Now that the Scottish government has published its independence White Paper, Scotland’s Future, people are beginning to focus not just on the wide range of issues that need to be negotiated, but the relatively short timescale in which to do so. The timetable set out by the Scottish government is as follows:
September 2014: Referendum
May 2015: UK General Election
March 2016: Independence for Scotland
May 2016: Elections to Scottish Parliament.
When asked by the media to comment, I said last year that the timetable was tight but realistic. Not everything would be settled in 18 months, but the big issues could be, and a lot of the lesser matters left to be sorted out later. The Czech-Slovak divorce took just six months after the decision to separate, and was given effect through 31 Treaties and some 12,000 legal agreements, many negotiated subsequently (see chapter 4 of our book Scottish Independence: A Practical Guide, by Jo Murkens, Peter Jones and Michael Keating). So 18 months seemed not unreasonable, if both parties negotiated in good faith and with a sense of urgency. To allow the negotiations to drag on for years would be debilitating for both countries, creating uncertainty for business, the markets and the economy, as well as for citizens and for our international partners.
Alex Salmond mentioned my support for the Scottish government’s timetable at the launch of their White Paper. But I have since had to cause to recant. What I had overlooked was the time required for legislation at Westminster and the Scottish Parliament to give effect to independence. The negotiations on all major matters will need to be concluded before the legislation can be introduced. Westminster will not tolerate a framework bill allowing the two governments to fill in the details. Nor will Westminster tolerate an urgent bill being rushed through under a guillotine. As a first class constitutional measure, it would have to take its committee stage on the floor of the House. Even if the government did manage to impose a guillotine in the Commons, it has no control over the timetable in the Lords, who will want to allow plenty of time for a bill of such importance.
How long might the legislation take? The closest analogy is perhaps the Scotland Act 1998, whose passage took 11 months. It did so under favourable circumstances, in the first session of a new government elected with a landslide majority of 179. The difficulty for the independence negotiations, as Nick Barber has pointed out [http://ukconstitutionallaw.org/2014/01/14/nick-barber-after-the-vote/], is that there may be a change of government in the UK at the half way mark, in May 2015. A new government may not feel ready to introduce legislation immediately to give effect to negotiations conducted by its predecessor. It may want to re-negotiate certain aspects. The earliest possible date for introducing a Scotland Independence Bill is likely to be autumn 2015. Given the opposition there is likely to be in both Houses at Westminster to Scottish independence, which will be expressed as hostility to the terms of independence, it will not have an easy passage. It would be a miracle if the bill was passed in six months, in time for Salmond’s target date of March 2016.