In inviting me to speak this evening, Caroline Docherty,
the Deputy Keeper of the Signet, reminded me that last
year’s speaker, Michael Portillo, made the front page of the
Scotsman the following day … and went on to add, “but that
is by no means a requirement”.

If my memory serves me well, Mr Portillo’s remarks
included eulogies about our First Minister. I’m sure if I
was to follow suit, I would easily get a headline in
tomorrow’s Scotsman. But I’ve never fully subscribed to
the maxim that all publicity is good publicity.

Nevertheless, we can note the increasing media profile of
legally related issues.
Historically, they seemed to focus exclusively on the latest
news from the High Court. But more recently, newspaper
columns have carried reports on extraditions of alleged
terrorists, compensation for delayed appeals, prisoner
voting rights, the role of the Supreme Court in Scottish
human rights cases.

In a similar vein, many lawyers in Scotland and elsewhere
have contributed actively to the debate on the
independence referendum thus far, albeit coming from
different political perspectives. Law academics have never
before featured so regularly on Newsnicht.
Facilitating the debate on Scottish independence, the Law
Society of Scotland last week hosted an over-subscribed
event in the largest Committee room in the Houses of
Parliament. I was pleased to take part and can confirm
that the contributions from the panellists and from the
floor, were robust and covered new as well as old ground.
One contribution, from a Canadian visitor, was, I thought
quite apposite. She said that the question for debate
should be “What is it that Scotland can contribute to the
world that it is at present prevented from contributing?”
I like the way that question is framed.

Those of us who believe in Scotland’s continuing place
within the UK will be arguing that the United Kingdom is
good for Scotland, and that Scotland is good for the United
Kingdom.

We will also be arguing that Scotland makes a greater
contribution in the international sphere as part of the
United Kingdom than it could do if we acted alone.
This evening, I’d like to focus specifically on the
contribution that we as Scots lawyers can make to some of
these most pressing social and political issues facing us at
this time.

We meet tonight on a date – 9 November – that is rich in
historical significance.
On this day in 1989, for example, Berliners were
celebrating – indeed the whole world was celebrating –
the fall of the Berlin Wall. 1970 saw the passing of General
De Gaulle – and ten years earlier in 1960, John F Kennedy
was e. lected President of the USA by the narrowest of margIns.
On a sombre note, 74 years ago tonight, Austria and Nazi
Germany witnessed the horrors of the pogrom against
Jewish people and property on Kristallnacht.

And although there is a profoundly historic link, I suspect
it was only coincidence that on November 9th 1998, the
Human Rights Act gailled Royal Assent. I supported that
Bill as it went through Parliament and, indeed, I had long
campaigned for recognition of the European Convention of
Human Rights in British courts, so it was a momentous
day for me, when the rights, proclaimed in the aftermath
of world war, were brought home. Although, even then, I
couldn’t have anticipated that I’d be the first minister to
experience its effects following the decision on temporary
sheriffs!

The Act hasn’t been universally popular – it was never
designed to keep the Daily Mail happy, and in that it has
probably not disappointed – but of course one of its
significant effects is to defend and protect the rights of
people who are not always popular: the criminal accused,
prisoners, people awaiting repatriation … but it is a truth
seldom acknowledged that popular people are less likely to
have resort to the protection of instruments such as the
European Convention of Human Rights.

But let us remember too, that promotion of the
Convention has also resulted in widespread changes all
across Europe – for example, in some countries, the
decriminalisation of homosexuality, the recognition of the
freedom of religion in former Soviet countries, the
prevention of ill-treatment by the police and the removal
of military judges from civilian courts.

And it’s also worth reminding ourselves that the United
Kingdom was the driving force behind the creation of the
Convention and that it represents, in a short document,
the best traditions of law and the protection given by law
that this country can offer from its long history of
constitutional stability.

Of particular relevance to my theme this evening is that
fact that the origins of the Convention illustrate the role
which lawyers of Scots origin can play on the international
stage, operating within the United Kingdom.

In the immediate aftermath of the second world war,
Winston Churchill, by then out of office, toured Western
Europe at a time when British prestige and influence was
still very much in evidence. It was during this tour that
Churchill began to call for European unity – and in an
impassioned speech in Zurich in September 1946 he said:
“We must build a kind of United States of Europe. In this
way only will hundreds of millions of toilers be able to
regain the simple joys and hopes which make life worth
living. “

Subsequent to that speech a “United Europe Movement”
was formed in the UK, with representatives from all the
major parties at the time. One of its members was a Scot,
David Maxwell Fyfe, an opposition MP and lawyer, who
had gained something of an international reputation for
his cross examination of Nazi war criminals at the
Nuremburg trials – most famously his cross examination
which secured the conviction of Hermann Goering. With a
particular interest in human rights, Maxwell Fyfe attended
a Congress of Europe in the Hague in 1948, and in his
memoirs he records something which illustrates how the
world must have looked to those delegates in the 1940S:
those attending the Congress, senior political figures from
allover Europe, had to obtain their meals by the use of
food tickets rather than currency, although it was by then
three years after the end of hostilities. It was in that
shattered Europe that they took first steps to the creation
of a Council of Europe – and the Statute of the Council of
Europe was agreed in 1949.

