Scotland: Independence

Lord Lang of Monkton Excerpts

Tuesday 24th June 2014 Lords Chamber

[Lord Lang of Monkton (Con)]

My Lords, I would very much like to contribute to the main debate today but my first duty and privilege is to speak to the report from your Lordships’ Constitution Committee on the constitutional implications of the referendum on Scottish independence. I am grateful that we are able to debate the report so soon after it was published, and to the many expert witnesses who gave evidence to us.

This is my first speech as chairman of the Constitution Committee and, before addressing the report, I put on record my thanks to my predecessor, the noble Baroness, Lady Jay of Paddington. I know I speak on behalf of the whole committee in saying how effective and skilful she was in the chair. The committee’s success in recent years is in large measure down to her.

I earnestly hope that the work embodied in our report on what might need to happen in the event of a yes vote will turn out to be redundant. However, the committee felt that there had been relatively little consideration of what the constitutional implications of such a vote would be. It is well to be prepared for the worst while striving to prevent it from arising.

It emerged from our inquiry that certain legal principles would govern the aftermath of a yes vote, some of which are founded in international law. Perhaps the most important is that the rest of the United Kingdom would retain the personality of the existing UK and thus become the continuator state. This would mean that it would retain the treaty obligations and membership of international organisations of the existing UK. For example, it would remain a member of the EU, the UN and NATO and would not have to apply to them anew. Scotland would become a new breakaway successor state. It would have to seek membership of international organisations and, where it does not already have them, create its own institutions. That was the overwhelming view in the evidence that we heard and we agreed with it. Whether by international precedent, share of population and territory or by recognition by other states, there is no room for doubt; all legal principle and convention point to that fact. No realistic alternative has been offered, not even by the Scottish Government.

This conclusion leads directly to the question of the division of assets and liabilities between Scotland and the rest of the United Kingdom. The most important established legal principle would be that they should be shared equitably between the two states. Fixed or immovable assets, such as government or military buildings, would automatically become assets of the state in which they were located. However, moveable assets, such as military equipment, would be subject to apportionment through negotiation. Similarly, the apportionment of liabilities, such as the national debt, would also be subject to negotiations. All this is already well recognised, but the status of the UK as the continuator state has particular importance where its institutions are concerned.

The precedents are clear beyond doubt: the institutions would remain with the United Kingdom. Whether it is the Bank of England or the National Lottery, the nation’s intelligence services or the BBC, the Supreme Court or the UK’s worldwide Diplomatic Service, its research councils, all its administrative and regulatory services and countless more institutions, all would remain with the United Kingdom. There would be no obligation on the UK Government to bring them forward for negotiation. A vote to leave the UK is a vote to leave the UK’s institutions. It is essential that those voting in September’s referendum understand what is at stake. That is why the Chancellor of the Exchequer, when he made it irrevocably clear that a shared currency would not be agreed to, was on strong legal grounds and was able to do so without qualification.

I turn now to the significant implications of independence for the constitutional institutions of the UK. Evidently, legislation would need to be passed by this Parliament to facilitate Scottish secession from the union. That legislation would need to end Parliament’s legislative competence over Scotland, and it is likely that extensive consequential legislation would also be needed. In the period between a yes vote being delivered and the date of actual independence, Scotland would still be in the union although it would be known that independence was on its way.

We were taken by surprise when the Secretary of State for Scotland told us that:

“Unless and until the people of Scotland vote otherwise, the UK Government will continue to act on their behalf”,

and when a Foreign Office Minister said:

“If Scotland votes for independence, from that time on ministers in the UK Government will have a responsibility for people of the rest of the United Kingdom”.

Surely it cannot be right that from the moment of a yes vote, many months or possibly years before an actual date of independence, the UK Government would cease to act in the interests of the people of Scotland. I hope that my noble and learned friend will be able to clarify the Government’s position on this at the end of today’s debate. It would mean that for that transition period the UK Government would not take into account the interests of Scotland when making policy on reserved matters, and Scotland would not be represented internationally. This could leave Scotland in constitutional limbo.

We therefore recommended that the two Governments should reach an agreement immediately after any yes vote to clarify the international representation of Scotland, and that during the transition period the UK Government should take long-term decisions on reserved matters primarily or solely affecting Scotland only after consulting the Scottish Government. I think that your Lordships will agree on the logic and common sense of that; it seems to me to be inescapable.

The impact of independence on the House of Commons would also be profound. It is widely accepted that the 59 MPs representing Scottish constituencies would have to depart the Commons. The committee concluded that they should depart on the date on which Scotland secedes from the United Kingdom. Until then, their constituents would still have a right to representation at Westminster. Legislation to this effect would be necessary.

Although those MPs would remain Members during that period, it also seemed clear to us that they should not participate in parliamentary business that does not affect Scotland. As one of our witnesses said, that would be like,

“the West Lothian question on steroids”.

It may be that the Commons could make internal arrangements to address the matter or that Scottish MPs excuse themselves from votes on non-Scottish business. Whatever the answer, we think that the matter should be resolved quickly should there be a yes vote. It should certainly be settled and enshrined before the 2015 general election.

