Don't do as we do . . .

A couple of weeks ago, if you remember, there was a furore over whether or not the Scottish Government (a) had and (b) should publish, legal advice on Scotland's membership of the EU.

At FMQ's on 10th November, the new Tory leader, Ruth Davidson, said that the First Minister was "feart to publish the legal advice on an independent Scotland joining Europe".

Speaking after FMQs that day (and reported in the Sunday Herald on the 13th November), Iain Gray thundered: "The SNP has effectively taken out a superinjunction against the people of Scotland: not only are we not allowed the facts, we're not even allowed to know whether the advice exists."

And, not to be undone, Willie Rennie of the Lib Dems, demanded that "if the Scottish people are to make any kind of informed decision, we need clarity on the advice the SNP has received. If not, it will be in danger of losing the mandate it gained in May."

The day before, in Westminster, there was similar refrain, with Lib Dem grandee and former leader, Sir Menzies Campbell, pressing Scottish Secretary, Michael Moore: "Do you agree it would help to resolve the uncertainty if the Scottish Government would publish the legal advice it has received on this point so it could contribute properly to the debate?" Mr Moore replied, "that's a very important point".

So with all these demands by the UK government parties (Lib Dem and Tories) and their Calman partners (Labour) for the advice to be released, and being an inquisitive sort of chap, I thought I would see whether or not the UK government (a) had and (b) would publish, its legal advice on Scotland's membership of the EU.

I had a fair inkling that the advice existed, given that it had been 'leaked' a few days previously to one or two of the Scottish papers. And, of course, I had a special interest. Scotland's membership of the EU is the focus of my PhD: seeing the UK government legal advice would be tremendously useful for my studies.

So, earlier this week, provoking great anticipation and excitement, the UK government's reply to my Freedom of Information request popped into my inbox. Would I get reams of detailed and considered legal argument and sombre, thoughtful conclusions? Not a chance.

Here's the reply - with my emphasis added:

"Dear Mr Noon

Thank you for your email of 10 November making a request under the Freedom of Information Act.

You have requested copies of all the legal advice arising from Scottish independence including membership of the European Union.

In accordance with section 42 of the Freedom of Information Act 2000 (information subject to legal professional privilege), I am unable to confirm or deny whether this department holds any information relating to legal advice on this subject. Such advice would be advice in respect of which a claim to legal professional privilege could be maintained in legal proceedings, and is therefore exempt under section 42 of the Act.

Section 42 is not an absolute exemption; it is subject to the public interest test in the Act. There is a strong in-built public interest in withholding information to which legal professional privilege applies. The Courts have recognised that where a request is received under the Act and reliance is placed on section 42, there is a strong inherent public interest in maintaining legal professional privilege. In order to overcome that public interest there would need to be a countervailing public interest factor of at least equal significance that favoured disclosure. This reflects the role of legal professional privilege as a fundamental condition on which the administration of justice as a whole rests and the importance for the Government being able to obtain free and frank legal advice so that decisions taken are properly informed and legally sound.

Whilst we recognise there is a public interest in seeing what legal advice (if any) has been provided to the UK Government on the implications for EU membership if Scotland were to achieve independence, we have concluded that this is outweighed by the strong public interest in the Government being able to seek free and frank legal advice on such matters."

So there we have it.

For the Lib Dems and Tories, a clear case of 'don't do what I do, do what I say'.

As a footnote, I was tempted to ask Mr Rennie whether this response means the UK government is "in danger of losing" its mandate, but then remembered the Tory government (and its Lib Dem supporters) have no mandate in Scotland.

A compelling and simple case

I've had a few people ask me about the legal basis for holding a referendum on independence.

With my 'PhD student' hat on I'll say that this is something I am currently looking at, and will report back with the results of my own analysis of the legal position at some stage.

However, with my 'political adviser' hat on, I'll set out briefly some of the existing legal and political commentary on the ability of the Scottish Parliament to test the public's opinion on independence.

At its most basic, the legality of a referendum will be determined by its purpose. The argument here is a simple one. First, a referendum will only seek to find out people's views on whether or not they want Scotland to become independent. And second, and linked to this, it will not seek to change any reserved law. That will remain the responsibility of the UK Parliament.

So here are some previous legal views on the referendum:

The leading textbook on Scottish Constitutional law, (Scotland's Constitution: Law and Practice, Himsworth and O'Neill, 2009) discussing legislative competence, concludes:

“A recurring hypothetical example with a high political profile is that of a Bill to authorise the holding of a referendum on independence for Scotland.  Because its purpose could be interpreted as the testing of opinion rather than the amendment of the constitution, such a Bill would almost certainly be within the Parliament's powers"

Stephen Tierney, Professor of Constitutional Theory, Edinburgh Law School, Scotsman, 7 June 2011:

"The Scottish Parliament has authority to stage a referendum. The Union is a reserved matter under the Scotland Act; the Scottish Parliament certainly cannot unilaterally authorise secession.  But a referendum question, carefully framed, asking the Scottish people if they would like the Scottish Government to enter into negotiations with the UK government, would seem clearly to be within the Scottish Parliament's competence."

