Implications of a 'Yes' Vote for Scotland

Scotland

In the week that the Privy Council gives final approval to the Section 30 Order that will permit the Scottish Parliament to legislate for a referendum on Scottish independence both the Scottish and UK Governments have published documents which consider the legal implications of a "Yes" vote for independence. Unsurprisingly the documents present a very different view of the legal and practical issues that would arise.

The Scottish Government's Scotland's Future: from the Referendum to Independence and a Written Constitution sets out the SNP Government's vision for a transition to independence. The document states that:

Following a "Yes" vote in the autumn of 2014, Scotland should become an independent nation by March 2016, a period of approximately 16 months;
Scotland should have a written constitution which "expresses [Scotland's] values, embeds the rights of its citizens and sets out clearly how institutions of state interact with each other and serve the people";
The Scottish Parliament, elected post-independence, should convene a constitutional convention to draft the written constitution, the remit and membership of the convention being determined by the Scottish Parliament;
While the content of the written constitution will be determined through the constitutional convention and the participation of many parties, the Scottish Government believes that certain provisions should be included or considered: equality of opportunity and constitutional rights in areas such as welfare, pensions, healthcare and education; constitutional protection of principles on climate change, the environment and sustainable use of Scotland's resources; a constitutional ban on nuclear weapons being based in Scotland; and constitutional controls on the use of military power;
In the period between a "Yes" vote and independence a constitutional platform should be put in place, providing the legal, financial and other arrangements necessary to ensure that Scotland, its Parliament and Government can function effectively across the full range of national issues. This would involve negotiation and conclusion of a range of agreements on the final independence settlement and including: division of financial and other assets and liabilities, transfer of political authority over institutions previously controlled from Westminster, ongoing cooperative arrangements between an independent Scotland and the UK, and a timetable for removal of nuclear weapons from Scotland; and
Parallel discussions should take place to agree the terms of an independent Scotland's continuing membership of the European Union and other international organisations.


The UK Government's Scotland analysis: Devolution and the implications of Scottish independence considers Scotland's current constitution, including the devolution of power to the Scottish Parliament, and presents a very different analysis of the legal and practical challenges of Scottish independence. The paper draws upon a legal opinion of two legal experts in state formation and international law. The UK Government's view is that:



Following a "Yes" vote, Scotland would become an entirely new state. It is not legally possible for two states to inherit the international personality of the former state and the UK (less Scotland) would be the continuing state retaining the rights and obligations of the current UK;
In the event of a "Yes" vote the UK Government would represent the interests of the continuing UK in independence negotiations with the Scottish Government, but unless and until there is a "Yes" vote the UK Government cannot enter into negotiations that would require it to act solely in the interests of one part of the current UK;
The UK's membership of international organisations such as the EU, NATO and the IMF would be largely unaffected by Scottish independence. Scotland, as a new state, would have to apply for or negotiate membership of such organisations;
As regards the EU, the UK's membership would continue automatically. Scotland would have to negotiate a mechanism for EU membership and there is a "strong case that it would have to go through some form of accession process";
An independent Scotland would also have to work through its position on thousands of international treaties where rights and obligations would default to the continuing UK;
Domestically, the Westminster Parliament would remain sovereign for the continuing UK and the existing body of domestic law would continue to apply. However, key UK institutions such as the Bank of England and security and intelligence agencies would have no power or obligation to act in or on behalf of an independent Scotland. An independent Scotland could ask to make use of UK institutions and arrangements but this would be subject to negotiation with the continuing UK; and
Detailed negotiations would be required on a very large set of institutional arrangements that currently span the UK.


Comment

These are the first of what will no doubt be many analyses of the legal implications of a possible "Yes" vote for Scottish independence. The Scottish Government has stated that further papers will outline how responsibilities in reserved areas such as welfare and pensions would transfer to the Scottish Parliament . The UK Government is to publish further reviews of Scotland as part of the UK economy, Scotland's place in the world, and its economic performance.