Constitutional issues in the referendum debate

Constitutional issues in the referendum debate.

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

The Rt Hon Lord Wallace of Tankerness QC

It is a pleasure to be here today at the University of Aberdeen. This is one of our great ancient institutions – I’m told the fifth-oldest university in the English speaking world.

I’m conscious that there’s a great deal of history in these buildings with the echoes filling the corridors:

From great scholars such as Thomas Reid (who was the founder of the Scottish School of Common Sense, a key enlightenment figure) to leading scientists such as Patrick Manson (who first proposed that malaria was transmitted by mosquitoes)

Leading politicians such as Alistair Darling the former Chancellor of the Exchequer a lawyer himself and now leader of the Better Together campaign to broadcasting personalities such as James Naughtie and Radio 5’s Nicky Campbell.

And in the school of law, in addition to Alistair Darling, contemporary leading public figures, who passed through this School of Law include Community Safety & Legal Affairs Minister, Roseanna Cunningham, the present Lord Advocate, Frank Mulholland and the recently appointed Secretary of State for Scotland, Alistair Carmichael.

Distinguished company indeed. It may well be you join that distinguished company.

Many of my legal colleagues in the Office of Advocate General are graduates of this faculty – drafting UK legislation, advising government departments, and representing the UK government in the Scottish courts.

I thought I should start by saying something about my role as Advocate General for Scotland.

Together with the Attorney General and Solicitor General for England & Wales, we make up the team of UK Government law officers.

The role of lawyers in government is as old as government itself; and the appointment of specialist “law officers” dates back to the 15th century. The office of Lord Advocate can be traced back to at least 1483, and the first appointment of an English Attorney General is recorded in 1461. The office of Advocate General for Scotland is of more recent origin.

When I was appointed in the days after the formation of the coalition government in May 2010, a local newspaper in Dumfriesshire, where I was born and brought up, phoned up to inquire whether I was the first Liberal Democrat to hold the post. They had to be told that I am only the third person ever to hold this office.

It was created as part of the devolution settlement in the Scotland Act 1998. Prior to devolution, the Lord Advocate and the Solicitor General for Scotland advised the UK government on Scots law. Devolution transformed them into ministers of, and legal advisers to, the Scottish Government.

That left a gap at UK level, to be filled by the new office of Advocate General for Scotland. Assisted by a team of around 35 lawyers, my role is to provide the UK government and all its departments with Scots law legal advice. I am ultimately responsible for litigation involving the UK government in Scotland’s courts and tribunals. I may also represent the UK Government before international courts, as I did last year before the European Court of Justice.

And I have a number of important public interest functions under the Scotland Act 1998. Effectively, I have a role in “policing” the devolution settlement by way of powers to challenge Acts of the Scottish Parliament, or acts (with small “a”) of the Scottish Ministers, that may be outside competence.

I can also intervene in criminal and civil court cases where devolution or compatibility issues have been raised. Last year, for example, I appeared in the Supreme Court in the case brought by Imperial Tobacco challenging the legal competence of two sections of the Tobacco & Primary Medical Services (Scotland) Act, passed by the Scottish Parliament in 2010.

However, just as when I was a member of the Calman Commission on devolution, I little thought that I would be responsible for taking the legislation implementing those recommendations through the House of Lords; little did I think on my appointment in 2010 that much of my time would be taken up with issues relating to a referendum on Scottish independence.

But here we are and as we approach the publication of the Scottish Government’s White paper next week and the referendum itself, in just under ten months’ time, it is worth reflecting on the extent to which the law has played its part in bringing us to this stage of the journey.

The Scotland Act 1998 makes it clear that the Scottish Parliament does not have the power to pass legislation that relates to reserved matters. The view of the UK Government was that any Court, looking at the powers of the Scottish Parliament as they stood, would conclude that the Parliament had no power to enact legislation for a referendum on independence.

In January, last year, the then Secretary of State for Scotland and I 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.

