Devolution and the implications of independence

Launching the Scotland analysis programme.

This was published under the 2010 to 2015 Conservative and Liberal Democrat coalition government

The Rt Hon Lord Wallace of Tankerness QC

As the Secretary of State has set out the UK Government is undertaking this programme of analysis in order to provide robust, evidence-based information to the people of Scotland in the lead up to what will be the most important decision we will make in our lifetimes.

The paper we have published today examines the benefits that Scotland gains, as well as the contribution we make as an integral part of the United Kingdom. But it also considers the current legal and constitutional position of Scotland within the UK and the legal implications if people in Scotland were to vote to leave it.

These legal issues matter: they determine how a state operates on the international stage and how it organises its affairs at home. It is our view that we cannot engage in a meaningful debate about Scotland’s constitutional future without having a clear understanding of Scotland’s constitutional present.

And the people of Scotland cannot properly weigh the relative merits and demerits of independence without considering the consequences, both international and domestic, of Scotland becoming a new state, separate from the existing UK.

These are complex and difficult issues and that is why the Government has sought the views of experts to inform and challenge our considerations.

Last year I convened a forum of independent experts to examine the fundamental legal and constitutional issues thrown up by the independence debate. The forum includes leading practitioners and academics – many of whom are here today – and its work helped shape and inform the UK Government’s analysis. I would like to take this opportunity to thank all the members for their participation and their contribution to this debate.

We have also taken independent legal advice from two leading experts on international law, Professor James Crawford, and Professor Alan Boyle. This opinion informed our paper and we have taken the step of publishing it today, in full, alongside our paper.

Professor Crawford is the Whewell Professor of International Law at the University of Cambridge, and concurrently a Research Professor of Law at Latrobe University, Australia. He has worked on major projects for the International Law Commission and is considered a global authority on the issue of statehood and on international law generally. He has appeared in more than 40 cases before the International Court of Justice and other international tribunals.

Professor Boyle is Professor of International Law at the University of Edinburgh and a Barrister at Essex Court Chambers. He specializes in public international law and international dispute settlement and has advised various governments and other clients in international disputes. He has published extensively on international public law and has appeared regularly before the International Court of Justice.

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.

The legal opinion sets out four key grounds for reaching this conclusion.

First, the majority of modern international precedents favour that conclusion.

For example, in 1965 Singapore separated from Malaysia. Malaysia retained its international identity and UN membership and Singapore was admitted as a new state. In 1991, after the break-up of the USSR, the Russian Federation, the largest single unit, was regarded as continuing the legal personality of the USSR. And so Russia retained the USSR’s membership of the United Nations and its permanent seat on the Security Council. And most recently, the state of Sudan continued following the separation of South Sudan in 2011.

We also have a precedent much closer to home. The formation of the Irish Free State in 1922 was treated as a change in the UK’s territory and not a break in the continuity of the UK – notwithstanding, I might add, the subsequent change of name from the United Kingdom of Great Britain and Ireland to the United Kingdom of Great Britain and Northern Ireland.

Secondly, Professors Crawford and Boyle observe that certain factors influence state continuity.

These include the continuing state being the unit which retains the majority of the predecessor state’s population and territory. That, of course, would be the case if Scotland were to become independent with the remainder of the UK accounting for around 92% of the population and 68% of the territory of the UK.

Thirdly, Crawford and Boyle highlight likely recognition by other states. Here, the United Kingdom’s position on the international stage is significant. It is one of the 5 permanent members of the UN Security Council, a key member of NATO and the EU and party to several thousand bilateral and multilateral treaties. The international community is likely to recognise the remainder UK as the continuing state – to do otherwise would cause enormous disruption within the international institutional framework.

And fourthly, the legal opinion makes clear that the only way that UK and Scotland could both become new states would be if the remainder of the UK agreed to become a ‘new state’. Some, notably the Scottish Government, have claimed that on independence both the remainder UK and Scotland would become successor states. The so-called velvet divorce of the Czech Republic and Slovakia, where two successor states emerged, is often prayed in aid of this line of thinking. This point is directly addressed in the opinion of Professors Crawford and Boyle. The crucial difference with Scottish independence is that the extinction of Czechoslovakia was effected by the consent of both new states – neither wished to claim continuation of its identity. As we set out in our paper it is hard to envisage any scenario whereby the UK Parliament would ever have a mandate from the people of the remainder of the UK to dissolve the UK by voting the state out of existence.

