HC 643 The foreign policy implications of and for a separate Scotland

Written evidence from Dr Daniel Kenealy, Lecturer in Politics and International Relations and Deputy Director of the Scottish Graduate School of Social Science, University of Edinburgh


· The starting premise of this evidence submission is that, should it become an independent state, Scotland would be classed as a seceding state and the rest-of-the-UK (RUK) would be classed as a continuing state. The evidence argues that the main thrust of RUK foreign policy, RUK’s standing in the international community, and RUK’s influence would not be altered in any fundamental way.

· There are several concrete implications of an independent Scotland, however, that ought to be considered. First, RUK would have to establish and develop a new bilateral relationship with Scotland, a relationship that would likely be institutionally dense and very close. Second, Scottish independence has the potential to complicate RUK’s position within the EU. Third, given the homeland security and intelligence-sharing implications of a shared island space, RUK’s bilateral relationship with the US – particularly concerning intelligence cooperation – might be affected.

· The work of the Foreign and Commonwealth Office (FCO) would be largely unaltered although it would almost certainly have to establish appropriate diplomatic and formal institutional channels between London and Edinburgh. An independent Scotland could emerge as a key competitor of RUK in the contest for inward investment and the FCO (along with UKTI) would have to strategise and respond accordingly.

· The evidence concludes by identifying some key factors that could influence the basic shape and scope of a Scottish foreign policy. Specifically, Scotland would have a national interest in an open global trade system, a competitive and investment-oriented foreign policy, and a may take on the role of a ‘Small Power’ in military and strategic terms.


1. The first issue that I wish to deal with is the ‘particularly complex one’ of state succession in international law. [1] Questions relating to continuity and succession are often of great difficulty in international law. While some argue that Scottish independence would lead to the dissolution of the UK, and thus the emergence of two new states (such as happened when the Czech and Slovak Federal Republic was dissolved in 1992), this is to misstate ‘both the legal effects of the Acts of Union and their status in United Kingdom constitutional law’. [2] The starting assumption of this evidence is that, following independence, Scotland would be deemed a seceding state with RUK deemed a continuing state. [3]

2. It follows from paragraph 1 that, in formal legal terms the membership and standing of RUK in key international organisations would remain unaltered. If one considers, for example, membership of the UN it seems most likely that RUK would not only continue the membership of the UK but would also retain the UK’s veto in the Security Council. Scotland would, following the assumptions of this evidence, have to apply for membership of the UN. [4] Other international organisations ‘tend to follow the lead of the UN when making determinations whether any particular instance of a State breaking up is one of secession from a continuing State or of dissolution’. [5] It is thus assumed that Scotland would apply for membership of the international organisations that it wished to join. The outcome would be the result of the specific rules of the international organisations in question, the underlying interests of existing member states, and the extent to which the rules of the organisation empowered member states to impede the accession of new members.

3. When assessing issues of state succession international law is imprecise. However, what is clear is that the perception of other states and international institutions is important. [6] It seems highly probable that RUK would make a claim to be the continuing state of the predecessor state (i.e. the UK) and then, the question becomes, are other states and international institutions likely to challenge this claim, or accept it? While no definitive answer can be given it seems most likely that RUK’s standing as a continuing state would be broadly accepted on pragmatic grounds if no other.

4. If RUK’s position as the continuing state of the UK were accepted then the international standing, influence, and foreign policy priorities of RUK would remain largely unaffected as a result of Scottish independence. To be clear, RUK’s foreign policy preferences may well change in future years but it is hard to envision why Scotland’s independence would play any causal role in such change. RUK would, in essence, be slightly smaller, slightly less populous, and with a smaller GDP than the former UK, but the broad outlines of its foreign policy need not change as a result.

5. Of course, there remains an existential issue concerning the impact of Scottish independence on nationalist sentiment throughout RUK. Should Scottish independence bolster similar pro-independence or secessionist movements elsewhere then RUK could find itself in a situation where an inward focus on managing a fracturing state would consume a tremendous amount of its attention, and possibly its resources. [7] Although the space limitations of this evidence submission prevent a thorough consideration of this issue, it remains a fairly distant prospect.