In spite of the potential cornucopia of riches for my learned friends in the legal profession who appear in the Scottish courts, the last thing we wanted was proposals for a referendum which could be challenged in court. After white papers published by the UK and Scottish governments, and months of negotiations, an Agreement was signed by the Prime Minister and First Minister in Edinburgh on 15th October 2012.

That agreement, in which the two governments committed themselves to respecting the outcome of a fair, legal and decisive referendum, led to an order under section 30 of the Scotland Act 1998 being passed by both Houses of Parliament at Westminster and the Scottish Parliament, before being approved by the Queen-in Council. That order conferred upon the Scottish Parliament the competence or vires to legislate for a single question referendum on independence to be held before 31st December 2014. It is to the credit of the Scottish Government that they opted for that constructive approach which ensured a lawful and democratic outcome, rather than have the issue challenged in the courts. Of course last week, Members of the Scottish Parliament passed the bill for the referendum.

But my work and the work of my office didn’t stop with the passing of the order which put the referendum on a sound legal footing. Whilst obviously politically charged, issues such as the creation of a new state or the mechanisms of devolution within a state themselves give rise to important legal considerations.

Legal issues matter: they determine how a state operates on the international stage and how it organises its affairs at home. In terms of public international law, there are issues of what constitutes a state, and – crucially in the context of the present situation – issues of state succession.

It is because these issues are complex, yet so important that I established a Legal Forum to analyse, debate and challenge the legal views being expressed by the UK government.

The Education Secretary, Mike Russell described it as a ‘kangaroo court’. It included, among others, six university professors (including Professor Beaumont), 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, and without necessarily supporting the Better Together side of the debate. So perhaps it was one of most qualified mob of marsupials ever assembled.

Our deliberations together with a legal opinion obtained from two renowned legal experts in the field, Professor James Crawford from Cambridge University and Professor Alan Boyle of Edinburgh University helped influence the first of a series of Scotland Analysis Papers, which the UK Government has published to inform the referendum debate.

The opinion from Professors Crawford and Boyle concluded that, in the event of Scotland voting in favour of leaving the UK, in the eyes of the world and as a matter of law, Scotland would become an entirely new state.

In international law, new or ‘successor’ states are regarded as fundamentally different from ‘continuator’ states. A successor state, in contrast with a continuing state, does not automatically inherit the rights, obligations and powers of the predecessor.

Thus in the event of independence, the remainder of the UK – as the continuator state - would continue as before, and Scotland would form a new, separate state.

There are four key grounds for reaching this conclusion.

First, the majority of modern international precedents favour that conclusion.

Not only are there a number of international precedents but we have a precedent much closer to home. The formation of the Irish Free State in 1922 was treated as a change in the UK’s territory and not a break in the continuity of the UK.

Secondly, certain factors influence state continuity.

These include the continuing state retaining the majority of the predecessor state’s population and territory. That, of course, would be the case if Scotland were to become independent with the remainder of the UK accounting for around 92% of the population and 68% of the territory of the UK.

Thirdly, there is the likely recognition by third party states.

Here, the United Kingdom’s position on the international stage is significant. It is one of the 5 permanent members of the UN Security Council, a key member of NATO and the EU and party to several thousand bilateral and multilateral treaties.

The international community is likely to recognise the remainder UK as the continuing state – for to do otherwise would cause enormous disruption within the international institutional framework.

And fourthly, the legal opinion makes clear that the only way that UK and Scotland could both become new states would be if the remainder of the UK agreed to become a ‘new state’.

The so-called velvet divorce of the Czech Republic and Slovakia, where two successor states emerged, is often prayed in aid of this line of thinking. The crucial difference with Scottish independence is that the extinction of Czechoslovakia was effected by the consent of both new states – neither wished to claim continuation of its identity. But in the present case, it is hard to envisage any scenario whereby the UK Parliament would ever have a mandate from the people of the remainder of the UK to dissolve the UK by voting the state out of existence.

