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He Who Pays the Piper: Shifting Scottish Legal Landscapes

Published online by Cambridge University Press:  17 September 2013

Candace Guite
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Abstract

If Scotland votes ‘Yes’ to the question ‘Should Scotland be an independent country?’ how will its relationship change with the remainder of the UK? A ‘yes’ vote will have huge financial, political and legal implications. This article, written by Candace Guite, considers the current role of the UK Supreme Court in Scotland, the recent conflict (to which the title alludes) and it reflects on Scotland's potential international status. The UK Government has argued that it would be regarded as the continuator state and an independent Scotland would be a successor state, and so, in the event of a ‘yes’ vote Scotland would have to re-apply for entry to the European Union and the United Nations. However, there are arguments to support the alternative option, that Scotland could be regarded as a co-equal successor state with England, and thus would retain EU and UN membership.

Keywords

legal systemsgovernmentindependenceScotland
Type
Legal Information and Aspects of Devolution
Information
Legal Information Management , Volume 13 , Issue 3 , September 2013 , pp. 139 - 147
Copyright
Copyright © The Author(s) 2013. Published by British and Irish Association of Law Librarians 

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References

Footnotes

1 Megaughin, E. and Jeffery, C. (2009) Introduction: the first decade in perspective, The Scottish Parliament 1999–2009: the first decade, edited by Jeffery, Charlie and Mitchell, James, Edinburgh, Luath Press in association with Hansard Society Scotland, p. 9Google Scholar.

2 Steel, D. (2009) A dozen differences in devolution, The Scottish Parliament 1999–2009: the first decade, edited by Jeffery, Charlie and Mitchell, James, Edinburgh, Luath Press in association with Hansard Society Scotland, 15–19Google Scholar.

3 Great Britain. Home Office (1997) Rights brought home: the Human Rights Bill. Cm. 3782.

4 Great Britain. Office of the Advocate General for Scotland (2010) Expert Group (Chairman, David Edward) Section 57(2) and Schedule 6 of the Scotland Act 1998 and the Role of the Lord Advocate: Report of the expert group appointed by the Advocate General for Scotland 1–27, 19 [Online]. Available at: https://www.gov.uk/government/consultations/devolution-acts-and-issues-of-the-lord-advocate.

5 Ibid. 15.

6 Rhodes, M. (2011) Freedom Fighter. Holyrood 258 (27 June 2011), 14–17, 17.Google Scholar

7 Scottish Government (2013) Scotland's future: from the referendum to independence and a written constitution Section 2.14 [Online] Available at: http://www.scotland.gov.uk/Publications/2013/02/8079/0.

8 Reid, R. Supreme Court Holyrood 257 51–53, 52.Google Scholar

9 Killen, F.ECHR Incorporation into domestic law: the Human Rights Act 1998 and the Scotland Act 1998 Scottish Parliament (Information Centre) Research Paper 01/03 15 January 2001 22.Google Scholar

10 Kelly, T. (2011) Expert Group: devolution jurisdiction and the Supreme Court Scots Law Times 159–163, 162.

11 Reid, R. Supreme Court Holyrood 257 51–53, 53.Google Scholar

12 Graff, V. (2013) The Murder Trial Radio Times 6–12 July 2013 26–27.

13 The Scotsman, 6 February 2011. The comments related to Scotland's £500,000 annual share of the Supreme Court's running costs “I am not paying money that would come out of the police budget, or prison budget or community payback budget because they are routinely taking cases that we as a country do not think should be going there ‘He who pays the piper, as they say, calls the tune”.

14 Rhodes, M. (2011) The Eck's factor. Holyrood 257 (13 June 2011a), 16–22, 20.Google Scholar

15 Waddell, K. and Henry, G. (2011) [Letter of support for Tony Kelly following a personalized attack by the First Minister], Herald 16th June 2011, p. 16.

16 Great Britain. Home Office (1997) Rights brought home: the Human Rights Bill Cm. 3782 1.18

17 Hiebert, J. (2012) Governing under the Human Rights Act: the limitations of wishful thinking. Public Law, 2012 (January) 39–40Google Scholar.

