Legal argument on a new constitution

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WE are a group of 11 lawyers who support a Yes vote on 18 September. We include academics, advocates, solicitor-advocates, solicitors, and others engaged in the practice of law. We believe that independence will lay down the foundations for a fairer, equal and more democratic society in which the fundamental rights of all citizens are enshrined in a written constitution and protected by a constitutional court as befits a modern democracy.

Following upon a Yes vote, Scotland will have an enviable opportunity to draft a constitution which articulates the shared aspirations and values of the people who live in Scotland and protects fundamental rights, the separation of powers and the rule of law.

Scotland has its own legal system and its own courts and is thus well-placed to adapt to independence.

Furthermore, it is our ­belief that an independent Scotland would preserve the right of access to justice of all people who live in this ­country.

As lawyers in the real world, we believe that an independent Scotland would remain in the European Union so long as it wished to; it could not and would not be expelled against its will. By contrast, in the event of a No vote, it is a very real possibility that anti-European feeling in other parts of the United Kingdom may force us out of the EU against our will.

Both the UK and the Scottish governments have affirmed that Scotland can exercise its right to self-determination and we see no fundamental legal obstacles to Scotland forming a democratic independent state internationally accepted as such.

Such a state would have the same power over its land and seas, and to decide its laws and policies in the interests of its people as determined by its people, as other states in the EU. It would, we believe, be in the interests of the people of Scotland to choose such a future.

While we have a range of different views on policy matters, we are united in believing that it is in the interests of Scotland and its people that a Yes vote be achieved on 18 September and that there is then speedy and amicable progress towards independence.

Zenon Bankowski

Professor Emeritus of Legal Theory

University of Edinburgh

Christine Bell

Professor of Constitutional Law

University of Edinburgh

Ian Hamilton QC

Graeme Laurie

Professor of Medical
Jurisprudence

University of Edinburgh

Aileen McHarg

Professor of Public Law, University of Strathclyde

James McManus

Rtd Professor of Criminal Justice, Glasgow
Caledonian University

Donald Nicolson OBE

Professor of Law, University of Strathclyde

Aamer Anwar

Solicitor, Glasgow

Malcolm Combe

Lecturer in law, University of Aberdeen

William Henderson

Lecturer in law, Glasgow Caledonian University

Paul Maharg

Professor of Law

Australian National
University

Dr Nick McKerrell

Lecturer in Law, Glasgow Caledonian University

And 99 other members of the legal profession

To what extent should we give credence to the views of writers such as Lesley Riddoch, Pat Kane and Joyce McMillan that the independence campaign is achieving notable success in arousing vital interest in the previously politically unmotivated at grassroots level?

While this popular interest may be welcome it does not necessarily endorse the campaign as such. A more realistic sign of what the style of government to which the Yes campaign will lead is given by John McTernan who has written of the SNP’s “bogus constitution” and examined its actual track record.

The latter is demonstrated by legislation such as the Children and Young People Bill which seeks to establish for every child and associated adult in Scotland a universal surveillance system.

This massive over-reaching of state power into family affairs is not only an intrusion into responsible parenting but actually distracts from targeting of children in need of protection from irresponsible parenthood. It is a sign of the kind of brashly radical assertive in-your-face government that a newly independent parliament would see as its raison d’etre.

Such legislation cries out for correction by the deliberations of a second chamber but, of course, the SNP’s proposed constitution allows only for one chamber.

The point of a second chamber is for delegates free to be politically impartial to temper the indiscretions of the legislature. There being no provision for such restraint is in my view sufficient reason for rejecting the rhetoric of those in favour of a Yes vote.

Alan D Jackson,

Ashwood Mews

Bridge of Don, Aberdeen

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