Scottish independence referendum: Law Society of Scotland speech

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

Scottish Secretary Alistair Carmichael's speech to the Law Society of Scotland on the Scottish independence referendum.

It is a pleasure and a privilege to have the opportunity to speak at your conference about the referendum. What it means for us all – as solicitors, as individuals, as families and communities.

On 18th September - all of us who live in Scotland will have the opportunity to make our decision about our future.

It will be the most fundamental collective decision that we will ever take. It is our choice. And rightly so.

One thing that all sides of this debate agree on is that no part of the United Kingdom can, or should, be kept within the UK against its will. But we must be clear that we can only choose one option.

We can choose to remain part of a four-nation partnership that we have built together over 300 years or we can choose to leave it, and create a new separate state.

I don’t say that pejoratively – I say that factually and legally. The law has an important part to play in this debate.

After all let’s remember that the very first thing the UK Government did after the SNP electoral victory in May 2011 was to state, clearly and unambiguously, that we respected the election result and would do what was needed to make sure that the independence referendum was legal, fair and decisive.

Those three words have become our touchstone throughout this debate. We took steps in Parliament to ensure that a legal referendum could be held – to ensure there’d be no doubt about the poll. We took steps to make sure that the referendum was fair.

Instead of letting a new and untested body be created to run the referendum, we made sure the independent Electoral Commission was put in place to oversee it. To make sure that the normal, fair, rules relating to referendums across the UK apply in this case.

Fair referendum

And by making sure from the outset that we had a legal and fair referendum we have helped to ensure that the outcome in September – whatever it may be - is decisive and respected by all.

Because whilst this is an immensely powerful and emotive debate. One that raises strong feelings on either side.

In the midst of all the passion, we must have an honest acceptance of both the facts and the law.

The single most straightforward fact is that in September, if more people vote to leave the United Kingdom than vote to stay, that is what will happen.

Scotland will leave the United Kingdom. And the legal implications of that very simple fact are clear.

Scotland becomes a new separate state outside of the UK; with a new legal personality.

So today I want to set out why I believe that Scotland does well as part of the UK family.

Why as lawyers and legal professionals we have the best of both worlds as part of the United Kingdom. And why we shouldn’t walk away from it.

But before we start – let’s just be absolutely clear what we mean when we talk about the United Kingdom.

Too often I hear people describing the UK as if it were something abstract, as if it were something done to us. That is not the case. The UK is something of which we are part. Something that we helped to create

And something that we can continue to contribute to and benefit from in the future. The number of members of this society working in other parts of the UK, especially in Lodnon, is testament to that.

It won’t surprise you to hear that being part of the United Kingdom is something I’m proud of.

It is difficult to capture quite how much we achieve together – but let me set out just some of the many things that we have helped to shape and to build.

As part of the UK we are part of a large, strong and resilient economy that provides stability and opportunity to people and businesses in Scotland.

We are forecast to have the strongest growth in the G7 this year. We have record low interest rates And inflation down to just 1.7%

Together we have a strong and stable currency that has the respect of the international markets

A lender of last resort big enough to bail out the banks when they were on the brink of collapse.

Big enough to cope, even though the Scottish banking sector’s assets are 12 times the size of the entire Scottish economy.

We have a truly single jobs market with no barriers to movement, national insurance, tax or pensions.

In 2012, Scotland sold £48 billion of goods and services to the rest of the UK - double Scottish exports to the rest of the world combined and four times as much as to the rest of the EU. Every year 30,000 people live and work on different sides of the England-Scotland border.

International border

Creating an international border would affect our exports and jobs. It has been estimated that a borderless UK benefits households in Scotland by £2000 a year.

As part of the UK we have a single tax and regulatory system that allows the financial services sector and a host of other businesses to base themselves in Scotland without concern about the location of their customer base.

And that despite the fact that nearly 90% of ISAs and 80% of mortgages sold by Scottish firms are to customers in the rest of the UK.

Economic growth per person has been higher in Scotland than the UK average over the last 50 years. Our unemployment rate is lower than the UK average.

Being part of a big, successful economy with a stable currency, low interest rates and a single tax and regulatory system means:

  • our mortgage costs are lower

  • our insurance costs are lower

  • and as the supermarkets have told us our food is cheaper

Break up the single UK-wide systems of currency, tax and regulation and you lose the benefits of scale.

Whether the Scottish Government is prepared to admit it in public or not: break up the UK and you are on the fast-track to higher costs of living.

But it’s not just at home that we see benefits.

In the EU, where we have a louder voice in the Council of Ministers, speaking up for Scotland’s fishing interests, our oil & gas sector, our financial services. At the G7, G20 and NATO.

And with an overseas aid budget that is now the second highest in the world that allows Scotland to contribute more to humanitarian causes than we ever could as a smaller country

We have these things – and more - because we are part of the United Kingdom, not despite it.

Scotland’s contribution

I will never tire of talking about the contribution that we here in Scotland make to the United Kingdom, nor will I tire of talking about the benefits that we get from being part of it.

But equally I will not shy away from talking about the uncertainties and challenges that independence would bring.