As your Lordships would expect, the committee turned its mind to the implication of independence for your Lordships’ House. Most Members of this House hold peerages of the United Kingdom. We do not represent territories. As this Parliament would remain the Parliament of the rest of the UK, Peers of the United Kingdom would continue to have the right to sit in it. However, under the Constitutional Reform and Governance Act 2010, all Members of this House are deemed to be,

“resident, ordinarily resident and domiciled in the United Kingdom”,

for purposes of certain taxes. Unless that law were amended, it would mean that Members of the House who live in Scotland, currently estimated at more than 60 Members, would either have to pay tax in the rest of the UK or they would have to retire from the House on the date of independence.

Independence may also affect the six Members of the House who sit solely by virtue of a Scottish peerage. It would need to be decided whether they should be entitled to continued membership of the House on the basis of a Scottish peerage alone. However, these are matters that need not be decided until after 18 September, when I hope that such decisions will become unnecessary.

Turning to consideration of the negotiations that would follow a yes vote, it seems obvious that just as the seceding state of Scotland would negotiate in its own best interests, so the sole objective of the negotiators for the rest of the UK would be to secure the best outcome for the people of the rest of the UK. All other considerations flow from that. We heard different suggestions as to who should be represented on the rest of the UK’s negotiating team. We concluded that while it would be important for the Official Opposition and devolved Executives in Northern Ireland and Wales to be consulted during the negotiations, the actual negotiating team should most effectively be small and composed solely of representatives of the UK Government. That would, incidentally, follow the precedent of 1922 and would seem to offer the best prospect of successful negotiations within a reasonable time.

Related to that, we reached the conclusion, supported by our witnesses, that Scottish MPs, whether Back-Bench or Ministers, should not be on the negotiating team for the rest of the UK. Their duty as MPs would be to represent their Scottish constituents. That would conflict with the objective of the rest of the UK negotiating team to secure the best outcome for England, Northern Ireland and Wales. Nor did the committee think that Scottish MPs should play any part in debating or approving the negotiations; again, there would be a clear conflict of interest. Were there to be a yes vote, we recommended that the UK Government should put before Parliament a proposal to put these matters beyond doubt at an early date.

It would also be undesirable for either one or both of the negotiating teams to be unable to start work because of avoidable legal challenges. We therefore recommended that soon after any yes vote, a Bill should be introduced to this Parliament that would devolve power to the Scottish Parliament to make provision about a negotiating team for Scotland and to create a legal basis for the UK negotiating team. Such a Bill need not name the negotiators. The intention of it would be simply to put the legal basis of their position beyond doubt.

The committee also considered the timetable for negotiations. The Scottish Government have set out their proposed timetable, which would see Scotland becoming independent on 24 March 2016. We heard mixed views on how realistic this would be, but the key point is surely that the date has no formal status. It is an aspiration of the Scottish Government but the negotiations would take as long as they took. There is no constitutional principle involved and there would be no obligation on either side to meet a specific target date.

I hope that in producing this report the Constitution Committee has provided some clarity on what a decision taken by Scotland to vote for independence would mean in the short term for the constitution of the rest of the United Kingdom. Longer-term constitutional damage is harder to assess.

By way of an antidote, I turn from contemplating what would need to happen if there were a yes vote to the wider and more immediate debate itself and the need to press the arguments for voting no. I reflect that 700 years ago today we Scots won a great victory against overwhelming odds over an invading English army. It changed our history but brought us neither security, order nor prosperity, all qualities that give substance to the word “freedom”. It did not end the fighting, which went on. Just over 200 years later, we were the invading army and England won, but still the fighting continued. The lessons of Bannockburn make sense only when considered alongside the lessons of Flodden. Only in 1707, after the Treaty and Acts of Union that created one country—Great Britain—had abolished English and Scotland as separate states, did lasting peace break out, and with it prosperity, intellectual flowering and national security. Since then, except for Culloden when Scots fought on both sides, we have always stood steadfast together against common enemies and seen them off. Together we have prospered in peace and security.

Next week Her Majesty the Queen will come to Scotland to launch the biggest ship and the greatest defence vessel ever built in the United Kingdom. No part of the UK could have done it alone. That aircraft carrier, HMS “Queen Elizabeth”, is designed to serve the cause of peace, security and freedom for the next generation of all of us in this country and beyond. It is 100% British and a triumph of co-operation, to be launched at Rosyth but bringing together the workmanship of thousands of skilled workers there, on the Clyde, on the Tyne, at Portsmouth, at Birkenhead and in Devon. Nothing better exemplifies the extent to which all the peoples of the United Kingdom are better together. There is our future security. What a contrast it is to the alternative of a separate breakaway Scotland, isolated and unable to defend its own shores, let alone the vast areas of open skies and seas to the north and west. Not only would secession jeopardise Scotland’s own security, it would also blow apart the highly integrated nature of the UK’s defences, in which Scotland plays such an important role.

The referendum in September is not just about Scotland’s future; it is about the future of the whole United Kingdom. In striving to save Scotland for the union, we would also be saving our United Kingdom.