States have to give their consent. A new state, if it wants to join the European Union, has to apply to become a member of the European Union like any state. In fact I see no country leaving and I see many countries wanting to join. (http://www.bbc.co.uk/news/uk-scotland-scotland-politics-19567650)

He said that a new state, if it wants to join the European Union has to apply like any other state.

A crucial question, therefore, is whether Scotland, if it left the UK, would be a new state. It might be argued, and I believe it has been argued, that the UK as a whole ceases to exist and that two new states are formed. That view seems to me to be to against both precedent and common sense. When the Irish Free State was established in 1922, the United Kingdom continued to exist. The Russian Federation, for example, may seem a much smaller entity than the Soviet Union, but despite several new states having been formed from parts of the old Soviet Union, the Russian Federation was recognised as the continuation of the Soviet Union. Even the independence of India and Pakistan in 1948 involved the creation of one new state – Pakistan – and a continuing state, India. More recent precedents include the separations of Ethiopia and Eritrea in 1993, and Sudan and South Sudan in 2011, where Ethiopia and Sudan were recognised as continuing states. There are some precedents which may appear to point in the other direction, such as Czechoslovakia. However, that is unlikely to serve as a precedent for a number of reasons. For example, in that case, the Czech and Slovak parties agreed that the new states of Slovakia and Czech Republic would both be successor states and that Czechoslovakia would be dissolved.

It is possible to discern some general principles which offer us guidance on the issue. Michael Scharf of Case Western Reserve University identified (Michael P Scharf, “Musical Chairs: The Dissolution of States and Membership in the United Nations” (1995) Cornell ILJ 29, cited in Matthew Happold, “Independence: in or out of Europe? An Independent Scotland and the European Union” (2000) ICLQ 15). the relevant factors in determining whether a state continues or whether the state’s international personality has been extinguished. These include whether the potential successor state has:

(a) a substantial majority of the former member’s territory, (b) a majority of its population, (c) a majority of its resources, (d) a majority of its armed forces, (e) the seat of government and control of most central government institutions, and (f) an agreement on UN membership following independence.

If the people of Scotland were to vote for independence it would be, of course, not be the first time that a fairly substantial amount of territory and population had left the United Kingdom. The idea that because the Acts of Union in 1706 and 1707 created the UK then their repeal today would extinguish the UK seems to me to ignore Northern Ireland (not to mention Wales). The United Kingdom is not simply a partnership between the Scots and the English – that seems quite an insulting position to take towards several million of our fellow countrymen.

It also seems to be based on an assumption that our constitutional arrangements remained unchanged from 1707 onwards. The UK Parliament has, from soon after the Union and fairly regularly ever since, pretty freely amended the Acts of Union, and the way in which the UK is constituted. And, in 1801, Ireland became formally part of United Kingdom – which then had a new name and a new flag – following Acts of Union passed in the British and Irish Parliaments. Those Acts of Union were no more protected from amendment than the 1707 Union – even to the point where they no longer applied to 26 of the 32 counties of Ireland. In 1922, the Irish Free State was created as a new state which subsequently became the Republic of Ireland. But it cannot be seriously suggested that this was a development which extinguished the United Kingdom as a state in international law. The United Kingdom of Great Britain and Ireland may have become known as the United Kingdom of Great Britain and Northern Ireland, but it did not cease to exist or lose its membership of any international organisations (including, at that time, for example, the League of Nations).

Also, as a matter of common sense and fairness, it is one thing to ask the people of Scotland in a referendum whether they wish Scotland to be an independent country separate from the United Kingdom. It is another thing to give Scotland alone the power to decide whether the United Kingdom ceases to exist or not.

Could one possible outcome of a referendum in which only those resident in Scotland can vote be the end of another state and all its international obligations?

Whilst further work will be undertaken to examine these issues in more detail, the more likely conclusion – and the one which people must weigh in the balance before casting their vote – is that the UK would carry on with its international obligations, including EU Membership as at present. And the likely consequence is that Scotland would have to apply to join the EU. That is, if it joined the EU, it would do so on terms, and it is those terms which would create considerable uncertainty about the future of Scotland outside the UK. Imagine that uncertainty replicated across many of the international organisations of which the UK is a member.

Another possible line of argument is that both a newly independent Scotland and the remainder of the United Kingdom would be successor states and would inherit the international obligations of the UK. To some extent, this argument is based on a reading of the Vienna Convention on the Succession of States in Respect of Treaties. The 1978 Convention says (at Article 34) that where a part or parts of a territory or state separate to form one or more states, whether or not the predecessor state continues to exist…any treaty in force at the date of the secession…continues in force in respect of each successor state.

