Scotland: Independence

Lord Kerr of Kinlochard Excerpts

Tuesday 24th June 2014 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

My Lords, I was struck by the litany quoted by the noble Lord, Lord Steel of Aikwood, of Scots who grew, and made good, through the union, living or working outside Scotland. As I rise, the pride of English footballing prowess is trotting on to the pitch to play the might of Costa Rica. It seems appropriate to recall Mr Archie Gemmill, who 36 years ago today scored the finest World Cup goal ever—at the time. Had he stayed in St Mirren, had he stayed in Paisley, had he not come under the influence of the genius Mr Clough, would he have attained the heights that he did? If Sir Alex Ferguson had stayed in St Mirren, who sacked him I believe, would he be the legendary figure that he is now? I really hope that we are not forced to choose between being Scottish and being British. If we are, both sides will lose.

This is an excellent report and I am grateful to the noble Lord, Lord Lang of Monkton, for introducing it. I want to speak only on the premise, which is the premise of the report, that Scotland opts for secession. I hope and believe that Scotland will not opt for secession. What I would have said on the assumption that Scotland chooses to remain in the union has been very well said by the noble Lords, Lord Strathclyde and Lord Richard, and I have little to add to that.

On the premise that Scotland opts for secession, I agree with almost everything in the report. I pause on paragraph 97, where the committee recommends that the necessary negotiation between Scotland and the rest of the UK before independence should be conducted, on the rest of the UK side, by a team from the Government alone. Speaking as a member of a disenfranchised diaspora of Scots, I see certain defects in the Edinburgh agreement: the franchise, the threshold, the question. There is something to be said for having an all-party team negotiating in that situation. I register that as my one doubt about the recommendations of the committee of the noble Lord, Lord Lang.

I hope that in response to the plea made by the noble Lord, Lord Lang, the Minister will assure us that the Government’s policy on international representation is not as described in the report at paragraphs 47 and 49. The committee recommends that in the period between a vote for secession but before the act of secession,

“an agreement be reached between the two governments immediately following a ‘yes’ vote to clarify the basis of such representation for Scotland in the period between that vote and independence day”.

That follows quotations from two Ministers who appear to be arguing that at the moment when the Scots vote for secession but before the moment of secession the United Kingdom Government will no longer be interested in representing their interests abroad.

That cannot be right, as the noble Lord, Lord Lang of Monkton, said. If a Scot is in trouble abroad, he will be entitled to UK consular protection. If a Scottish company needs support, it will be entitled to the support of the UK Government. While the Scots remain UK taxpayers, they are entitled to receive the support and assistance of the Government at home and abroad. If an issue arises in the EU of particular relevance to Scotland—for example, fisheries—in the period after the vote but before secession, the UK Government must devote all their efforts to ensuring the best possible deal for the Scots. I hope that the Minister will be able to reassure us that that would indeed be the position of the Government. The Minister knows his Burke:

“Magnanimity in politics is not seldom the truest wisdom”.

It would be mean, petty, vindictive and wrong to take the line attributed to the two Ministers in the report.

I will make one cognate point, which is the one that the noble Lord, Lord Empey, kindly mentioned that I have made before. Supposing we were in a situation in which Scotland has voted for secession, it is my view—and I know the Minister had doubts about it when I put it to him before—that a responsibility would fall on the UK Government in the period between the vote for secession and the act of secession. We all know that despite the bluster and bravado of the Scottish Government’s White Paper, Scotland could not just pull up another chair at the EU table and carry on as if nothing had happened. We know that we are in Article 49 territory. We know that there would have to be an accession negotiation. We also know that, legally speaking, Scotland cannot even apply until it is a sovereign state—in other words, after the act of secession. Scotland cannot sign a treaty until it is a sovereign state and that treaty would not come into force until it had been ratified by the Scots and all the other member states. I remind the House that Belgium has seven legislatures that would be required to approve the Scottish accession treaty.

It follows that there are two potential periods of hiatus: first, after secession but before a treaty has been signed; and, secondly, during the ratification period. We cannot say, “That is the Scots’ problem”. We cannot just shrug our shoulders and walk away from it. With every respect to the arguments of the noble Lord, Lord Empey, it would be mean, vindictive and narrow-minded—let us remember our Burke—and while Scotland is outside the European Union we, the rest of the UK, would be responsible for manning the customs frontier of the European Union, which would be in Belfast Harbour. Goods coming from Scotland would have to be examined and customs duties charged. We would be rebuilding Hadrian’s Wall. That would be the responsibility of the United Kingdom Government, not of the Scots, who would be outside asking to get in.

It might not be possible to do what I hinted before and am hinting again that we should try to do. The lawyers in Brussels might well say, “No, we stick to the letter of the law. We will not hear the Scottish case for accession until Scotland is a country”. That would be in line with past practice but of course we are in uncharted waters because no member state has ever split before. It is possible to think of a member state, or perhaps several, which would have an interest in ensuring that the Scottish accession was as prolonged, complicated and difficult a process as possible. It might not be an easy task but it is one that the United Kingdom Government would have to attempt.

Let us not exaggerate the difficulties. The accession negotiations themselves would be relatively simple, on three preconditions, because Scotland is in good standing under EU law now—all EU laws apply in Scotland. It is absurd when one gets a spokesman from No. 10 saying that Scotland would have to take its place in the queue behind Montenegro and Macedonia. That is clearly nonsense and we should avoid saying such things.

Three preconditions would have to be met. First, the divorce terms would have to be agreed. You would never persuade the Brussels machine to get in the middle of a debate between Holyrood and Westminster. The terms would have to be agreed and they would have to cover, for example, the currency question. With respect to the Minister, there is no question of the Scots being obliged to join the euro. Scotland is not qualified and will not be qualified. It would fail all four of the tests that you have to pass before you can join the euro. But the Scots would need to be able to tell us, through their advocates in Brussels—if we were taking on the task—what currency they were proposing to use because the Commission and the member states would ask. All that would have to be settled.

The second precondition is that the First Minister of Scotland would have to abandon the ludicrously ambitious aims he sets out in his White Paper. The Minister spoke to the issue of the budget rebate, in my view completely correctly. It is not possible if you are knocking on the door as an applicant to say, “I am afraid I do not want to pay the club subscription”. I do not think you can do that. If you are knocking on the door from outside—no rebate.

Thirdly, it would be necessary for all other member states to acquiesce in this entirely new process: an informal prenegotiation of the future terms of membership for a country that is not yet a country. There is absolutely no precedent for any such thing and, as I said, one can think of several countries, one in particular, which might choose to object. Trying to persuade them not to press these objections would be a task for UK diplomacy in the period between a vote for secession and the act of secession.

It may or may not be possible but I would like to hear the Minister—this time; he was very sceptical the previous time I mentioned it—address whether it is not actually what we should be trying to do. Not only does he know his Burke, he knows his Burns. If there were to have to be a parting of the ways—and I hope and believe there will not—it would be very important that auld acquaintance should not be forgot because we really do not want to have to rebuild Hadrian’s Wall as the EU’s frontier. I really hope that we do not get there but if we do, magnanimity will be extremely important and the Government should act in the spirit of Burke. Let us hope we do not get there. The union is so much more—so much greater, so much bigger and better—than the sum of its parts.