Public Law

You will probably have heard and read our thoughts on what would likely follow – legally and constitutionally – in the event of a Yes vote in the now imminent independence referendum (and if you haven’t you can see here, here, herehere, here and here).oof of building with Saltire and Union Jack flag

Much of that earlier analysis was based at least in part on the proposals of the Scottish Government contained in last year’s White Paper.  Since then we’ve also seen publication of the Scottish Government’s Draft Scottish Independence Bill which put (some) more flesh on the bones of the earlier proposals. The Bill is out for consultation until 20 October 2014 – a period which will no doubt be cut short if there is a No vote on the 18th.

As expected, the draft Bill contains several provisions intended to provide a ‘constitutional platform’ for Scotland to become independent, and others designed to create an interim constitution for that new state – to be used until a written constitution was drafted and approved. Many of the provisions are declaratory, even exhortatory: “In Scotland the people are sovereign” (section 2) and “The principle of the rule of law continues to apply in Scotland” (s15(1)) while others are much more mundane (but operationally or legally important). We noted some of the Bill’s more high-level provisions here.

Perhaps as significant as what is in the draft Bill is what is not. Much of the practical details of independence would be the subject of detailed negotiation rather than legislative provision. Not least of those details would be the date on which Scotland would become an independent state following a Yes vote. Although March 2016 is the Scottish Government’s ‘target’, no date is specified in the draft Bill. Rather the Bill would, if enacted, empower the Scottish Parliament to choose that date in due course – giving in theory very substantial wiggle room in choosing ‘Independence Day’.

It is in fact likely that the Bill would itself be one of the first items on the agenda for any post-Yes negotiations, as the Scottish Parliament could not in fact lawfully legislate for independence unless the power to do so was first conferred on it (because the Scotland Act 1998’s reservation to the UK Parliament of matters relating to the union would remain in place, unless and until changed). The rest of the UK would have a significant interest in how the process of separating Scotland from the rest of the UK was conducted (as discussed from paragraph 4 of this post), and agreement may therefore be required on both the substance and timings of several aspects of the transition process. It is therefore possible that the draft Independence Bill might have to be revised to reflect whatever agreement was reached.

For more analysis of the constitutional issues arising in relation to the independence referendum, please visit our Scotland’s Constitutional Future webpage where we have collated links to earlier blog posts and articles on those issues. The news section has been updated so our constitutional pieces appear at the top. We will be continuing to update it to focus on other subject areas over the course of this week and next, and will be posting updates on the blog to highlight when a new area is featured. To receive alerts when we add a new post, please do subscribe using the button to the right.

Christine O'Neill

Partner & Chairman at Brodies LLP
Christine is Chairman of Brodies LLP and leads our Public Law Litigation and Parliamentary team. She has considerable experience of parliamentary and public law work and has a special interest in administrative law, devolution and human rights. Christine has advised variety of clients on legislative procedure in the Scottish Parliament, particularly in relation to alcohol and tobacco regulation.
Christine O'Neill

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