Based on a reading of this Article it is argued that treaties establishing the European Union would continue to apply seamlessly in Scotland as in the rest of the UK after separation. However, there are two difficulties with that proposition. The first is that Article 34 must be read along with Article 4 of the Convention, the effect of which is that where the Treaty in question is a “constituent instrument of an international organisation” Article 34 only has effect without prejudice to the rules of admission of that international organisation. In short, the rules of admission to EU would take precedence.

The second difficulty is perhaps even more fundamental: this Vienna Convention is not relevant to Scotland, or any other part of the UK, because the UK is not a contracting party to that Convention. Hardly any of our partners in the EU are contracting parties to that Convention - to be precise: Cyprus, the Czech Republic, Estonia, Slovakia and Slovenia, which sounds like one of Scotland’s World Cup Qualifying Groups. In fact only 22 of the 193 member states of the UN are contracting parties, so it hardly seems to enjoy wide acceptance around the globe.

You may say I have not given an unbiased account of the prospects for Scottish EU membership. Of course as lawyers we do not assist our clients if our judgment of the legal position is clouded – but on the question of whether Scotland benefits by being part of the UK, I have made my own view and that of this Government quite clear. In January, while announcing to the House of Lords that the Government would not stand in the way of a referendum which was legal, fair and decisive – indeed it would facilitate such a poll – that did not mean we would be neutral on this issue. I said:

This Government believe passionately in the United Kingdom. For over 300 years, our country has brought people together in the most successful multinational state the world has known. This Government are clear that independence is not in the interests of Scotland. The United Kingdom brings strength to Scotland and Scotland brings strength to the United Kingdom.

One of our tasks as a government is to give the people of Scotland the evidence and the facts they need to inform their decision in a referendum. We have been quite open about the fact that work is continuing on “the Benefits of the UK”. The Secretary of State for Scotland, Michael Moore, made an announcement about this programme of work to the House of Commons in June this year. That work is being carried out with confidence that Scotland will, of its own choice, remain in the UK – we are not contingency planning for any other outcome. The aim is that, in advance of any referendum, the Government will provide detailed evidence and analysis to help the electorate assess the benefits of remaining in the United Kingdom. The work will be carried out across government, and will involve expert support from leading academics, and from think tanks and other expert bodies.

That work is important because if we are to raise the level of debate to a higher level, as I proposed earlier, then it must be informed by thorough evidence and analysis. If we are to ask people to vote for a continued and developing partnership with the rest of the UK then we need to provide a robust and rigorous account of the benefits of that partnership.

As you can see, some of the issues I have mentioned – EU Membership, legality of a referendum, rule of law – have a legal cast to them. So my office has an important role in the task of preparing the case for the UK. To ensure that we started this programme of work as fully informed as possible, during the summer I convened a forum of independent legal experts here in Edinburgh. Some of you may recall reports of the Scottish Government’s Education Minister dismissing this forum as a “kangaroo court” – it included, among others, six university professors, the President of the Law Society of Scotland, the Dean of the Faculty of Advocates and a former judge of the European Court of Justice – each acting in a personal capacity so perhaps it was one of most overqualified kangaroo courts ever assembled.

I asked these senior practising lawyers and other legal experts to consider questions such as: what are the strengths of the current constitutional arrangements? What are the legal and constitutional decisions that a separate Scotland would have to make? The forum was only the beginning of our work and I look forward in future to being able to share with you more about the work being done in these areas.

One theme which we discussed at the forum is that it is perhaps not always fully appreciated that among the many things which would be lost on independence would be devolution itself. The Scottish Government suggest that those who are opposed to independence have nothing to offer as alternative. I understand why they are adopting this tactic, but of course it completely overlooks the fact that what we are offering is Scotland’s continuing place within the United Kingdom, and continuing devolution for Scotland. By contrast, the SNP want to bring devolution to an end.

The strengths of the current devolution settlement were discussed at the forum – the practical reality of devolution and the way in which it gives expression to the interdependence of the countries which form the UK. We considered the constitutional process which led to the Scotland Act 2012 – the way in which parties in government and opposition worked together (in the Calman Commission) to deliver changes to the settlement as it stood in 1998 and how those proposals became law (notwithstanding a change of government in the UK, and without a referendum). That Act gave further powers in the fields of broadcasting, misuse of drugs, drink driving, and the Crown Estate. It clarified other aspects of our constitutional arrangements – the time limits for claims relating to the European Convention on Human Rights and the jurisdiction in criminal cases of the UK Supreme Court. It gave new borrowing powers to the Scottish Ministers. It also included a huge transfer of tax powers to the Scottish Parliament – a transfer which I described last year as the largest in the history of the UK. The effect of that transfer of fiscal powers is still to be felt and when those powers are used – when the Scottish Ministers have to make decisions on tax raising as well as tax spending – the devolution settlement will take on an entirely new colour. It is worth bearing in mind that devolution is still a relatively young constitutional development – it seems to me that it would be a great pity for that project to be abandoned just as it is about reach fruition and start on a new phase of delivering real benefits for the people of Scotland.

