Public Law

The Scottish Government has today published a document, confirming the SNP’s intention that Scotland would become independent by March 2016 in the event of a Yes vote in the 2014 referendum.

The document ties together a couple of our recent posts (though it would probably be overstating our influence to suggest it does so deliberately), covering both proposals for a written constitution and the timing of post-referendum negotiations.

In relation to the constitution, it doubles-down on treating both the provision of public services and military matters as constitutional issues (see para 1.10 of the document) and has its share of drama, including in a discussion of the unwritten UK constitution the following quote from Abraham Lincoln:

All honor to Jefferson – to the man who, in the concrete pressure of a struggle for national independence by a single people, had the coolness, forecast, and capacity to introduce into a merely revolutionary document, an abstract truth, applicable to all men and all times, and so to embalm it there, that to-day, and in all coming days, it shall be a rebuke and a stumbling-block to the very harbingers of re-appearing tyranny and oppression.

Immediate reactions have focused on the proposed timetable for transitioning to independence (as, in fairness, has our headline!). We knew the Scottish Government were planning that the May 2016 Scottish Parliament elections would be the first elections to a new independent Parliament. Today’s publication reveals that the independence timetable is envisaged to be two months shorter than that, with independence happening in March 2016.

It also explains (at paras 2.3 and 2.4) that the Scottish Government intends to negotiate and confirm the terms of EU membership within that 16-month period (assuming the referendum happens in October 2014). We described an 18-month timetable as “demanding” last year. Needless to say a 16-month timetable would be even more so.

The question therefore arises whether independence would happen in March 2016 even if discussions about EU membership had not yet concluded, in which case Scotland would likely fall outside the EU on “independence day” and then be readmitted only once membership terms had been agreed. Alternatively, would independence be contingent on a prior guarantee of immediate transition to separate EU membership? In that case there may need to be a bit more flexibility on timing, given the risk that membership negotiations could, to quote the Irish European affairs minister, be “a lengthy process”.

Other points worth noting from the document include the discussion in para 2.6 of transition preparations pre-referendum, particularly in light of the competing interpretations given to last week’s Electoral Commission report. While the various parties accepted that the proposed referendum question should change, there was a remarkable degree of disagreement on whether the report approved or criticised the UK Government’s position that it will not ‘pre-negotiate’ the terms of independence (see the comments of Michael Moore and Bruce Crawford respectively). Para 2.6 of this latest document seems a little ambivalent on whether that stance is or is not appropriate, but does seem to implicitly accept that ‘pre-negotiation’ on the substantive issues (rather than on the format of the post-referendum process) is not likely.

We also note that para 2.14 proposes the creation of a new Supreme Court of Scotland, rather than the UK Supreme Court simply losing its Scottish jurisdiction and the Inner House of the Court of Session regaining its role as Scotland’s final court of appeal. Whether the new Supreme Court would be excluded from considering criminal matters, as the Scottish Government has argued should be the case for the UK Supreme Court, is not addressed.

Charles Livingstone

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