6. There are, however, several specific areas in which Scottish independence either would or could have an affect on RUK foreign policy. The first area is a given, namely that of RUK-Scotland bilateral relations. Given the shared island territory and a likely very porous border between RUK and Scotland, independence would create a new and very important bilateral relationship. Thankfully there are currently inter-governmental and inter-institutional mechanisms upon which such a relationship could be constructed. The first of these would be the British-Irish Council (BIC), in which Scotland already has membership as a devolved administration. Scotland’s membership of the BIC would be amended to equal status with RUK and the Republic of Ireland. There are some specific issues – the threat of cyber-crime, counter-terrorism, and serious organised crime – where close RUK-Scotland cooperation would be desirable. Information-sharing and even burden-sharing arrangements between the two states would be a sensible way of proceeding. Such dynamics only serve to underline the vital importance that any post-referendum negotiations are conducted in a politically amicable and productive manner. [8] I would encourage the Foreign Affairs Committee to discuss these issues with relevant police officers, civil servants, and ministers in the Republic of Ireland to develop a comparative perspective on how RUK-Scotland cooperation might develop.

7. The second area concerns RUK’s relationship to the EU. The impact of independence on RUK-EU relations is contentious and, given the existence of parallel hearings at the Scottish Affairs Committee, I will not dwell on it at great length. There is a line of argument, advanced by Patrick Layden [9] amongst others, that sees independence as raising the prospect of the UK’s relationship to the EU, including its various opt-outs and budget rebate, being placed on the diplomatic negotiating table in Brussels. I do not share this view and find it far more likely that RUK would simply continue the UK’s membership of the EU, with Scotland’s membership also continuing but as a new Member State as opposed to sub-national authority within a Member State. [10] Indeed one could argue that Scottish independence would be a positive given that the interests of Scotland and RUK, on most issues arising in Brussels, would be in alignment. However, the possibility of RUK’s relationship to the EU being called into question cannot be ruled out.

8. The third area of concern is how independence might impact RUK’s relationship with the US. While the special relationship with the US is often oversold and mislabelled, this is not the case in the realm of intelligence cooperation. [11] RUK and Scotland would need to establish a close relationship in terms of intelligence sharing and, where necessary, joint operations in counter-terrorism, serious organised crime, cyber-crime, and homeland security more broadly. There are several models that might be employed to foster such cooperation. The Foreign Affairs Committee should urge the FCO and the UK Intelligence Services to begin discussions with their US partners about how Washington, DC would react to Scottish independence. The operating assumption, one would assume, is that the US would want to ensure that the security of the British Isles remained as robust as possible. What remains unclear is the extent to which intelligence sharing arrangements between the UK/US/Canada/Australia/New Zealand would have to be revisited as a result of Scottish independence. This is not an area where discussions should be left until 2014. Forward planning is essential.

9. Given the space limitations of this evidence submission, and a parallel inquiry by the Scottish Affairs Committee, I will refrain from commenting on the impact of independence on defence affairs and the existing UK military structure. It would be the responsibility of the UK government, in negotiations with Scotland during 2014-16, to ensure that any transfer of kit and equipment to Scotland was done in a way that did not create gaps in RUK’s defence capabilities.

10. Moving on from the specific issues of foreign policy that an independent Scotland might raise, the committee has posed questions about the impact of independence on the operations and organisation of the FCO . The first issue to be tackled is how the UK diplomatic service would be apportioned in the event of independence. The buildings and estates of the FCO are public/state property. However, it seems highly improbable that the UK government, during 2014-16, would agree to the breakup of the diplomatic service and the selling off of certain FCO properties so that assets could be literally apportioned between RUK and Scotland. More likely is that the UK diplomatic service remains intact and at the service of RUK. Of course, there may be members of the FCO who wish to leave and join the ranks of a new Scottish diplomatic service. But it seems highly probable that Scottish claims on a portion of the FCO will form part of a broader financial settlement to be negotiated over 2014-16. It is thus anticipated that the provision of consular support to British nationals abroad would remain largely unaffected as a direct result of independence. Citizens of a new Scottish state would, assuming Scotland as an EU Member State, continue to benefit from the UK’s diplomatic network through their right, as EU citizens, to receive assistance abroad from the consulate or embassy of any other EU member.

11. The promotion of RUK business abroad by the FCO/UKTI would inevitably be complicated. An independent Scotland would be a competitor for foreign direct investment and, with full powers over tax policy, Scotland could lower corporation tax in an effort to make itself a more attractive investment climate. The FCO and UKTI would simply have to adapt to this new reality and, in a sense, Scotland would represent just one more competitor, no more and no less. The possibility remains, however, that in exchange for the continued use of the pound sterling, Scotland and RUK enter into some form of concordat on relative rates of corporation tax in their respective jurisdictions. Either way, Scotland would be a competitor for inward investment but not in a way that would cause irresolvable problems for the FCO and/or UKTI.

