'That the Two Kingdoms of Scotland and England shall upon the first day of May next ensuing the date hereof and forever after be United into One Kingdom by the Name of Great Britain ...........'
The intention of those who legislated for union was clear. The Union was meant to last forever. The word "forever" would not, of course, be legally binding on the United Kingdom Parliament which may, if it so decides, legislate for the dissolution of the union and for Scottish Independence. Nevertheless, "forever" is a powerful word and everyone entitled to vote would do well to reflect very hard on what the peoples of the United Kingdom have achieved together over the 307 years of the union as well as, what together, they could achieve in the future.
A YES vote will lead to independence. Precisely when this will be achieved is a matter of some debate and, realistically, it may not be achievable until late 2017 even though there will be pressures to achieve independence by 2016. Writing in The Guardian 11th September, Joshua Rozenberg notes:
Nobody suggests that independence could be delivered before the general election in May next year. Salmond's target date is March 2016. Prof Robert Hazell, of the constitution unit at University College London, says a more realistic target would be the autumn of 2017.
However that may be, the 2012 Edinburgh agreement requires the politicians to "work together constructively in the light of the outcome, whatever it is, in the best interests of the people of Scotland and of the rest of the United Kingdom."
There are undoubtedly difficult issues to be resolved in the event of a yes vote. The major issues would appear to be related to European Union membership; currency and defence. Clear answers to any of those crucial matters seem to be missing.
A NO vote will be a rejection of independence but politicians are on record as promising "Devo-Max" so that more legal powers are transferred to the Scottish Parliament. The precise nature of "Devo-Max" will itself be matter for negotiation between the UK government and the Scottish government. This is discussed in The Independent 15th September 2014 - Scottish Independence: What is devo-max? and also see The Guardian view on the devo-max pledge (16th September). Yet again, the Edinburgh agreement commits politicians to work constructively together but devo-max may produce tricky conflicts between what is in the best interests of the people of Scotland and the best interests of the rest of the UK. One certainty is that a NO vote will not simply mean continuation of the status-quo.
Was there another option apart from Yes or No? I believe that there was. Scotland could have become independent but, at the same moment, come into a Federation with the remainder of the UK. Such an option appears to have been rejected by politicians without it being put to the people. A federal solution would have either obviated or minimised problems relating to the EU, currency and defence.
Irrespective of the outcome of the referendum, there will be many political and practical problems to resolved and, of course, some difficult legal questions. These will be followed with interest.
For my part, I hope that the Union remains together. It has been a far-sighted achievement and has achieved much that is of great value in the world. As President Lincoln said in 1858 in his famous "house-divided" speech at Springfield, Illinois -
"I do not expect the Union to be dissolved — I do not expect the house to fall — but I do expect it will cease to be divided."
Law and Lawyers -
Scotland and the Independence Referendum 15th January 2014
Scotland and its currency in the event of independence - 14th February 2014
Scotland - Independence Referendum 24th November 2013
Scotland and the EU - No.1 - Does legal advice exist? 27th October 2012
Scotland and the EU - No.2 - EU membership - 31st October 2012
Scotland - Constitutional Futures Forum - 2nd October 2012
Scotland's future - more consultation - 26th January 2012
Scotland's constitutional future: an influential Scottish voice - 21st January 2012
Scotland - we need to talk - 10th January 2012
Scotland and the EU - a tricky point - 26th October 2011
Addendum 18th September:
The above post was reproduced on Legal Business 18th September 2014.
Further articles of interest may be seen on the UK Constitutional Law Association blog - e.g. Aileen McHarg: The Vow: Vote NO for more Devo and Alan Trench: What follows the referendum ....
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