"An independent Scotland"

3 An independent Scotland:

http://www.scotland.gov.uk/Publications/2007/08/13103747/0

Summary

To go beyond enhanced devolution to independence would involve bringing to an end the United Kingdom Parliament's powers to legislate for Scotland, and the competence of United Kingdom Ministers to exercise executive powers in respect of Scotland. All of the remaining reservations in the Scotland Act would cease to have effect, and the Scottish Parliament and Scottish Government would acquire responsibility for all domestic and international policy, similar to that of independent states everywhere, subject to the provisions of the European Union Treaties and other inherited treaty obligations.

Introduction

3.1 The previous chapter has explored further devolved responsibilities that could be given to the Scottish Parliament and Scottish Government. This chapter considers what additional steps would need to be taken for Scotland to move to full independence, like other countries in Europe and beyond. During the 20th century, over 150 new independent states were created, a large proportion through de-colonisation and the break up of the former Communist states in central and eastern Europe. Independence has therefore become a normal constitutional position for countries like Scotland in Europe and world-wide, and the nature and status of independent, sovereign countries are well understood.

Scotland as a nation

3.2 Scotland's long-standing union with the other nations of the United Kingdom is based on the Union of the Crowns of 1603, and the Acts of Union of 1707 and 1801. These provide the political and legal underpinning of the current constitutional position of Scotland, supplemented by subsequent constitutional legislation, such as the Reform Acts, the Representation of the People Acts, the Parliament Acts, the European Communities Act, the Human Rights and Freedom of Information Acts, and the Scotland Act.

3.3 The Union created by these Acts did not remove from the people of Scotland their fundamental political right to determine their own constitutional future. The Republic of Ireland and the countries of the former British Empire chose to move to independence from similar constitutional arrangements. The people of Scotland remain sovereign and have the same right to choose the form of their own government as the peoples of other nations that have secured independence after periods of union with, or in, other states.

3.4 In terms of the fundamental Acts underpinning the Union, the Union of 1801 with Ireland has already undergone substantial revision. The Act of Union of 1707 is the focus of debate for further change or indeed repeal; however, the Union of the Crowns of 1603 would continue even after repeal of the 1707 Act.

3.5 Scotland is a recognised political and territorial entity, with its own legal system, borders, and other independent institutions, some of which were deliberately retained within the Union as conditions of its coming into and remaining in effect. Its territorial extent is not disputed. Scotland's maritime boundaries and share of the continental shelf would need to be formally set down, but there are well-established legal principles for doing so.

3.6 Scotland therefore already possesses certain essential elements of statehood: an agreed territorial extent, and an acknowledged political and institutional identity. The people of Scotland have a continuing right to determine their own constitutional position, whether they choose that of an independent sovereign state, or that of membership of the United Kingdom as at present, with or without enhancement of the devolution scheme.

The Scottish Parliament in an independent Scotland

3.7 For Scotland to achieve full independence, the United Kingdom Parliament must cease to have competence to legislate for Scotland and the United Kingdom Government must cease to have competence in respect of executive action in Scotland. Correspondingly, the Scottish Parliament and Scottish Government would assume the full range of competence, duties and responsibilities accorded to sovereign states under international law.

3.8 Renunciation of the competence of the United Kingdom Parliament to legislate for Scotland would require an Act of that Parliament, which would exclude Scotland from its territorial competence and otherwise recognise the status of Scotland as an independent sovereign state. Consequentially, the composition of the House of Commons would have to be changed to remove representation of Scottish constituencies. Further detailed provisions of that Act and complementary legislation in the Scottish Parliament would reflect the outcome of the negotiations between the Scottish and United Kingdom Governments that would precede the transition to independence.

3.9 Scottish legislation concerning the transfer of competence and achievement of independence would need to re-establish the Scottish Parliament on a foundation other than an Act of the United Kingdom Parliament, that is the Scotland Act. Initially, however, it would not be necessary to change the essentials of the framework laid out in the Scotland Act, and legitimised by broad consensus in the country following on the work of the Scottish Constitutional Convention and the referendum of 1997. Membership, elections, chamber and committee structures and proceedings, standing orders and legislative procedures could all continue in their current form. In other aspects, for example, concerning the judicial review of legislation for conformity with human rights obligations, provisions would have to be made to reflect the new circumstances of independence.

