Imagine, for a moment, that the campaign for Scottish independence is actually a night in a public house. Picture the scene of a few regulars, who hold court and offer pearls of wisdom to all and sundry on the benefits of Scottish sovereignty. Every so often, others seek to join their group. They are made welcome, but such a newcomer can be in a precarious position. They may try to impress these pub-based sages and over-compensate in the process, or desperately try to catch up on where the conversation has been and (most precariously of all) try to catch-up on the regulars’ “enthusiasm”. I suppose I am such a newcomer, having nailed my Scottish colours to the mast fairly recently, so I will be careful not to try to out-drink those regulars, but I can offer one opening gambit that might impress them. I have a new post over at Academics for Yes, which I quote below. Enjoy.
A new organisation called “Lawyers for Yes” is now active. Its declaration has the support of people from all walks of Scottish legal life: solicitors, advocates, solicitor-advocates, academics and others engaged in the practice of law. I am a signatory, as are 110 others (as at 22 June 2014). The homepage has a number of contributions explaining why some of those signatories believe:
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.
Those are powerful words, which might be expected when you consider Scots solicitors have on occasion been referred to as “writers.” Other than powerful language, one might wonder what a group of lawyers bring to the debate. Two thoughts are offered here.
The first relates to the initial membership of the group. Unsurprisingly, the first thing lawyers might get in a tizzy about is the definition of “lawyers.” A quick glance will reveal that not all signatories are qualified to practise law in Scotland at present. That may be so, but the diversity of contributors can equally be characterised as something to celebrate. From trainee solicitor to eminent Queen’s Counsel, these people have considered the topic and think that independence is a positive step. Lawyers for Yes cannot be criticised for having a view centred on Parliament House or dominated by any particular age and stage of a legal career path. It reflects a broad spectrum of legal society.
A second thought relates to the perspective lawyers can bring to bear. At one level, the formation of Lawyers for Yes is no more or less exciting than the launch of a group of crofters or indeed academics for Yes. At another, it is much more than that, when you consider the nature of some of the purported obstacles to Scottish independence, such as EU membership for an independent Scotland. People might vote No for a whole variety of reasons, but if someone does not vote Yes on the basis of an apparent legal truth the Yes campaign will suffer. This is why Lawyers for Yes has a role, in that it shows a number of legal minds think such legal problems are either: a) not problems at all; or b) perfectly surmountable in the event of a Yes vote.
Rather than consider the ins and outs of the legalities of an issue like EU law here, I am going to become a little theoretical. What is law? One definition might be a system of rules that governs a society at any given time. And what does law do? Law both shapes and reflects the society it relates to. The rules that exist can and do shape behaviour, but when circumstances change and the law no longer reflects that society it can and must change. It is fair to say that a Yes vote would be a huge declaration of intent by Scottish society and any mature legal order ought to be able to react to that. The simple fact that lawyers are comfortable with the idea of independence despite EU concerns or other constitutional niceties is an effective counter-balance to anyone who speaks of apparently certain consequences to the independence vote.
What do Lawyers for Yes not do? There are no substantive proposals about a new Scottish constitutional order, beyond noting that the existing legal system and legal institutions mean Scotland is perfectly capable of adapting to independence. In that regard, maybe it is not a radical intervention, but it certainly adds something to the independence debate.