I gave evidence last Thursday to the Scottish Parliament’s Referendum (Scotland) Bill Committee, which is considering the section 30 order that forms part of the ‘Edinburgh Agreement’ between the UK and Scottish Governments as a preliminary to the Referendum Bill proper. (My earlier post on that is HERE.) I appeared with Professor Aileen McHarg from Strathclyde University; Michael Moore, the Secretary of State, followed us.
My appearance, and remarks about the role of the Electoral Commission, led to coverage in the Herald on Thursday here, and in the Scotsman, leading page 1 on Friday, here. The other slightly surprising issues to come up in questioning were the role of the Civil Service and the extent to which the Edinburgh Agreement authorised such steps as the taking of legal advice on EU membership. (I said it was hard to see how it did, as legally speaking nothing had changed with the Agreement – there would only be a change when the section 30 order had actually been made, which would expand the scope of devolved legislative powers.) The other issue that cropped up was the legal status of the Edinburgh Agreement, on which it’s worth also reading Christine Bell’s position the Scottish Constitutional Futures Forum blog here. It seems to me that the Agreement is a fairly typical intergovernmental agreement, declaring a lack of intention to bind the parties in contract though creating some reasonable expectations which are enforceable in public law, though there is a further question about what exactly these might be. I’m unconvinced by parallels with the 1998 Belfast/Good Friday Agreement (available here), which was an agreement between (unspecified) parties but which included an annexed and binding agreement between the UK and the Republic of Ireland, two sovereign states, so to that extent it was an international treaty. As the Multi Party Agreement and the British-Irish Agreement each referred to each other, and the Multi Party Agreement referred to what became the Northern Ireland Act 1998, there is a complex recursive effect between the Agreement and the Northern Ireland Act 1998 as the Act depends on the Agreement, but the Agreement also depends on the Act. That’s clearly not the case with the Edinburgh Agreement, where there is a simple intergovernmental agreement with a draft legislative instrument annexed.