Wednesday 17 September 2014

Scotland ~ the eve of the referendum

18th September 2014 - Referendum Day in Scotland on the question of independence from the remainder of what is now the United Kingdom of Great Britain and Northern Ireland.  "The Union" of the separate Crowns of Scotland and England came on 24th March 1603 when King James VI of Scotland also became James I of England.  However, political union of the two Kingdoms did not arrive until 1st May 1707 with the enactment, by what were then separate Parliaments, of the Union with Scotland Act 1706 and the Union with England Act 1707.   The Acts gave legislative force to the Treaty of Union agreed in July 1706.

'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 ....

Treaty of Union 1706


  1. "A NO vote will be a rejection of independence but politicians are on record as promising "Devo-Max""

    A plain untruth, they are on record as offering no such thing. They are on record as offering a slightly tinkered version of the existing settlement (details of the tinkering varying by party). Whether any such tinkering would ever actually be forthcoming is anybody's guess.

    Devo-Max is well defined, and amounts to complete control of Scottish revenues and spending lying in Scotland with only defence and foreign affairs reserved to Westminster. Nothing remotely approaching this has been offered in the event of a No vote by any of the Westminster parties, despite the best efforts of the unionist media to convince the electorate otherwise.

    1. I agree that "devo-max" properly so called would be what you say but as the vote has approached and as politicians have knee-jerked in response to the various opinion polls, the precise nature of what might follow a NO vote has changed and remains uncertain. The post above states, I believe accurately, that the precise nature of what extra powers will be devolved will itself be matter for negotiation between the UK government and the Scottish government. I have just added a further link to a view on the latest so-called "devo-max" pledge.

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    3. As far back as early 2012, the precise nature of devolution max was unclear - see BBC 21st February 2012