Scotland politics

Scottish independence: At-a-glance of UK government's legal case

UK government document

The UK government has produced the first in a series of documents in which it sets out the case to keep the United Kingdom together.

The Scottish government is holding an independence referendum in autumn 2014 in which it wants the people of Scotland to vote yes to the country going it alone.

Scottish Secretary Michael Moore said Scotland benefited most from staying inside the UK.

He also published legal opinion suggesting an independent Scotland would be regarded as a separate state under international law.

Here is a look at the key points of the document:

Introduction

  • The uniting of the Kingdoms of Scotland and England to form the Kingdom of Great Britain in 1707 is one of the most important moments in the island's story.
  • The referendum presents one of the most important decisions in Scotland's and the UK's history. It is therefore important that the debate - and people in Scotland - is properly informed by analysis, and that the facts that are crucial to considering Scotland's future are set out.
  • In June last year, the secretary of state for Scotland, Michael Moore, announced that the UK government was commencing a detailed programme of analysis on issues such as the constitution, the economy, public finances and taxation, defence, energy and welfare.
  • The analysis would examine Scotland's existing arrangements and position as part of the UK. It would also analyse, where possible, some of the potential implications of independence.
  • This first paper in the series seeks to lay the foundations for the rest of the programme by examining both the current legal and constitutional arrangements for Scotland within the UK and some of the potential consequences of independence.

Chapter 1 - Scotland's constitution today

  • Ultimately, devolution operates within the UK, and means that in Scotland people have the benefit of two parliaments and two governments. Legally and constitutionally, independence is a different proposition. Independence would result in an end to devolution - and the benefits it brings - rather than a continuation of it.
  • A unique set of Scottish institutions and systems continue to exist and flourish within the UK, supporting a strong Scottish culture and distinct civic life. These include the Scottish education system, the Church of Scotland and Scots law.
  • A central pillar of the Scotland Act 2012 is the extensive devolution of further financial powers to the Scottish Parliament. The key measures that will come on stream over the next three years including new "devolved taxes".
  • Scotland benefits from UK-wide security; a single domestic market across the whole of the UK and the influence of the UK through membership of the EU, the North Atlantic Treaty Organization (Nato), the Commonwealth and the United Nations (UN) Security Council.
  • Devolved powers in action are seen in transport, land reform and counter-terrorism operations.

Chapter 2: What independence would mean in law and practice

  • Independent legal opinion by two of the world's leading experts in international law and the law of state formation concludes that, in the event of independence, the UK would continue and Scotland would form a new, separate state.
  • Given this, representatives of the UK government would enter any negotiations on the terms of independence as representatives of the continuing state of the UK.
  • All UK government ministers have a responsibility to the citizens of all parts of the UK, and cannot undertake any activity that would undermine those duties.
  • For that reason, neither the UK government nor the Scottish government can enter into talks in advance of a referendum on the terms of independence.
  • In the event of independence, there would be a new state in the international community called Scotland. The question is then - what happens to the state known as the UK? The UK could carry on legally as before, but without Scotland. Alternatively, the UK could cease to exist and two new states could come into being - Scotland, and one comprising England, Wales and Northern Ireland that has not previously existed.
  • If independence happened - there would be legal and international complexities, the scale and complexity of the negotiations task would be considerable. The talks could take a long time.
  • Finally, the negotiations cannot be conducted in advance of the referendum

Chapter 3: Implications of independence in legal and practical issues at home and abroad

  • The findings of the legal opinion show that as the continuing state, the United Kingdom's (UK) membership of international organisations (including the European Union (EU), the North Atlantic Treaty Organization (NATO), the International Monetary Fund (IMF), the G8 and G20) and treaties would be largely unaffected by Scottish independence.
  • By contrast, an independent Scottish state would be required to apply and/or negotiate to become a member of whichever international organisations it wished to join as a new state. In some cases this would be straightforward; in others, notably the EU, it would not. It would not, as the Scottish government has suggested, be within the gift of the Scottish Parliament or the UK Parliament to decide these matters.
  • Crucially, the UK's membership of the EU would continue on existing terms. That would include retaining the UK's opt-outs on, for example, currency, or the UK rebate, although there would need to be technical adjustments consequent upon the reduction in the UK's population.
  • The key issue, therefore, relates to an independent Scotland's membership of the EU. As outlined, an independent Scottish state could not automatically become a new member of the EU upon independence because there is no explicit provision for this process in the EU's own membership rules.
  • International treaties constitute a major source of international law and are critical to establishing the respective rights and obligations of states in relation to many political, economic, military, environmental and other matters. They lie behind virtually every aspect of human activity with an international dimension, from television programme exchange to war and peace; from regional fishing arrangements to contractual obligations and copyright.
  • The UK has been involved in up to 14,000 treaties, bilateral and multilateral, and as the continuing state in the event of Scottish independence all existing UK treaties would continue to apply to the remainder of the UK.

Conclusion

  • People in Scotland need accurate information in order to make an informed decision about the critical question of the future of the UK and Scotland's place within it when they come to vote in the referendum in 2014.
  • The paper provides analysis of how devolution operates today and what it offers to people in Scotland and the whole of the UK.
  • It also provides a robust legal basis for one of the most important issues that is central to the debate ahead of the referendum - namely that in the event of independence the UK would be the continuing state and Scotland would have to form a new state.
  • Throughout the course of 2013 and 2014, the Scotland analysis programme will look in more depth at the key issues at stake, building on the underlying legal issues outlined here.
  • The aims of this programme is to ensure that, when people in Scotland come to make their choice in 2014, it is in full knowledge of how the UK works and what the implications of leaving it may be.