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For 112,180 days the kingdoms of England and Scotland have been joined in one political union: the United Kingdom.
On 18 September—in 78 days—the Scottish people will vote on whether to dissolve that union and become an independent state.
Like the agitated bubbles in a Champagne bottle which is being teased open, the debate is now reaching its crescendo. At an Evening Standard event in London's Guildhall last night, leading public figures—from Danny Alexander (Chief Secretary to the Treasury) to Hardeep Singh Kohli (comedian and self-styled trouble-maker)—discussed the pros and cons of Scotland going it alone. The arguments were erudite, witty and bad-tempered as, in fairness, all impassioned politic discourse ought to be.
'Yes' voter Stewart Hosie, SNP MP for Dundee East, gave an animated speech bemoaning the 'negativity' of the 'no' campaign. He mocked, to much laughter from those gathered in the Great Hall, those who think Scotland can't be independent 'because there would be too many forms to fill in'. Bureaucracy 1, Independence 0?
On the other hand, Helena Kennedy QC, 'no' voter, Labour peer and a 'proud Scot', believed that romantic nationalism 'is a retreat from the future'. She espoused a federal structure for the UK, believing that economic division would be the wrong path to take in a future of rapid globalisation and increasingly powerful corporations.
With odds of 1/6 for 'no' and 7/2 for 'yes', it is clear nobody quite knows who will be opening the bottles of chilled Champagne in the wee small hours of 19 September.
Lawyers like certainty.
At the moment, however, commercial lawyers are on a hiding to nothing if they think that they can find overall legal certainty in this area, certainly before the referendum takes place.
Nobody knows, for example, what currency would be circulating on Independence Day or even what it might be called.
That said, there seems to be a wee bit more confidence in how the legal system itself would deal with independence.
The Scottish Independence Bill, recently published by the Scottish Government provides, at clause 34, that the laws which are in effect in Scotland immediately before independence would continue to apply post-independence until modified or repealed.
Therefore, if this bill were ever to be enacted, any UK wide law that applies to Scotland, such as the Companies Act 2006, would continue to apply until changed or repealed.
Mark Ellis, Partner at Scottish law firm Burness Paull LLP, confirms this stance:
We would anticipate that the status quo for commercial law would continue to apply for at least an interim period. The timescale for any change would depend on the legislative priorities of the new independent Scottish government
UK-wide statute law, even though it is somewhat limited in quantity for commercial lawyers, could have an impact for years or even decades to come north of the border. As the Scottish government acknowledges:
There are Westminster statutes which were carried over to an independent Ireland and which remain in force in Ireland still, and which the Dail Eireann, even after 90 years of independence, has never felt the need to entirely rewrite
Moreover, EU law will continue to apply: this would probably be the case even in the worst case scenario of there being a hiatus in Scotland's membership of the EU. After all, if Scotland wants to join the EU it would doubtless look to apply all relevant EU laws, even if it doesn't technically need to do so, in order to show itself to be a model European state.
Some businesses have already started to tread gingerly into this legal and regulatory quagmire.
In February this year, Standard Life announced that it had 'started work to establish additional registered companies to operate outside Scotland' into which it could transfer parts of its operations if it was necessary to do so. It added that this was a 'precautionary measure' to ensure the 'continuity of [its] businesses’ competitive position' and to 'protect the interests of [its] stakeholders'.
Other companies have started to do the same.
So does this mean that lawyers have started cancelling holidays en masse to deal with the massive inflow of independence-related work?
But there are definitely things that lawyers can start thinking about now.
So what do you think lawyers should be doing? Should they wait until the referendum? Is it 'too early to say'?
Let us have your thoughts below.
London Evening Standard debate last night
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