To most people it would surely seem obvious that independence would mean Scotland becoming a new state – how could it mean anything else?

But legally, this position has very important consequences for Scotland on the world stage and at home.

And yet, the Scottish Government doesn’t always appear to acknowledge it. They seem to suggest that as a result of a “yes” vote in Scotland the entire UK would dissolve along with the Treaty of Union. That somehow, after independence, Scotland would get to keep what we have now because the government of the remainder of the UK, other nations, and international organisations would agree to it:

• They claim that they would agree to continuous EU membership with all the terms the UK currently enjoys;

• Agree a currency union which may not be in the interests of either Scotland or the rest of the UK;

• Agree membership of NATO, despite their opposition to nuclear weapons.

I believe the Scottish Government’s White paper on Tuesday must surely address both the legal fundamentals and what consequences the form of independence the Scottish Government are proposing would have.

There are profound domestic consequences.

Subsequent Scotland Analysis papers, published by the UK Government, have explored a number of these.. For example, following independence, the institutions of the UK would continue to undertake their functions on behalf of the remainder UK.

Two pertinent examples are the Security Services and the Bank of England. An independent Scotland may, as part of the negotiations, request the rest of the United Kingdom for agreements whereby it makes use of the continuing UK’s existing institutional mechanisms. But that would depend on the outcome of negotiations with the remainder of the UK.

And those negotiations could only begin following a vote in favour of leaving the UK. At present there is no constituent body to represent solely the interests of England, Wales and Northern Ireland. The UK Government operates on behalf of the whole of the United Kingdom – including Scotland - and will continue to do so unless and until people in Scotland vote to leave it.

So we cannot begin now to predict the outcomes of those negotiations.

And then there are obvious international implications if Scotland becomes a new state.

First, there are implications for membership of international organisations.

On independence, the remainder of the United Kingdom, continuing as the same state as before, would maintain its membership of international organisations on the same terms as it does now. This includes the United Nations, the European Union (of which more in a moment), NATO and the International Monetary Fund among many others.

An independent Scotland, however, would have to apply to become a member of whichever organisations it wished to join. There is no doubt that in some cases that would be relatively straightforward –for example, application for membership of the UN, might not be problematic. But application for membership of other organisations would depend on whether an independent Scotland would meet the criteria for membership.

An application to join NATO, for example, would require the North Atlantic Council to decide whether Scotland met the membership criteria. That is far from certain.

There are implications too for international treaties. Following independence, the remainder of the UK would continue as the party to the many thousands of international treaties that it is party to now. An independent Scotland, however, would need to undertake a process of becoming party to, or confirming participation in as many of these treaties as it wished to become a party to.

In some cases, this would be straightforward, for example in the case of many human rights treaties. In many others, it would not, and treaties to which an independent Scotland wished to accede may require re-negotiations that take time to conclude.

The question of membership of one particular international organisation, the European Union, has generated a great deal of discussion.

The position of the European Union is unique in many ways – it has its own body of law, its own institutions, and in that sense is unlike any other international organisation – it is a “new legal order of international law”. Nevertheless, it is still an international organisation, and in the absence of any specific provision in its rules to the contrary, a new state such as Scotland would not join automatically on separation from an existing Member State – as the Scottish Government have claimed in the past.

There is no express treaty provision for this process in the EU’s own membership rules, and so there is no reason to think that Scotland would be entitled to join without some form of accession process, and therefore no legal basis on which Scotland could somehow automatically inherit the UK’s existing opt-outs.

It has been argued, notably by Professor Sir David Edward, that in accordance with obligations of good faith, sincere cooperation and solidarity, the EU institutions and all the Member States (including the UK), would be legally obliged to enter into negotiations, before separation took effect, to determine the future relationship within the EU of the separate parts of the former UK and the other Member States.

But crucially, on either view, an independent Scotland would have to go through some form of negotiation as to the terms of its membership.