Colin Munro, Professor of Constitutional Law, Edinburgh Law School, Scotsman, 11 March 1998:

“There is nothing to stop the Parliament arranging to hold a referendum, because that would not involve a change in the law”

Mark Walters, Associate Prof. of Law, Queen’s University, Ontario, Modern Law Review 62 1999:

“The Scotland Act 1998 confers broad legislative powers which are (apparently) to be exercised on behalf of the Scottish electorate; hence, a consultative referendum – even on secession – would not conflict with the policy of the Act so long as its purpose is to assist the Scottish Parliament in determining the democratic will of the electorate.”

And this is what the politicians have been saying:

The Prime Minister, David Cameron, PA Newswire, 8 May 2011:

"Prime Minister David Cameron told Mr Salmond he will not stand in the way of the referendum, and said he will reflect on Mr Salmond's requests for devolution of borrowing powers, corporation tax and the Crown Estate Commission in the meantime."

Scottish Secretary, Michael Moore, BBC website, 8 May 2011

"I firmly believe the Scottish Parliament, if it so decides, can proceed with a referendum," Mr Moore said, adding: "There will be the normal electoral rules that have to be followed and it will have to be discussed carefully with the relevant authorities."

The Scottish secretary added: "We could, I suppose, try to make a constitutional issue about where the powers lie or don't, but I don't think that would be a sensible use of anybody’s time.”

Chancellor of the Exchequer, George Osborne, Scotsman 12th November 2011:

“The ball is in Alex Salmond’s court. He is the one who has advocated Scotland becoming independent, so it’s really for him to suggest how he will hold the referendum and when he will hold it.”

The argument that it is within the competence of the Scottish Parliament to hold a consultative referendum (to repeat, something that in itself doesn't change any reserved law) was, of course, put forward by the late Professor Neil MacCormick in his article "Is there a Constitutional Path to Scottish Independence, (2000) 53 Parliamentary Affairs 721. Professor Neil summed it up well, making the point that this reading of the law is "as compelling as it is simple". I couldn't agree more.

Euro membership

There has been much discussion among politicians and the press in recent days, including at FMQs today, about whether or not an independent Scotland would be required to adopt the euro.

As someone newly qualified in EU law, I thought I would take a look, not at the political arguments, but at the black letter law - what the Treaties actually say.

So lets explore the 'worst case scenario' put forward by Labour and Tory politicians: Scotland as an accession state.

This is the legal position on euro membership:

The most recent accession treaty (for countries such as the Czech Republic, Hungary, Slovenia and Poland) contains the following provision:

"Each of the new Member States shall participate in Economic and Monetary Union from the date of accession as a Member State with a derogation within the meaning of Article 122 of the EC Treaty"

Article 122 of the EC Treaty has now been replaced by Articles 139 and 140 of the Treaty on the Functioning of the European Union (TFEU). If you stop at this point, the argument seems won - all new members "shall participate" in the single currency. However, there is another step. We need, also, to look at what Articles 139 and 140 TFEU actually say.

These articles apply to all Member States without a euro opt out, whether old or new, whether accession or not. Article 139 TFEU sets out that "Member States with a derogation" do not participate in the single currency or monetary union. Article 140 TFEU then makes clear that euro membership is not automatic. In order to join the euro, a Member State has to satisfy certain criteria, including currency convergence as part of the European Exchange Rate Mechanism (ERM II).

So what are the rules for participation in ERM II? These are set out in the 16 June 1997 Resolution of the European Council establishing the Exchange Rate Mechanism and the 16th March 2006 agreement between the European Central Bank and the national central banks of the Member States outside the euro area. These make clear "participation in ERM II is voluntary for the non-euro area Member States". 

So, in summary, the Treaties make clear that a Member State can't join the euro without demonstrating currency convergence as part of ERM II "for at least two years" and because Scotland (or any other Member State, old or new) can choose whether or not to join ERM II, we can't be forced to join the euro. There is a point of decision - whether or not to join the Exchange Rate Mechanism - which is ours to take, and if we don't join ERM II, we won't be joining the euro.

As a final thought, I started work for the SNP in the House of Commons and have huge respect for the House of Commons library and its highly effective staff. It is therefore very disappointing that they should put out a report on euro membership for an independent Scotland without referring to what the Treaties and other provisions of EU law actually say. I hope that mistake is now remedied.