Public Law

Today’s dose of ‘referendum news’ has focused on the Law Society of Scotland’s paper on “Scotland’s Constitutional Future”. The Society takes no formal view on the issue of independence, and so the paper is intended to highlight issues that the Society believes need further clarification prior to the referendum.

As a member of the Society’s Constitutional Law Sub-Committee I should limit the extent of my own commentary, but I can certainly link to the paper itself, and the coverage by the BBC, Herald and Scotsman. The Scotsman’s leader commentary is here.

Judging by the headlines, the media are most interested in the paper’s suggestion that it may be appropriate for the Scottish and UK Governments to disclose their legal advice on, in particular, EU membership. We have commented previously on the extent to which that choice could potentially be made for them under Freedom of Information legislation. The UK Government has of course already published an opinion it received on an independent Scotland’s likely status in international law.

Other issues raised by the paper include a key question we have asked previously: in the event of a ‘Yes’ vote there would then be negotiations on an independent Scotland’s EU membership – if those could not be concluded by the Scottish Government’s preferred ‘independence day’ (i.e. March 2016), would independence be delayed to allow the negotiations to run their course? Alternatively, would Scotland become independent even if it meant an initial interruption in EU membership (or some intermediate quasi-membership status) pending the conclusion of negotiations?

The paper also identifies a number of questions about the potential structure of the legislature and courts in an independent Scotland, including a new Supreme Court (on which we have also commented previously).

We now wait (with breath only partly bated) to see whether any of the trickier questions raised in the paper generate any change in either Government’s positions.

Charles Livingstone
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