Crucially, it would not automatically inherit the terms of membership currently enjoyed by the UK. It would not inherit any of the UK’s opt-outs – in relation to the Euro, and the Schengen provisions on border control - nor would it inherit the UK’s budget rebate, worth some £3 billion to the British taxpayer in 2011.

Both the process and the terms of an independent Scotland’s membership would have to be agreed by every one of the EU’s existing 28 member states. As Sir David, former judge of the European Court of Justice, said at one of my legal forum meetings, “All that is certain is uncertainty.”

And here is the real challenge to the Scottish Government. To what extent will the white paper own up to the uncertainties which would inevitably flow from a ‘Yes’ vote in the referendum?

In June 2011, a spokesman for Alex Salmond said, “the people of Scotland have the right to choose independence on the basis of one referendum agreed by the Scottish Parliament, on a published proposal, which is then implemented – exactly as was done for devolution in 1997”

I accept, the UK Government accepts, that the people of Scotland have the right to make that crucial choice on our future in the one referendum to be held on 18th September next year. But, as an active participant in the 1997 referendum I believe there are two fundamental reasons why that this independence referendum is most certainly not comparable to 1997.

The 1997 White Paper was rooted in the work of the Scottish Constitutional Convention, which was established in 1989 and deliberated for many years. I was a member of that Convention throughout its lengthy deliberations.

It was an open process. It engaged Trade Unions, Churches, all branches of civic Scotland. Nor was it the preserve of one political party. The SNP were in at the beginning but then left. But the Liberal Democrats, Labour, the Greens and other small parties were all represented. It was conceived in the best traditions of Scotland’s constitutional development. And I always thought it was to the huge credit of the incoming Labour Government that the proposal they brought forward after their election reflected so faithfully the agreed Convention scheme.

By contrast the Scottish Government’s white paper has been developed under conditions of the strictest secrecy and will be the product of one single party – deliberations at the recent Scottish Green Party gathering amply demonstrated the differences between the SNP and the Greens approach. The 2013 White Paper will not be able to claim the consensual civic and cross-party origins of the 1997 White paper.

There is a more fundamental difference. The 1997 blueprint for a devolved Scottish Parliament was proposed by a new Government with a large majority in the House of Commons which could be confident of delivering the content of its White Paper. That meant voters in the 1997 referendum could be confident that the Scottish Parliament which emerged from the subsequent legislation would bear a strong resemblance to the Parliament proposed in the White Paper.

The crucial difference with the 2013 White Paper is not only that it won’t command the consensus so evident in 1997, but also that it is being published by a government which can’t promise or guarantee delivery.

That’s not a criticism. By its very nature, it deals with matters which are speculative and not within the capacity of the Scottish Government to deliver. That is because it depends on the position taken by other bodies whose own interests will be affected. It’s not just the negotiating stance of the government representing the rest of the United Kingdom (rUK) which would be relevant, but as is seen from our legal analysis, much would depend on the position taken by the governments of twenty eight other EU members or the governments of the other members of NATO. Applying to join NATO, or the EU, or negotiating your relationship with other UK countries would require negotiations in which the interests of those countries must be represented.

Consider, for a moment, the thorny issue identified by the Institute of Chartered Accountants of Scotland of non-fully funded UK pension schemes which points out that stringent EU rules mean deficits are not allowed in defined benefit schemes which cross national borders.

When this was raised by the Institute of Chartered Accountants for Scotland, the Scottish Government, which readily understands that people want reassurance rather than uncertainty having first denied that the problem existed, then changed tack and claimed it would be overcome by an ‘ EU derogation’ Now we know that no negotiations on this have taken place with the EU; so on what basis can the Scottish Government claim that the EU will amend a rule which binds 28 other countries in order to allow Scotland to do something entirely different?

Nothing in a White Paper produced by a single party government at Holyrood can commit all 28 EU countries to the SNP’s proposals. Nor the same number of different countries who make up NATO.

