Even if the 2014 independence referendum results in a `no` vote, the question of Scotland`s constitutional status will not go away. About a third of voters seem ready to support independence, a considerable minority in itself. The position favoured by most Scottish voters seems to be devo-max, at least according to successive polls and polls; in other words, the granting of full and additional tax powers to Scotland while it remains in the United Kingdom, and this is not an option that is presented to voters. All the major Unionist parties (Labour, Liberal Democrats and Conservatives) agree that “more decentralisation” is desirable – the point of contention is, as much more. But is there also the boring question of how to define devo-max? Is social assistance and social benefits within this area of jurisdiction? What about nuclear defense? These two issues are playing an increasingly important role in the independence debate. The Edinburgh Agreement includes a main agreement signed on behalf of the Scottish Government by Prime Minister David Cameron, Scottish Secretary of State Michael Moore and First Minister Alex Salmond and Deputy First Minister Nicola Sturgeon. This main agreement outlines in broad terms the principles to which both governments have committed themselves – rather, it is a “declaration of principles” that gives more detailed commitments (see the similar structure of peace agreements in the Middle East!). This preliminary agreement is accompanied by a Memorandum of Understanding and a draft of Section 30, which are part of the front-piece agreement “part of this agreement”. From a technical point of view, therefore, the “Edinburgh Convention” covers all three documents.
What is the legal status of the agreement as a “concorda”? Well, he`s notoriously insequent. The guidelines published in 1998 and 2005 suggest that the agreements are not intended to create legal obligations or restrictions, but to serve as the basis for administrative cooperation and information exchange. The terms of the agreement are often referred to as “non-binding” as “honorary” declarations of intent that are not intended to establish contractual agreements (see Condordats and Devolance Guidance Notes, House of Commons Library, SN/PC/3767, October 7, 2005). Nevertheless, commentators refer to these agreements in the “Twilight Law Terms” as an area of “para-constitutional law,” agreements between governments that serve almost as a form of “quasi-contractual laws” or “soft laws” for public servants, because they raise expectations and behaviours. The lack of legal status also places ideas above the usefulness of the right to Serden. No one cares whether or not the Edinburgh agreement is consistent with the rule of law, simply because it does not matter. The agreement may have all the necessary conditions for the success of automatic enforcement: strict legislation, a culture of governments that respects formal obligations and reciprocal interests that are blocked by the reputational costs of an offence. It is hard to imagine how the “added value” of a legal agreement – law enforcement – would help. These ingredients remain or will not be: if the agreement is executed itself, no dish is necessary, whereas if a party presses a “destruction button” for a reason currently unpredictable, no dish is enough. Well, lawyers like to think about hypotheses, and there is a 99.99% chance that this discussion is purely hypothetical. To be quite clear, I am not proposing or trying to suggest that the Edinburgh Agreement is misleading, that it is probably disgraced or that the issues it purports to resolve are not resolved.
But in an academic discussion, maybe it`s not ridiculous. Assumptions are not just imaginative intellectual exercises; they help us understand the legal consequences of a situation.