Scotlands Constitutional Future Legal ramifications of constitutional change Christine ONeill, Partner 4 September 2009 © Brodies LLP 2008

Overview Putting lawyers in their place. Where are we now: the Scotland Act 1998 and constitutional change. Changing the devolution settlement – legal ramifications. Independence – getting there and what comes after?

Where are we now? The Scotland Act 1998 A flexible constitution for Scotland? the Scottish Parliament is governed by what is, in effect, a mini-constitution the Scotland Act was a constitutional statute, it should be read in its own terms as a self-contained, self-standing, self- understood instrument

Where are we now? The Scotland Act 1998 Changing the devolution settlement: Scottish Parliament cannot amend the Scotland Act (except when it can…) Westminster Parliament can amend the Scotland Act at any time without consent (we think…) Alterations can be (and have been) made quickly and relatively easily.

The Devolved/Reserved Boundary Order in Council approved by both Houses of Parliament at Westminster and by Holyrood – access to information 2000, 2002 and 2004 – rail powers 2005 – health and safety

Calman Recommendations Airguns National speed limit Insolvency

Legal ramifications Making the changes – thats the easy bit. Understanding the changes – that could be harder. Why does that matter? Stability Certainty Harmony

Over to the lawyers: Where an Act of the Scottish Parliament could be read as being outside competence it should be read as narrowly as it can be to be within competence. In questions about whether legislation relates to reserved matters the key is the purpose of the provision, having regard (among other things) to its effect in all the circumstances.

Over to the lawyers: F2. Child support The subject-matter of the Child Support Acts 1991 and Exception The subject-matter of sections 1 to 7 of the Family Law (Scotland) Act 1985 (aliment). Interpretation If section 30(2) of the Child Support Act 1991 (collection of payments other than child support maintenance) is not in force on the principal appointed day, it is to be treated for the purposes of this reservation as if it were.

Beyond Devolution Can we have a referendum on independence? What if we do and there is a yes vote?

The Referendum Question The competence of the Scottish Parliament to legislate for a referendum would depend on the precise proposition in the referendum Bill, or any adjustments made to the competence of the Parliament before the Bill is introduced. At present the constitution is reserved, but it is arguable that the scope of this reservation does not include the competence of the Scottish Government to embark on negotiations for independence with the United Kingdom Government. Choosing Scotlands Future

And a yes vote? Legislative action at both Holyrood and Westminster would be required to effect independence for Scotland or to transfer substantive responsibility for reserved matters.

Legal issues Recognition as a state Membership of the EU Membership of other international organisations As between Scotland and remainder of UK – who gets the family silver? but is it all politics?

Scotlands Constitutional Future Legal ramifications of constitutional change Christine ONeill, Partner 4 September 2009 © Brodies LLP 2008