Of course, there are parts of the White Paper which might be within the ‘gift’ of the Scottish Government to deliver. The currency issue is illustrative of this.

If Scotland votes for independence there are four possible options on currency:

• Adopting a separate new currency • Keeping sterling unilaterally – something called ‘sterlingisation’. • A formal currency union between Scotland and the rest of the UK. • Or it could join the euro.

At various points in recent history the Scottish National Party has supported every one of these options.

But it is crucial for us to understand the fundamental difference between all of these options.

The first two – creating a new currency or unilaterally retaining sterling - could be done on independence with little need for much, if any, negotiation.

An independent country could of course set up an independent currency.

Similarly an independent Scotland could unilaterally choose to use the pound sterling – just as they could choose to use the US dollar as Panama does; or indeed to use the Yen (not options I’ve heard them promote to date!)

And what is true of both of these options - separate currency and sterlingisation – is that they could be offered in the White Paper with an honest expectation of delivery.

The problem for the Scottish Government is with the latter two options – a UK currency union or joining the euro. Delivery of those options is a very different matter from setting up your own currency or simply pegging your currency to another.

But a currency union with the UK, or joining the Euro would require negotiations with the UK or the EU respectively. The terms of membership would follow negotiations: negotiations whose outcome no current government can predict, let alone guarantee.

We’ve heard many times in recent weeks that this first option is the Scottish Government’s current preference, but as we heard Carwyn Jones, the First Minister for Wales set out on Wednesday night in a lecture at Edinburgh University, there are concerns about this. The Welsh First Minister said, and I quote: “I would be uncomfortable being part of a currency union where there are competing governments trying to run it.”

So there is uncertainty.

Leaving a 300 year old union is always going to involve something of a leap into the unknown. This is not just a view held by me, or the UK Government, other constitutional experts recognise this, including Professor Adam Tomkins, John Millar Professor of Public Law at the University of Glasgow in his most recent blog post. Like me he shares a view that the current constitutional debate stands in stark contrast to our Scottish traditions of debate, consensus and collaboration.

And the way in which the Scottish Government seems to want to pursue its version of independence seems to me to increase the level of uncertainty, because of the way in which they are approaching the issues of currency, Europe, and defence among others.

All this means that for many of the legally cogent reasons I’ve outlined, there can’t be the complete picture of what independence for Scotland will mean.

One cannot reasonably expect – it isn’t a criticism - the Scottish Government to have a crystal ball to set out the future, but the test will be the frankness with which they admit those uncertainties. Paraphrasing Donald Rumsfeld’s analysis, there are a number of certain uncertainties. Aspirational claims, assertions, setting up more committees to look into them, wishful thinking won’t make them go away.

All that said, let us not forget that both Governments have committed themselves, through the Agreement of October, last year to a decisive referendum - a one-off decision.

If we vote no, we will stay in the United Kingdom and can set about the task of improving devolution still further, as all the major UK parties have committed to.

If we vote yes, as our analysis paper in February said and I quote: “Scotland would leave the United Kingdom after a period of negotiations”. No going back, no chance to think again.

If, as I hope, many of you go on to a career in the legal profession, you will quickly learn that often you have to take decisions or advise clients on the basis of the information you have before you, and not always with the complete picture.

You would be failing in your professional duty if you advised a client on what you would like to see happen, regardless of the legitimate interests of any other parties with whom you might be negotiating.

And as voters in the referendum, we will all be in a similar position.

We know broadly what it is at stake. We know what being in a devolved UK looks and feels like. We can picture, up to a point, life as a new, small independent nation outside the UK.

But we will not know everything. I hope that, after the White Paper is out, the Scottish Government will have told us as much as they can about what they will do if they win. I also hope they are honest about the uncertainties. Those are the challenges for the White Paper.

Then we must debate the issues, and on the 18th of September next year, we must decide.

Published 5 December 2013