Devil in detail as independence debate gathers pace

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Whichever side of the argument you are on, it is surely welcome in the independence debate that attention is beginning to focus sharply on what may happen after any yes vote in next year’s referendum.

Alongside contributions about currency, monetary policy and pensions, Westminster’s Foreign Affairs Committee last week published an authoritative report highlighting difficulties for Scotland and the rest of the UK in the arenas of foreign and security policy.

But what of the law, and of our institutions of government? What issues would they face in the event of independence – and would they cope?

Gradually, we are learning more about what independence would mean. Scotland would be a new state in international law, and would immediately have to start the process of negotiating its way into the world of international relations. A huge, complex series of parallel negotiations would have to be set up: with the rest of the UK, the EU, the UN, the Council of Europe, the IMF, the World Trade Organization, presumably with NATO, and a host of other international organisations that would have a view on Scotland’s terms of membership.

Who, exactly, would undertake these negotiations? One can only assume the answer is civil servants, advised by government lawyers and working under ministerial direction. Does Scotland have enough trained civil servants and lawyers to ensure the country can secure the best possible outcomes?

The negotiations will be tough. As we’ve seen, if Scotland wants to keep the pound UK ministers will seek to extract robust terms before agreeing to any currency union. And if Scotland wishes to enter the EU, carrying with it some UK opt-outs (from the euro, or from the Schengen free-movement area, for example), we cannot expect negotiations in Brussels to be plain sailing either.

Scots would require those conducting the negotiations to be as accountable and transparent as possible: having voted for independence the public could hardly be expected not to have a keen interest in discussing the terms on which it was to be delivered.

Yet how would this work in practice? What role would the Scottish Parliament play? How would disputes be resolved? Would the courts have any role, or would we be in an arena of pure politics, unsupervised by any guardian of the rule of law?

Last week in these pages Neil Davidson drew attention to the limitations of the Scottish Parliament in ensuring compliance of its legislation with Convention rights. If Holyrood struggles now, imagine the magnitude of what it would face as Independence Day approached. Those in favour of a yes vote are sometimes prone to caricature the arguments of their opponents as little more than “too wee” and “too poor”. Both expressions are widely used as Twitter hashtags. This has always struck me as unfair.

By and large, unionists have been careful to say it is no part of their argument to suggest Scotland could not go it alone, if that is what we choose come September 20 14.

But should we not face up to the fact that it is indeed difficult to guarantee that, in the event of a yes vote, our lawyers and public servants would have the depth of numbers, resources, experience and expertise needed to ensure that the best possible deals are struck in the national interest? The folk on the other side of the many tables will not be putting Scotland’s interests first.

There are currently in the region of 180 lawyers working for the Scottish Government. Naturally, they work in the areas of law that fall within the devolved competence: health, education, agriculture etc. Scotland has no established diplomatic service to speak of (four staff in Washington DC, two in Toronto, two in Beijing and a dozen in Brussels). In contrast, the UK’s Foreign Office employs 14,000 people.

Should we not be thinking much more carefully about the institutional capacity we would need in order to make independence work?

• Professor Adam Tomkins is the John Millar Chair of Public Law at the University of Glasgow

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