Public Law

The UK and Scottish Parliaments have been busy on Scottish independence matters recently.

The House of Commons Scottish Affairs Committee has today published a report on an independent Scotland’s position in relation to the EU, which concludes that Scotland would be an EU member but that the Scottish Government’s proposed 18-month timetable for securing membership would mean Scotland losing “all or most” of the UK’s opt-outs on matters such as the Shengen free movement area, the Euro and elements of VAT, as well as Scotland’s ‘share’ of the UK’s budget rebate. They also challenged the lawfulness of the Scottish Government’s plan to continue to charge rUK students attending Scottish universities. Coverage of today’s report is available from the BBC, Herald (£, if you’re a regular visitor) and Guardian, among others. You can find some of our previous posts on these issues here, here, here and here.

It is perhaps not terribly surprising that this report reached slightly different conclusions to another report on EU membership, published on Friday by the Scottish Parliament’s European & External Relations Committee. Coverage of that report is here, and if you’re really keen you can find the extremely detailed evidence provided to the Committee (some of it from some fairly eminent figures) here. The Telegraph reported some significant friction between the Committee members on what the report should contain (see the divisions from the bottom of page 82 of the report to see what the report was about). No such trouble for the Commons’ Scottish Affairs Committee, of course, which the SNP are boycotting over its approach to the independence debate.

Meanwhile, the House of Lords’ Constitution Committee published a report earlier this month on the constitutional implications of Scottish independence, and being total nerds for this sort of thing we hope you’ll forgive us for focusing a little more on that! The report covered some key issues that would have to be dealt with to make independence a reality in the event of a ‘yes’ vote. See here and here for some of the media coverage.

The Scottish Government’s proposed transition timetable raised its head again, with their Lordships expressing the view that the remaining UK (“rUK”) would not be bound by the aspiration for a negotiated independence settlement to be in place by March 2016, which they thought may in any event not be achievable. The scale of the task involved, the UK general election scheduled for May 2015, and the need to protect the interests of those in rUK, were all cited as factors with the potential to throw the timescale off course.

The report also discussed the position of Scottish MPs in respect of any negotiations on independence. It concluded that, since the primary duty of such MPs serving as UK Government Ministers would be to their constituents in Scotland, they should not have a say in any negotiations with the Scottish Government or play any part in scrutinising those negotiations in the House of Commons. While that might be relatively uncontroversial, given the potential for such MPs to have a conflict of interest, the report also recognises that until independence took effect Scottish voters would have to continue to be represented at Westminster. Any suggestion that such representation would cease at the moment a ‘yes’ vote was announced could not be right in constitutional terms, as it would leave Scotland in ‘limbo’ while still a member of the UK.

There was also discussion of a Supreme Court for Scotland, which we have written about here and here. The Scottish Government envisaged in its ‘White Paper’ that the Inner House of the Court of Session and the High Court of Justiciary would operate as the Supreme Court for civil and criminal matters respectively in an independent Scotland. There has been much debate – especially among lawyers – about appropriate models for a Supreme Court, but the details of what exactly the Scottish Government has in mind remain extremely elusive.

The Lords’ report recommended that Scottish judges would no longer be appointed to the UK Supreme Court if Scotland were to become independent. However, serving Scottish judges in the UK Supreme Court would continue to sit until they retire (unless, presumably, they were ‘poached’ to return to the Scottish courts). This particular recommendation should be uncontroversial, as judges are appointed for their expertise and experience rather than to ‘represent’ the interests of any one of the jurisdictions from which the Supreme Court hears cases.


Charles Livingstone

Partner at Brodies LLP
Charles works with a broad range of commercial, public sector, charitable and individual clients, advising them on public law issues including judicial review, human rights, information law and the powers and duties of local and other public authorities. He is named by Chambers & Partners in both Competition Law and Administrative & Public Law.
Charles Livingstone

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