18 Great Britain (Commission on Scottish Devolution), Serving Scotland Better: Scotland and the United Kingdom in the 21 stCentury. Edinburgh, Commission on Scottish Devolution, 2009.

19 Scottish Government (2011) Review Group (Chair: John McCluskey) Examination of the relationship between the High Court of Justiciary and the Supreme Court in criminal cases. Edinburgh, 2011.

20 Rhodes, M. (2011) The Eck's factor. Holyrood 257 (13 June 2011b), 16–22, 20Google Scholar.

21 Scottish Government (2010) Walker Report Final appellate jurisdiction in the Scottish legal system Edinburgh, Legal System Division, 2010 [Online] Available at: http://www.scotland.gov.uk/Publications/2010/01/19154813/0.

22 Ibid. 66.

23 Scottish Government (2013) Scotland's future: from the referendum to independence and a written constitution 1–16 [Online] Available at: http://www.scotland.gov.uk/Publications/2013/02/8079/0.

24 Scottish Law Commission, Annual Report 2011, No. 225 Edinburgh, The Stationery Office, 2012, 1–40, 8.

25 Ibid. 7.

26 Scottish Law Commission (2011) Review of contract law: Discussion paper on interpretation of contract (Discussion Paper 147) Edinburgh, The Stationery Office.

27 Scottish Government (2007) Choosing Scotland's future: A national conversation: Independence and responsibility in the modern world Section 2 (17) [Online]. Available at: http://www.scotland.gov.uk/Publications/2007/08/13103747/0.

28 Peterkin, T. Shetland and Orkney bid for home rule. Scotland on Sunday, 17 March 2013, 1, 4.

29 Shetland Islands Council (Chief Executive), Constitutional Reform, Report No. CE-01-F, 24 April 2013.

30 UK Government (Ministry of Justice), Fact Sheet on the UK's relationship with the Crown Dependencies, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/185870/crown-dependencies.pdf.

31 Scottish Government (2013) Scotland's future: from the referendum to independence and a written constitution 1–16 2 [Online] Available at: http://www.scotland.gov.uk/Publications/2013/02/8079/0.

32 Crawford, J. and Boyle, A. (2013) ‘Annex A Opinion: Referendum on the Independence of Scotland-International Law Aspects’ in Scotland Analysis: Devolution and the implications of Scottish Independence 67–112 (Cm 8554:2013) [Online] Available at: https://www.gov.uk/government/publications/scotland-analysis-devolution-and-the-implications-of-scottish-independence.

33 ibid para. 40–46.

34 http://www.scotland.gov.uk/About/Government/concordats/Referendum-on-independence.

35 Crawford, J. and Boyle, A. (2013) ‘Annex A Opinion: Referendum on the Independence of Scotland-International Law Aspects’ in Scotland Analysis: Devolution and the implications of Scottish Independence 67–112 para 37 (Cm 8554:2013) [Online] Available at: https://www.gov.uk/government/publications/scotland-analysis-devolution-and-the-implications-of-scottish-independence.

36 Scheffer, D. (2013) International political and legal implications of Scottish independence Working Papers Series 2013:01 1–21 (Adam Smith Research Foundation, University of Glasgow).

37 Ibid. 9.

38 Crawford, J. and Boyle, A. (2013) ‘Annex A Opinion: Referendum on the Independence of Scotland-International Law Aspects’ in Scotland Analysis: Devolution and the implications of Scottish Independence 67–112 para 146 (Cm 8554:2013) [Online] Available at: https://www.gov.uk/government/publications/scotland-analysis-devolution-and-the-implications-of-scottish-independence.

39 Ibid para. 171.

40 This is not to ignore the effect of the digital divide in Scotland. Much of the official documentation, the campaign literature, and other material is available in print. The images in this article are courtesy of the Scottish Political Archive at the University of Stirling www.scottishpoliticalarchive.org.uk and my thanks are due to Sarah Bromage. The Scottish Political Archive has a rich collection of print, visual material, and oral recordings, and is actively collecting material based around the forthcoming referendum.