All too often we see anyone who dares to raise a question, or express a different point of view get shouted down: whether on the radio, on twitter or even in our local communities.

Lawyers are not immune to this either. I remember when Jim Wallace – Advocate General for Scotland set up a legal forum to bring together the best minds in legal practice and academia to consider the fundamental legal principles at stake in this debate.

Before the forum had even met for the first time, Mike Russell had branded it a ‘kangaroo court’.

Now I’ve heard lawyers called many things in my time, but never have I heard a group that consists of six university professors, the dean of the Faculty of Advocates a former judge at the European Court of Justice and the president of this very law society called a bunch of joeys before. Extraordinary stuff.

I fully respect that nationalists are entitled to their opinion.

I disagree with it – but you’ll not find me joining in the growing trend we see from some quarters of playing the man rather than the ball.

But what I do expect in return is to see evidence.

If someone wants to argue for my country to leave the United Kingdom – I expect to see the facts that back up their position.

As lawyers we ask for no more in our daily professional lives. And on a decision as fundamental as this we should get no less.

I know that is something the Law Society feels very strongly about. You have called repeatedly for this to be an informed debate.

Informed debate

We agree – and that is why from the start of 2013 the UK Government has embarked on a detailed programme of analysis, assessing the contribution made by Scotland and the benefits received as a result of being an integral part of the United Kingdom.

The very first of our Analysis papers looked at the constitutional framework of the UK. It examined the benefits of the best of both worlds: a Scotland with strong - and growing - devolved powers within a stable and diverse United Kingdom.

And it looked at the legal implications that flow from choosing to leave the United Kingdom. Why did we start with this legal and constitutional overview?

Because the law lies at the very heart of so much of what we do.

Of course politics and politicians are important – (well I would say that wouldn’t I.)

But absolutely fundamental to this debate is the question of what it means to be part of a state, and what it means to create a separate and new state.

Our first paper contained legal advice from two leading experts on international law: James Crawford SC, Whewell Professor of International Law at the University of Cambridge and Alan Boyle, Professor of Public International Law at the University of Edinburgh.

Crawford and Boyle’s advice is categorical: in the event of a vote in favour of leaving the UK, in the eyes of the world and in law, Scotland would become an entirely new state.

Now there are plenty of folk out there that do not find this news rocket science. Indeed why would they.

If the objective of those arguing for independence can’t be summed up by the simple statement: vote yes to leave the UK and become a separate state, then I don’t know what will do it.

But as lawyers we know quite how much this seemingly logical and simple statement means in practice.

A vote to leave the UK means leaving UK institutions. It means leaving UK membership of international organisations. And as we have set out very clearly it means leaving the UK pound.

Deciding to leave and go it alone is a choice that is open to us, but we all must realise and accept the realities that go with that choice.

As part of the UK we have a stake in it. We can help to shape the UK today and the UK we will have tomorrow.

But if we leave it – those decisions and that future - will not belong to us anymore.

Those who support the nationalist agenda would no doubt cheer this statement: but I personally think that we’d all be the poorer for it – right across the United Kingdom.

As someone who spends part of my working week in London, part in Edinburgh and part in the Northern Isles I get to see first-hand the diversity and difference that exists across the UK.

Not just our landscapes, but our language, our culture, even our culinary tastes.

But in amongst all that diversity and difference, there runs a set of very common concerns, common hopes and aspirations. That is what is so very special about our United Kingdom – it’s ability to absorb difference and yet bring unity.

We don’t have to look very far to see that first-hand. From the very outset, being part of the United Kingdom protected and enshrined those things that we treasure here in Scotland:

  • our Churches
  • our education system
  • our law

Right from the very outset of the United Kingdom Scots law has been protected and enshrined.

Article 19 of the Treaty of Union provided for the continuation of Scotland’s separate legal system

Being a part of the United Kingdom has never meant assimilation – of people, culture or law.

Scots law has had an influence on law south of the border.

Liberal doctrines in the criminal sphere, such as diminished responsibility and provocation were developed in the Scottish courts and only later adopted in legislation applying to England and Wales.

If anything devolution has increased this cross-fertilisation.

The Scottish Parliament pre-empted the UK Parliament in the introduction of, smoking ban and legislation on forced marriages. And the coalition Government pledge in its Programme for Government to ‘adopt the protections of the Scottish model for the DNA database’ had its origins in the Police, Public Order and Criminal Justice (Scotland) Act 2006.

The UK Government fully respects Scots law – and in fact a large part of my Office’s work and the work of the Advocate General and his team of lawyers is about ensuring that every piece of UK legislation recognises, respects and reflects Scots law.

As part of the UK Scots law is respected.

In fact it is a great irony to me that right now the greatest threat to the distinctiveness of Scots law seems to come from those who are arguing for independence.

The abolition of the need for corroboration in criminal trials;

The loss of locally delivered justice through a network of Sheriff Courts that is now being salami-sliced;

The creation of a single police force, removing accountability for local policing from the communities being served;

The increased use of stop and search powers.

The Scottish Government’s policies relating to all four strike at the very heart of our legal system here in Scotland.