Against that background one contribution to our legal forum was the point that in the debate between independence and devolution, there is no status quo to defend. The Scotland Act 2012 has kicked off a process of change which will continue as the range of fiscal and borrowing powers in and resulting from the Scotland Act 2012 come into force and are put to use.

Section 30 orders are an example of this process – we hear a lot about section 30 of the Scotland Act in the context of how, legally, a referendum can be delivered, but it is also an important aspect of the day to day working of the devolution settlement. An order under section 30 can amend the legislative competence of the Scottish Parliament and is subject to approval by both Houses at Westminster and by the Scottish Parliament. It was a section 30 order which allowed the Scottish Parliament to deal with the issues raised by the Somerville judgment in 2007 (on the time bar applying to human rights claims raised under the Human Rights Act and claims raised under the Scotland Act). Another section 30 order (in 2002) gave competence to the Scottish Parliament to legislate for new railways – and new services (Stirling to Alloa, or Bathgate to Airdrie for example). In 1999, soon after devolution, the section 30 power was used to ensure that the Scottish Parliament could legislate for public access to information held by devolved public bodies in Scotland, including the Scottish Parliament itself.

Another benefit of the current arrangements which we discussed at the forum was the use of legislative consent motions in the Scottish Parliament. There is, as you know, nothing in the devolution legislation which prevents the UK Parliament from legislating in any devolved area – in fact there is specific assertion of continuing Parliamentary sovereignty in section 28(7) of the Scotland Act 1998. However, it was the clearly stated position of the UK Government at the time that the Scotland Act was passed that it would not normally seek to legislate in devolved areas without the consent of the Scottish Parliament. This commitment – the ‘Sewel Convention’ – has survived a change of government and continues to be observed. Motions before the Scottish Parliament seeking such consent are such a common part of Parliamentary business that they rarely draw comment. There has been no observable change in this practice since the SNP gained a majority in the Parliament – and every debate, or accompanying memorandum, for an LCM tends to produce arguments for legislative co-operation within the UK.

In January 2010, for example, the then Minister for Community Safety proposed that a UK Bill be used to reform the law of bribery in Scotland, and told the Parliament:

The best option to reform the law of bribery in Scotland is to promote an LCM and to include Scottish clauses in the UK Bribery Bill. Uniformity across the UK would provide a more effective and workable legislative framework than would be possible if separate bills were introduced in the two Parliaments. It avoids difficulties of cross-border bribery, which might arise should the law on one side of the border be perceived as weaker than the law on the other.

…. It is in the interests of good governance and an effective justice system that the provisions of the Bribery Bill, so far as they fall within the legislative competence of the Scottish Parliament, should be considered by the UK Parliament.”

A couple of months earlier (November 2009) John Swinney, as Cabinet Secretary for Finance and Sustainable Growth at the time, said in relation to the Financial Services Bill that:

There is no added value in separate legislation as Scottish interests are reflected in the Bill and a separate process would be complex and require further time and resources to achieve the same policy aim.

I have made similar points in the Scottish Parliament myself - in 2001, I proposed a Legislative Consent Motion for what became the Proceeds of Crime Act, at that time a Bill before the UK Parliament. I said on that occasion that:

“…to attempt to legislate at Westminster for the reserved matters in the Bill and at the same time to legislate in the Scottish Parliament for devolved matters would be highly complex and might lead to loopholes and inconsistencies between the two systems. Comprehensive UK legislation [would] prove more effective and avoid the risk of inadvertant safe havens on either side of the border.” (From the Official Report for 24 October 2001).

So of course there are occasions where there is a benefit in consistent UK legislation; and there are other occasions where it may not be a good use of resources to put separate legislation before the Scottish Parliament.

The current devolution settlement is in fact an ingenious constitutional device to allow this kind of flexibility. The advantages of devolution, of co-operation within the framework of the United Kingdom are best seen at the level of day to day government and legislative business – perhaps rarely making the headlines. It is important that we can ensure that those aspects of the settlement which are quietly effective and efficient are not ignored in the debate to follow any agreement on a referendum date. One of the great advantages of the existing constitutional arrangements is that Scotland presently has two Governments acting in its interests.