In the period between the Congress at The Hague, and the
first meeting of the Assembly of the Council of Europe,
David Maxwell Fyfe was involved in drafting the
Convention, with the assistance of academic lawyers from
Oxford and Cambridge University. That first draft covered
what Maxwell Fyfe described as the “basic decencies of
life” – security for life and limb, freedom from arbitrary
arrest, freedom from slavery and compulsory labour,
freedom of religion, freedom of association, freedom of
marriage, the sanctity of the family, equality before the
law, and freedom from arbitrary deprivation of property.

By August 1950, the Assembly agreed the draft
Convention. The Times reported an important aspect of
the new Convention: that it was not to be a collection of
mere aspirations and platitudes. It was to be matter of
real, enforceable, law. The Times report says:
“The committee’s insistence on the convention was based
on the fact that it stated human rights not as vague
generalities, but in terms that could be enforced by a court
of law.”

That same week, Maxwell Fyfe himself wrote in the
Observer:
“After a second blood-bath they are, on the Continent of
Europe, looking to international organisations by which
states take joint action to buttress things which at the
beginning of this century were taken for granted – the
absence of arbitrary imprisonment, torture and official
murder, the presence of freedom of thought, of religion, of
marriage, and political association. Our lunatic century is
looking for a way of guaranteeing ordinary people a
quz•e t lizfe e , …. “

Therein lies an insight into the mindset of people living at
the halfway mark of the last century, particularly those
active in public and political life, when the Convention on
Human Rights was created. The century so far must have
appeared to be subject to a recurring madness, and those
in a position to influence the future sought for their people
the essential elements of “a quiet life”. And although
Nazism and Fascism had been defeated, at a great cost in
terms of blood and treasure, another form of totalitarian
government held sway across Eastern Europe and
appeared to threaten the rest of the Continent.

The UK subsequently signed the Convention – the first
country to do so. The implications of the Convention were
still being discussed in Cabinet at the beginning of 1951
(we know from the Cabinet papers which are now in the
public domain).

One of the concerns at that time – and one which
resonates today – was the Right to a Fairly Elected
Legislature and, in particular, the basis on which elections
might be conducted. The Cabinet minutes refer to (and I
quote) “ … the possibility that the Article as drafted might
require us to adopt an electoral system of proportional
representation.” Heaven forbid! It seems that the
government of the day, despite its radical credentials,
feared agreeing to one sensible democratic proposal for
fear that it might lead to something even better.

Perhaps there was also an element of xenophobia in their
horror at a proportional representation system of voting,
something which was definitely regarded as foreign at the
time.And yet, we often, in time, come to accept such “foreign”
notions as useful.

One lesson that I take from this is that while lawyers of
Scottish origin have contributed much to the protection of
human rights and the promotion of European union, we
have also learned a great deal in the process. We have
not been isolated. We have chosen instead to play a full
role as part of the United Kingdom, bringing our own
ideas and approaches to the table, and absorbing much
from what others have to offer.

Take referendums as another example of this. You will
gather that I am now about to turn to the large grey
mammal with the long trunk in the room. It is sometimes
said that Winston Churchill said that referendums were
the “device of despots and dictators”. It was in fact his
political opponent Clement Attlee who made the
connection between the referendum and the dictator, with
some justification considering the use of plebiscites in the
recent past. Attlee said:
“I could not consent to the introduction into our national
life of a device so alien to all our traditions as the
referendum. “

“Alien to all our traditions” is quite strong meat, but it was
not an unusual point of view, and perhaps echoes the
words of the constitutional lawyer A V Dicey who once
wrote “The word ‘referendum’ is a foreign expression
derived from Switzerland”.

There is something in Dicey’s tone which suggests that
“foreign” and “Switzerland” are not to be greeted with
approval. But in fact in the course of his long career as a
constitutional theorist, Dicey progressed from advocating
absolute Parliamentary sovereignty to advocacy of
referendums in situations where some fundamental
constitutional change was proposed – in particular he was
concerned, as a Liberal Unionist, that there should be no
changes to the Acts of Union with Ireland.

We have, since 1975 at least, now come to accept
referendums as being part of the process of constitutional
change. We have seen two referendums in Scotland on
devolution – in 1979 and 1997, as well as other UK
referendums, such as the voting system referendum last
year.