3.10 Similarly, the current provisions for an executive branch laid out in the Scotland Act would also provide an initial model for the government of an independent Scotland. The structure of First (or Prime) Minister, Cabinet and Junior Ministers, and Law Officers, and the framework for their powers and accountability to Parliament, would provide a functioning institutional arrangement, although the underpinning legislation is again likely to require extensive revision.

3.11 The Scottish courts and judiciary would remain constituted as at present, but with cessation of appeals beyond the Scottish courts either to the House of Lords and Privy Council, or (in due course) to the United Kingdom Supreme Court. As noted, provision would need to be made concerning the scope of judicial review both in respect of legislative powers of the Scottish Parliament and in respect of executive powers of Ministers. Arrangements would be needed to secure the continuing independence of the judiciary.

3.12 With independence, the Scottish Government would assume from United Kingdom Government Ministers full Ministerial responsibility and functions for currently reserved areas, in addition to their existing powers in devolved areas, and would be accountable to the Scottish Parliament for their exercise of these responsibilities. Consideration would need to be given to the Ministerial and official structure required to support additional functions, and the appropriate arrangements for Parliament to exercise its scrutiny function. This might involve some expansion or re-organisation of existing capacity within the Scottish Government, as well as the committee structure and other business at Holyrood.

3.13 The future of existing cross-border or United Kingdom public bodies would need to be decided, with a view to ensuring continued effective co-operation, while bringing such bodies, as far as they operate in Scotland, within the competence of the Scottish Parliament and the Scottish Government, so as to provide proper accountability and democratic scrutiny of their actions in Scotland. Consideration would also have to be given to the pay, and other terms and conditions, of employees of continuing cross-border service providers, as well as any current United Kingdom-wide pay agreements.

Negotiations with the United Kingdom Government and others

3.14 Transition to independence would require negotiations between the Scottish and United Kingdom Governments in relation to the terms of independence, as well as the arrangements for the transition itself. These negotiations would have to cover sharing the assets and liabilities of the United Kingdom between the remaining parts of the United Kingdom and an independent Scotland. These would include such matters as: apportionment of the national debt; allocation of reserved assets, such as the United Kingdom official reserves, the BBC, and overseas missions of the Foreign Office; future liabilities on public sector pensions, and social security benefits; the split of the defence estate and the equipment of the armed forces.

3.15 Mechanisms would need to be devised to tackle areas of common interest, such as the succession to the throne (as the Union of the Crowns of 1603 would continue). The position of individuals in reserved areas of public service would need to be agreed, particularly the options for those in the armed forces, the diplomatic service and home civil service, and the Revenue and Customs service. Any issues concerning the borders of an independent Scotland, particularly the continental shelf, would also have to be negotiated, but in a manner that respects the governing principles of international law in such matters.

3.16 These issues are likely to be dealt with in an overall agreement between the United Kingdom Government and the Scottish Government, enshrined in legislation enacted at both Westminster and Holyrood, to allow both Parliaments the opportunity to consider and agree matters affecting both Scotland and the rest of the United Kingdom.

3.17 At the beginning of such a process of negotiation, arrangements should be agreed for arbitration under the principles of international law of any issues which the parties find themselves unable to resolve by mutual agreement.

3.18 Negotiations would also be required concerning the terms of Scotland's (and the rest of the United Kingdom's) continuing membership of the European Union and other international bodies to which Scotland currently belongs as a component nation of the United Kingdom. Such negotiations would necessarily involve both the Scottish and United Kingdom Governments, together with international partners.