At times, from reading the newspapers, you may get the impression that Scotland’s two Governments are constantly in dispute, seeking to undermine each other. This would clearly not be in the interests of the people of Scotland. And I am pleased to say that there are countless cases in which the UK and Scottish Governments have worked together in order to benefit the people of Scotland.

As I conclude, let me provide you with some very topical examples of this. In each of the examples, I would encourage you to think about what might be the case in the event that Scotland were to become independent.

My first example is in the area of alcohol. Many of us may be looking forward to a drink after this lecture. But I am sure we are all conscious of the great problems that alcohol causes for countless people in Scotland every year. In light of this, my party supported the Scottish Government’s proposals for the introduction of a minimum price for alcohol, and indeed the UK Government will shortly be consulting on the introduction of minimum pricing in England and Wales. The proposal for England and Wales has the backing of the Royal College of Physicians and the Association of Chief Police Officers and could mean 50,000 fewer crimes and around 900 fewer alcohol related deaths per year in England and Wales by the end of this decade.

But there is a problem. As has been widely reported, the Scotch Whisky Association and other drinks bodies are challenging the Scottish Parliament’s legislation in the courts, and the European Commission is considering whether the legislation is compatible with EU laws on free trade.

It would be open to the UK Government to sit on the sidelines, and watch while the Scottish Government seeks to fend off these challenges. But we will not do that. When the case is first heard in the Court of Session later this month, the UK Government will be standing shoulder to shoulder with the Scottish Government to address the EU law points, seeking, where possible, to support and complement the arguments that they present, and in particular ensure that the Court has the benefit of the UK Government’s experience and expertise in EU law. You see, both Governments want Scotland to be a healthier and safer place. And so both Governments will act together in trying to ensure that minimum pricing can proceed. This strong and coordinated approach to tackling some of Scotland’s deep rooted problems is possible because we are a United Kingdom.

My second example relates to policing. As many of you know, I served for a number of years as Scotland’s Justice Minister as well as Deputy First Minister, and I have great respect for the job that is done by our police forces to keep every one of us safe. My party does not support the Scottish Government’s plans for a single police force, since we have concerns about the loss of local accountability. Nonetheless, this is not stopping the UK Government working with the Scottish Government to ensure that the new single Scottish police force can come into operation next Spring. What is probably not widely recognised is that although policing is generally a devolved matter, it touches on many issues that fall within the responsibility of the UK Government, such as terrorism, the regulation of investigatory powers and the misuse of drugs.

Criminals do not respect borders, and so we need to ensure that the new Scottish force can receive support and co-operation from police in other parts of the UK. To deliver all of this requires the cooperation of the UK Government. And so even this week, lawyers in my department are working on detailed legislation that will be laid at Westminster and that will ensure that the new single Scottish force can operate effectively. We are a United Kingdom, and so we work together with the Scottish Government to facilitate the implementation of the Scottish Parliament’s legislation.

I am confident that my final example will resonate with many of you here today who are members of the Scottish legal profession. We recognise that increasingly we operate in a global market, and we are not immune to the challenges that this presents for the legal profession in Scotland. But it also provides opportunities. There is no reason why global corporations cannot make use of the services of Scottish law firms, or choose to have their disputes resolved in Scotland. I have therefore been working with my colleagues in the UK Government to ensure that when we promote the UK as an excellent forum in which legal business can be undertaken, we make clear that the UK offers a choice of legal jurisdictions, and set out some of the benefits that the Scottish legal system offers. Just yesterday, I spoke at an event at the International Bar Association in Dublin. At this gathering of lawyers from around the world, I was able to make clear the UK Government’s commitment to promoting the Scottish legal system, a tangible example of which is ensuring that Scottish firms are able to participate in some of the foreign trade missions that we operate. And, together with Rosanna Cunningham, we both encouraged those present to consider Scotland and the Scottish Arbitration Centre as a venue for resolving disputes.

As we approach the referendum, perhaps it is time to recognise the many benefits of our existing legal and constitutional arrangements that we so often take for granted.

Devolution is working. Devolution is enabling both the Scottish Government and the UK Government to work in the interests of the legal profession in Scotland, to work in the interest of the safety of the people of Scotland, and to work in the interests of the health of people of Scotland. Day in, day out, our mature and stable legal systems function effectively and continue to evolve in order to benefit all of the people in these islands. As we approach the referendum, let us not be afraid to engage in a mature and reasonable debate about the many legal issues that are thrown up by the independence debate.

But let us also recognise and seek to protect the benefits that our existing legal arrangements bring to all of us within this United Kingdom.

Published 3 October 2012