I welcome, as a lawyer and as a UK government Law
Officer, the agreement we now have with the Scottish
Government for a section 30 order to ensure a sound legal
basis for the referendum on independence. The last thing
we needed was for proposals to be brought before the
Scottish Parliament and then challenged in court.

What began in January of this year with the publication of
the UK Government’s consultation was in many respects a
discussion about the law: did the Scottish Parliament have
power to legislate for an independence referendum or not?
I know that some have been surprised by how central
legal arguments have been to the debate thus far. Yet I
think this is to be welcomed. We are a country with a
great respect for the Rule of Law. And law and politics are
so often closely intertwined.

This point was made eloquently by the Keeper of the
Signet Lord Mackay of Clashfern in evidence to a
Parliamentary Committee. He was speaking in the context
of another difficult and controversial matter – the prisoner
voting rights issue, but, more specifically, on the extent to
which Parliament and the courts should have regard to the
jurisprudence of the European Court of Human Rights:
‘‘1 would just like to say that our country has
embraced the rule of law for many, many
generations and it still is bound by the rule of law.
Therefore, when we have taken on legal obligations,
as we have under the Convention of Human Rights
and Fundamental Freedoms in Europe, the rule of
law requires us to obey the courts that are set up
under that Convention whose judgments are
binding. I do not myself regard politics and law as,
in any way, in conflict because politics in our
country should be carried on under the rule of law.
Indeed, that is how it happens.”

I think that is as it should be, and I am confident that the
contribution that lawyers made helped us to get to the
point of agreement on the important issue of the legality
of the referendum.

Having dealt with the process, I now look forward to the
debates that we will have on the substance. I think recent
experience shows that legal issues will continue to be
important, and as lawyers we can certainly not switch off
from the debate.

Let me provide two specific examples of what we as
lawyers might contribute, whatever our political
perspective.
Firstly, the devolution settlement continues to be widely
accepted but poorly understood. As lawyers I am sure we
recognise that independence is not simply an extension of
devolution. Instead, it is a fundamentally different legal
construct. It concerns me that this is not always properly
understood.

The devolution settlement was drafted, implemented and
is now operated on a day to day basis with the support of
lawyers. The Scottish Parliament rightly has the power to
legislate for devolved matters – power that is extended
greatly by the Scotland Act 2012. Yet in many cases the
Scottish Parliament looks to the UK Parliament for
support. It asks the UK Parliament to legislate so that
•Scottish measures work effectively across these Islands.
And in many cases it consents to the UK Parliament
legislating for Scotland in devolved areas, recognising that
this will be a more efficient and effective than separate
legislation. This is an advantage of devolution: flexibility
of approach and close co-operation between the
Parliaments that serve Scotland.
As the debate on independence proceeds, let’s ensure that
we bring clarity to what devolution actually means, what it
delivers, and how it can continue to evolve.

Secondly, many issues associated with the prospect of
independence have both a political and legal content. We
should not allow the legal aspects to be overlooked. Most
recently, the debate has focussed on whether an
independent Scotland would automatically be a member of
the EU. Some may now regret being quite so forceful in
their assertions about Scotland’s continuing membership
of the EU. Assertion is not enough: we need to consider
the detail, and look carefully at the law.

The UK Government has already set out its initial
conclusions on this issue following a careful consideration
of the issues. As I said at the Edinburgh Centre for
Constitutional Law last month:
“the more likely conclusion – and the one which people
must weigh in the balance before casting their vote – is
that the UK would carry on with its international
obligations, including EU membership as at present. And
the likely consequence is that Scotland would have to
apply to join the EU. That is, if it joined the EU, it would
do so on terms, and it is those terms which would create
considerable uncertainty about the future of Scotland
outside the UK”.

The UK Government will continue to do further work on
these issues, supported by a wide range of legal experts,
many of whom have contributed to the Legal Forum that I
established in the summer to provide the Government
with external input and challenge.
But this work is not simply the preserve of a select group
of experts. Each of you here, as lawyers and as members
and guests of this illustrious society, have a role to play in
elevating the tone and content of the debate, and bringing
clarity to many of the novel and challenging legal
questions prompted by the forthcoming referendum.

I recognise that my political perspective will not be shared
by everyone in this room. But, as a community of lawyers,
let’s not shirk from making a strong and informed
contribution to the mo~t pressing issues that face us at this
time. Following the example of Maxwell Fyfe, that may
involve contributing to the protection and development of
fundamental rights within the UK, and beyond these
shores. For many of us, it will involve contributing to the
debate on our constitutional future. Whatever our
perspective, let’s ensure that our voice as lawyers is heard,
and that these issues are debated with intelligence, clarity
– and a good measure of grace.