Factual analysis promised as legal implications of Scottish independence made clear
This was published under the 2010 to 2015 Conservative and Liberal Democrat coalition government
An independent Scotland would be regarded as a completely separate state under international law while the continuing UK would retain responsibility for all UK institutions, laws and treaties, according to an expert legal opinion published today.
Professors James Crawford and Alan Boyle, leading experts on international law, have produced a 58 page legal opinion for the UK government which says the overwhelming weight of legal opinion makes clear the UK would be regarded by the international community as the ‘continuing state’. The legal opinion confirms that a vote for independence would make Scotland a ‘successor state’ and specifically rejects the proposition, advanced by Scotland’s First Minister, that Scotland and the UK would both be regarded as two new states following any vote for independence.
Publishing the first paper in the Scotland analysis series ‘Devolution and the implications of Scottish independence’, Scottish Secretary Michael Moore said it was important to set out all the facts for the people who will be making the most important decision in Scotland’s history. The Minister said the Scotland analysis work would provide the facts and a positive case for Scotland’s position in the UK.
The legal opinion published today, which the UK government agrees with, would mean a newly independent Scottish state being required to create a new set of domestic and international arrangements. Negotiations would need to take place with the UK government on any requests to retain UK wide arrangements on matters such as a currency union, financial regulation and national security. An independent Scotland would also need to negotiate with the European Union to agree new terms and conditions.
The opinion also concludes that, in the event of a vote for independence, the UK would not have to negotiate new international treaties or memberships because, as the continuing state, they would be largely unaffected under international law.
Speaking at the Signet Library in Edinburgh, Scottish Secretary Michael Moore said:
This first paper examines the UK’s constitutional set-up and the legal implications of the forthcoming referendum. It makes the case for Scotland’s constitution today.. It makes the case that devolution – Scotland’s constitution today – offers our country the best of both worlds.
We are a strong and proud nation within a modern, devolved country. Devolution has enabled those of us who live and work in Scotland to take important decisions on issues that affect our daily lives: from what our children are taught at school; to the way in which hospitals provide care; to how many police officers are out on the street.
And our paper is very clear: independence would end devolution. It is not an extension of it. But devolution is not just about the things that are devolved to the Scottish Parliament. It is also about the things that are looked after at Westminster. Devolution means that Scots can continue to benefit from being part of a larger UK.
Our first paper in the Scotland analysis series examines some of the key benefits that come from being part of a family of nations. This first paper is not just about setting out the facts about what we have. It is also about setting out the legal and constitutional position of Scotland within the United Kingdom and the implications of independence.
Our paper is informed by expert opinion from two leading authorities on state formation and how this is seen in international law. We have published the opinion from Professors Crawford and Boyle alongside our paper.
What this legal opinion makes clear is that legally and constitutionally, leaving the UK would have serious repercussions which would affect all of us in Scotland. This is a debate that cannot be left to lawyers and experts alone, everyone must participate in it. I want you to read this paper – and the papers that will follow. I want you to ask us questions. And I want you to encourage others in your organisations to do the same.
The Advocate General Lord Wallace QC said:
The opinion from Professors Crawford and Boyle concludes that, in the event of a vote in favour of leaving the UK, in the eyes of the world and as a matter of law, Scotland would become an entirely new state.
In international law, new or ‘successor’ states are regarded as fundamentally different in law from ‘continuator’ states. A successor state, in contrast with a continuing state, does not automatically inherit the rights, obligations and powers of the predecessor.
The legal advice is clear. In the event of independence, the remainder of the UK would continue as before, and Scotland would form a new, separate state.
Of course none of this analysis precludes Scotland becoming independent, far from it. But it is clear that there are implications that flow from the legal position of a new Scottish state. Our paper explores these implications and I would like to draw your attention to some of those now.
First, there are implications for membership of international organisations- On independence, the remainder of the United Kingdom, continuing as the same state as before, would maintain its membership of international organisations on the same terms as it does now. This includes the United Nations, European Union (of which more in a moment), NATO and the IMF among many others.
The question of membership of one particular international organisation, the European Union, has generated a great deal of discussion. The position of the European Union is unique in many ways- it has its own body of law, its own institutions, and in that sense is unlike any other international organisation – it is a “new legal order of international law”. Nevertheless, Professors Boyle and Crawford point out, it is an international organisation, and in the absence of any specific provision in its rules to the contrary, a new state such as Scotland would not join automatically on separation from an existing Member State. There is no explicit treaty provision for this process in the EU’s own membership rules, and so there is no reason to think that Scotland would be entitled to join without some form of accession process, and therefore no basis on which Scotland could somehow automatically inherit the UK’s existing opt-outs.
But it is not only international implications which flow from the conclusions reached by Professors Crawford and Boyle. There are significant domestic implications to be considered too.
The Scotland analysis programme will explore many of these implications over the course of the coming months, but for now I will mention one issue. Following independence, institutions of the UK would also continue to undertake their functions on behalf of the remainder UK. Two pertinent examples are the Security Services and the Bank of England. An independent Scotland may, as part of the negotiations, request the rest of the United Kingdom for agreements whereby it makes use of the continuing UK’s existing institutional mechanisms. But that would depend on the outcome of negotiations with the remainder of the UK. And we cannot begin now to predict the outcomes of those negotiations.
Scotland Office Minister, David Mundell said:-
The devolution settlement is capable of change when the case is made as the Scotland Act 2012 delivered by this government has shown. So it is simply wrong to characterise the referendum as a choice between change and no change. By changing and adapting the devolution settlement will continue to deliver the best of both worlds for Scotland. Independence would end it.
NOTES TO EDITORS
The UK government’s Scotland analysis programme will be formally launched on Monday 11 February. The programme is examining how Scotland contributes to and benefits from being part of the UK, and how the rest of the UK benefits from its partnership with Scotland. It will provide evidence and analysis to inform the public debate on Scottish independence ahead of the referendum. The UK government will be producing a series of papers over the course of 2013 and 2014 covering key legal, economic and policy issues in the debate. The work programme was announced to the House of Commons by the Secretary of State for Scotland on 20 June 2012.
The programme will look in detail at the key issues in the Scottish independence debate including:
- the legal and constitutional set-up, including the current relationship within the UK and the legal implications of a vote for independence
- the economic questions, including the UK’s economy and public finances and Scotland’s part in that, and the shared institutions and key sectors that support the UK’s and Scotland’s economic performance
- wider important policy issues such as the UK’s place in the world, shared defence and security services, energy, the UK’s world-leading financial services sector, welfare and pensions, and culture.