So that is the position in international law – not just the view of the UK Government, but the view of world leading experts. If Scotland were to become independent, the remainder of the UK would continue, as the same state. Scotland would form a new 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, the European Union (of which more in a moment), NATO and the IMF among many others.

An independent Scotland, however, would have to apply to become a member of whichever organisations it wished to join. There is no doubt that in some cases that would be relatively straightforward –application for membership of the UN, for example, would not be problematic. But application for membership of other organisations would depend on whether an independent Scotland would meet the criteria for membership. An application to join NATO, for example, would require the North Atlantic Council to decide whether Scotland met the membership criteria. That is far from certain.

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.

It has been argued, notably by Professor Sir David Edward, that in accordance with obligations of good faith, sincere cooperation and solidarity, the EU institutions and all the Member States (including the UK), would be legally obliged to enter into negotiations, before separation took effect, to determine the future relationship within the EU of the separate parts of the former UK and the other Member States. However, on either view, an independent Scotland would have to go through some form of negotiation as to the terms of its membership. Crucially, it would not automatically inherit the terms of membership currently enjoyed by the UK. It would not inherit any of the UK’s opt-outs – in relation to the Euro and Schengen provisions on border control - nor would it inherit the UK’s budget rebate, worth some £3 billion to the British taxpayer in 2011. As Sir David said at my legal forum meeting in November, all that is certain is uncertainty.

There are implications too for international treaties. Following independence, the remainder UK would continue as the party to the many thousands of international treaties that it is party to now. An independent Scotland, however, would need to undertake a process of becoming party to, or confirming participation in as many of these treaties as it wished to become a party to.

In some cases, this would be straightforward, for example in the case of many human rights treaties. In many others, it would not, and treaties to which an independent Scotland wished to accede may require re-negotiations that take time to conclude. To take just one example, the UK currently has extradition agreements in place with over 100 countries. An independent Scotland would have to work out what to do about these arrangements and then, if it so chose, go through the resource-intensive process of negotiating bilateral agreements.

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 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.

Alternative propositions have been put forward by the Scottish Government. The First Minister has previously stated that both Scotland and the rest of the UK would be successor states. Reference has also been made to the impact of the Treaty of Union 1707.

These are not arguments we have ignored – we have considered them and addressed them. I have already mentioned why Professors Crawford and Boyle do not consider the dissolution of Czechoslovakia into two successor states to be in point. The legal opinion published today also tackles the question of the Treaty of Union 1707 head on. Professors Crawford and Boyle note that there is an unresolved legal debate about whether the Treaty of Union 1707 ever constituted a treaty in international law, but they take the view that it does not matter. That it is because the Treaty of Union cannot now sound in international law (whatever its historical or political significance) since the states parties to it ceased to be international legal persons on the creation of Great Britain in 1707.

Publishing our paper today is an important step in meeting the UK Government’s commitment to provide evidence and facts to inform the debate about Scotland’s place within our United Kingdom. And by publishing the legal opinion that informs our paper we are taking a further step to inform the debate: people can read the basis on which we are making our case. They can discuss and consider not only our conclusions but our workings. I hope that those who advocate independence will take similar steps to set out the evidence and facts to support their position so that we can truly have an open and honest debate about this most important of issues. I joined the Scottish Liberal Party over 41 years ago, not least because I was attracted to its longstanding policy of a Scottish Parliament within a United Kingdom. This issue has been a thread through most of my political life: as a campaigner for the home rule cause, as a Minister working at the heart of our first devolved government, as a Commissioner bringing forward proposals for reform of the settlement, and now serving as the UK Government’s Scottish Law Officer. Anyone who knows me knows how strongly I believe in devolution and how passionately I care for Scotland. Scotland is stronger as a part of the United Kingdom family, and in my view and that of the Government, the United Kingdom would be truly bereft if we were to leave. I am determined to ensure that as Scotland approaches the historic vote in 2014, we do so having had a fully-informed debate about the issues, based on robust evidence and thorough analysis. Today’s publication is the just the start of that process, and I commend it you.

Published 10 June 2013