I’m opposed to the Scottish Government’s attempts to scrap the centuries old requirement for corroboration.

The abolition of corroboration is opposed by people across the legal profession, from Senators of the college of Justice to local solicitors.

The ending of the need for corroboration threatens to tip the scales of justice. Miscarriages of justice are an affront in a civilised society, yet these proposals risk more wrongful convictions.

I think back to the late eighties and the early nineties and seeing the convictions of the Birmingham Six and the Guilford Four quashed south of the border. I remember then, many in the Scots system saying that it could not happen here.

Personally, I felt at the time some of our number were a little complacent. A witness who is prepared to fake one piece of evidence would surely be prepared to fabricate a second one. We were, however, right that while corroboration may have been a limited protection it was better than no protection at all. Now, apparently, even that is to go.

The Scottish Government say this is being done to improve the number of cases for rape and sexual assault being brought to court and conviction.

And I do not for one moment underestimate the importance of tackling the problem of the low number of prosecutions and convictions but that is a problem of infinite complexity; the solution to which involves not just the criminal law but education and the need to change many social attitudes.

But to charge ahead with the abolition of corroboration on that basis is overly simplistic.

It demonstrates a lack of understanding of the problem, never mind the dangers of the solution.

And ironically we seem to have got to this position with the Scottish Government openly acknowledging that their policy is deeply flawed but asking the Scottish Parliament to pass it all the same and promising to sort it out later.

If we abolish corroboration and are still not getting convictions in these cases what will be the next safeguard to go?

I firmly believe the abolition of corroboration in our criminal law is a reckless misadventure and it should be abandoned now.

Once it is gone we shall never get it back and we will all be worse off as a result.

On top of this we are seeing an increasing zeal for stop and search that the Scottish Human Rights Commission has said is “largely unregulated and unaccountable”.

In 2010 four times as many stop and searches are taking place in Scotland compared to England and Wales. In the same year 500 children under the age of ten were stopped and searched.

It is essential that we know the true extent of this practice before it threatens the model of policing by consent that we hold so dear in Scotland.


None of these challenges has arisen from being part of a United Kingdom.

All of them are home-grown: all of them originate in Scotland, are the responsibility of our devolved Parliament and the Scottish Government.

Being part of the UK isn’t holding Scots law back – and being part of the United Kingdom does not hold the rest of Scotland back either.

In fact it’s quite the reverse. The UK works well for Scotland.

We are benefitting because we are part of the UK, not despite being part of it.

Every one of our analysis papers has been welcomed by experts in industry, academia and the legal profession.

All the papers published to date have examined in detail topics that matter to us all, from our shared single currency, to our financial services; from defence and security; to borders and immigration; the role of research and science as well as our fiscal performance within the UK and the integration of the UK’s single market.

The latest paper was published by myself and the Energy Secretary just yesterday.


This sets out what it means to be part of a GB-wide energy market.

A market allows us to invest in the North Sea’s future and absorb the impact of both a 40% drop in production this year and the ongoing reduction of those resources that we know is coming the years ahead.

A market that allows us to share the cost of support to our renewables industry, protecting our energy supply of the future and protecting our environment at the same time.

And a market in which we all see benefits in the bills we all pay as energy consumers – whether in the home, our law firms or our courts.

Yes there is much debate around the current costs of energy bills to consumers in Great Britain; but one thing is for certain - as part of the GB market our energy bills are lower than they would be in an independent Scotland.

At the launch of the Energy paper yesterday I used an analogy that I think holds true of so much in this debate.

I see the benefits we gain from being part of the UK as like a light switch. It looks simple and easy to use – we take it for granted that when we flick the switch the lights are there.

But behind it there’s a complicated electrical circuit. We don’t need to understand the ins and outs – but we need to recognise that it’s there.

And we need to recognise that if the complicated circuit wasn’t working behind the scenes the lights wouldn’t come on.

The UK is like this – a complicated circuit where we all put something in, and we all get something out.

Don’t just take my word for it – look at Scotland’s big employers queuing up to make clear that the UK provides strength, stability and jobs for Scotland and that these things must not be put at risk:

In the last few weeks we’ve seen:

  • BP
  • Shell
  • Babcock
  • Standard Life

These businesses are household names. They are not people who have a dog in the fight: they respond not to politics but to the bottom line.

And they know – like I do - that the bottom line is the UK is good for Scotland’s economy and good for Scottish jobs.

So those of us who want Scotland to stay part of the UK need to be less shy when it comes to talking up the benefits that the UK brings us.

There are plenty of people out there who are more than happy to talk the UK down or to blame it for every conceivable ill.

But if we pause to reflect on what we get from being part of the UK family then we should be proud of what we are achieving, not thinking about leaving.

Because the UK works for Scotland.

And I believe the key reason why it works is because across the United Kingdom we are all prepared to work together.

Sharing the benefits in the good times.

And the challenges in the bad times.

Our view of the UK is inclusive and positive. We believe that our family is stronger together.

We have differences and diversity. But we also have a great deal in common.

And it is what we have in common that makes our United Kingdom work.

Our United Kingdom is like the family law firm that works for us all. A family firm that is strong, positive and better together.