Consequences of independence

3.19 The major consequence of independence would be the assumption by the Scottish Parliament and Scottish Government of responsibility for those areas reserved to the United Kingdom Parliament and the United Kingdom Government. The significance of this change would depend on the extent to which further responsibility had previously been devolved to the Scottish Parliament and Scottish Government in the areas discussed in the last chapter. However, an independent Scotland would have responsibility for macro-economics, defence and foreign affairs in a way that would not be possible while Scotland remains within the United Kingdom.

Foreign affairs

3.20 An independent Scotland would be recognised as a state in its own right by the international community. It would be able to develop its own foreign policy to promote Scotland's interests internationally, and engage with other states as an equal partner. It would be able to negotiate memberships of international organisations, or enter or withdraw from such bodies, in the same way as other independent nations.

3.21 An independent Scotland would continue in the European Union and bear the burdens and fulfil the responsibilities of membership. Following negotiations on the detailed terms of membership, Scotland would be in a similar position to other European Union member states of a similar size. As a full member of the European Union, Scotland would have the normal rights of representation in its institutions, with an equal status to the other member states. For example, Scotland would expect representation in the European Parliament nearer to that of Denmark, which has 14 members, rather than the current seven members that represent Scotland (which may be reduced to six). Scotland would be bound by the laws of the European Union, but on a level playing field with other full member states. The distinctive interests of Scotland as a member state would be properly represented through the Council of Ministers and the European Council, and the required transposition of European directives and regulations into domestic law would be done with due regard to their effect in Scotland.

3.22 With independence, Scotland would become a full member of the United Nations and other international bodies, such as the Commonwealth, the World Health Organization, the Organisation for Economic Co-operation and Development and the World Trade Organisation. This would give Scotland its own voice on the international stage, allow the distinctive views of its people to be expressed on the range of issues facing the world today, and allow Scottish Ministers to argue for Scottish interests in international negotiations directly affecting the interests of the nation (for example, on international trade).

Defence

3.23 An independent Scotland could also develop its own voice, and its own distinctive contribution, in the area of defence. Scotland has a proud military tradition, which was represented in the historic Scottish regiments, and the naval, army and air force bases that have for many years provided a home in Scotland for the armed forces of the United Kingdom. With independence, Scotland could decide to continue with membership of current international defence alliances, principally NATO, or could opt, like Ireland and Sweden, for a defence posture outside a nuclear-armed alliance but within other co-operation bodies, such as the Organization for Security and Co-operation in Europe, the Western European Union and the Partnership for Peace programme. An independent Scotland would also have to consider the role and scale of its armed forces, and might choose to emphasise international peacekeeping and disaster relief missions. Independence would allow the people of Scotland, the Scottish Parliament and the Scottish Government to have the final say in all of these matters, and in whether Scottish armed forces participate in military actions, such as Iraq.

3.24 An independent Scotland could accede to the Nuclear Non-Proliferation Treaty as a non-nuclear weapon state, as have other successor states to nuclear weapon states. Scotland could not then possess nuclear weapons. The nuclear-armed submarines of the Royal Navy would have to be removed from Scotland, and based elsewhere. Whether the remainder of the United Kingdom continued to retain a nuclear deterrent would be a matter for that state to decide.

The countries of Britain as United Kingdoms and European partners

3.25 On independence, Her Majesty The Queen would remain the Head of State in Scotland. The current parliamentary and political Union of Great Britain and Northern Ireland would become a monarchical and social Union - United Kingdoms rather than a United Kingdom - maintaining a relationship first forged in 1603 by the Union of the Crowns.

3.26 Within this relationship, a broad range of cultural, social, and policy initiatives would continue and it is likely that both an independent Scotland and the remainder of the United Kingdom would seek to maintain a series of cross-border partnerships and services. As members of the European Union, both would enjoy full access to each other's markets. An independent Scottish Government could also look to build on the existing close working relationships within the current United Kingdom and with the Republic of Ireland, and could maintain partnership and co-operation through an effective British-Irish Council (further discussion of the British-Irish Council is in the next chapter).

3.27 Independence for Scotland in the 21st century would reflect the reality of existing and growing interdependence: partnership in these Islands and more widely across Europe.