Scottish independence – the next steps

The debate over Scotland’s future has developed with last week’s guide to independence.

The debate over Scotland’s constitutional future has moved on significantly since Christine O’Neill’s piece in The Lawyer last January, which discussed the legality of a Scottish independence referendum. The UK and Scottish governments were then arguing over whether the Scottish Parliament had the power to legislate for a referendum. That dispute was resolved last October by the so-called “Edinburgh Agreement”, which resulted in the UK Parliament conferring the necessary power on the Scottish Parliament.

The first piece of referendum legislation received Royal Assent on 7 August. The Scottish Independence Referendum (Franchise) Act 2013 set the franchise as those entitled to vote in local government and Scottish Parliament elections, plus 16 and 17-year olds.

The only real point of controversy in the act is the bar on prisoner voting. This issue has of course been very high-profile of late, following the European Court of Human Rights’ negative rulings on the blanket ban on prisoner voting in the UK. While those rulings related specifically to parliamentary elections rather than referendums, the Franchise Act is currently being challenged in the Court of Session.  

The main Scottish Independence Referendum Bill was passed by the Scottish Parliament on 13 November and (at the time of writing) awaits Royal Assent. The bill confirms that on 18 September 2014 voters will be asked the question, “Should Scotland be an independent country?”

In terms of the debate itself, on 26 November the Scottish government published its much-heralded ‘Guide to an Independent Scotland’ (previously trailed as a white paper on independence). The 670-page guide contains myriad proposals on the structures and institutions that would have to be established following a ‘yes’ vote, as well as a number of policy proposals the Scottish National Party (SNP) would implement if it were successful in the May 2016 election to the newly independent Scottish Parliament. The Scottish government envisages that that election would be preceded by ‘independence day’ on 24 March 2016.

While there is a difference between the two categories, there are some areas in which the guide (perhaps unavoidably) is not always entirely clear on where the line is. However, it does aim to explain what a ‘yes’ vote next September, followed by an SNP victory in the subsequent election, would mean for Scotland in terms of (among other things) the economy, health, pensions, education, defence, justice, the environment and the media.

Some of the headline proposals falling into the ‘structural’ category include: continuing to use sterling through a formal currency union agreed with the rest of the UK, including retaining the Bank of England as lender of last resort, a proposal about which the UK Government and opposition have both expressed scepticism; establishing a joint system of financial regulation across that ‘sterling zone’; maintaining NATO membership; and negotiating membership of the EU on the same terms as the UK currently has.

Where proposals would depend on agreement with the rest of the UK, other EU member states and/or other international bodies, the Scottish government has set itself the ambitious target of negotiating and implementing the necessary agreements within the 18-month transition period between a ‘yes’ vote in September 2014 and its projected ‘independence day’ in March 2016.

The official referendum campaign is scheduled to begin in June 2014, allowing a final 16 weeks before Scotland’s constitutional future is decided.

Charles Livingstone is an associate and Gemma McKinlay is a solicitor at Brodies