12. With respect to the National Security Strategy (NSS) the impact of an independent Scotland would most likely be felt in terms of the content of part 3 of the NSS ("Risks to our Security"). [12] Among the key threats identified were, in tier one: international terrorism, cyber-attacks, major accidents/natural disasters, and an international military crisis that draws in the UK. In tier two: an attack on the UK using chemical/biological/radiological/nuclear weapons, a significant increase in organised crime, and severe disruption to satellite information. And in tier three: a large-scale conventional attack on the UK, a significant increase in terrorists/organised criminals/illegal immigrants/illicit goods trying to cross the UK border, disruption to oil or gas supplies, a major release of radioactive material from a civil nuclear site, a conventional attack on a NATO or EU partner, an attack on a UK overseas territory, and short-to-medium run disruptions to international supplies of resources.

13. Not all of these potential threats are significantly complicated or impacted by Scottish independence, but some are. Once again the issues of counter-terrorism, cyber-attacks, serious organised crime, and immigration will require close institutional cooperation between RUK and Scotland, if the priorities of the NSS are to be pursued effectively. Put simply, should RUK and Scotland retain an open and porous border then the only way for RUK to confidently ensure the security of its sovereign territory is to have absolute confidence in Scotland’s ability to secure its sovereign territory. A range of institutional mechanisms might be considered in these areas. Some form of joint training and joint operational practice in counter-terrorism, policing, and cyber-security ought also to be considered given the priorities identified in the NSS, namely ‘to protect operational counter-terrorist capabilities in intelligence and policing, and the necessary technologies to secure them … [and to] develop a transformative programme for cyber security’. Furthermore, the NSS commitment to ‘focus cross-government effort on natural hazards … [and to] focus and integrate diplomatic, intelligence, defence and other capabilities on preventing the threat of international military crises’ [13] might be pursued in close cooperation with Scotland. Finally, some form of joint regulatory structure and joint crisis management mechanism might be developed in the civil nuclear power arena. RUK may well take an interest in ensuring the safety of, and effective crisis management mechanisms at, Hunterston B and Torness.

14. The Foreign Affairs Committee should do all it can to persuade the National Security Adviser to begin serious consideration of the type of institutional mechanisms that would be required to manage the RUK-Scotland bilateral in such a way as to ensure that the priorities of the NSS can be pursued effectively and robustly. The failure of the NSS to make any reference to the challenge/risk posed by Scottish independence represents a worrying sign that must be corrected.

15. The committee has also called for views … on the key factors that could influence the basic shape and scope of a separate Scottish foreign policy. This is a particularly important question as Scotland begins to seriously debate what independence might actually mean. This is the foundational question that, in many respects, must logically precede any discussion of the size and shape of a putative Scottish armed force. I will refrain from any in-depth consideration of the force structure of a potential Scottish armed force as this is subject to other Parliamentary inquiries.

16. Given that Scotland would be a relatively small and open economy it seems reasonable to suggest that it would share the broad interest of RUK in a liberal and open global trade system as the first plank of its foreign policy. A second plank of Scottish foreign policy would almost certainly be its membership of the EU. A third plank of Scottish foreign policy would likely be a targeted international development programme, building on its existing efforts in Sub-Saharan Africa, Southeast Asia, and the Middle East.

17. Beyond the commercial, EU, and development aspects of foreign policy Scotland would have several options in the defence and military realm. Within International Relations scholarship the concept of a ‘Small Power’ may be of some use in identifying the broad contours of a Scottish foreign policy. [14] Small Powers ‘carve out a niche by displaying a narrow and specific range of foreign policy behavioural patterns. Small powers are actors that mobilize their military, diplomatic and economic resources in the service of their security, autonomy, wealth and prestige’. [15] According to this literature we might expect Scotland: to recognise that its security would rely on a network of alliances and seek to cultivate and preserve such alliances; to be forced to adopt a set of clear and limited priorities that it would seek to externalise and champion; to engage in concerted efforts to pursue shared interests through formal international institutions and/or international law; and to approach the world in a relatively risk-averse manner.

18. An alternative possibility, in the defence and military realm, remains that Scotland would adopt an outlook akin to Ireland’s neutrality with some contribution to UN peacekeeping operations. Much will hinge on political decisions about the size of the Scottish defence budget. A defence budget at the high-end of NATO proportional spending (i.e. 2.2-2.5% of GDP) could support a foreign and security policy that a defence budget at the low-end (i.e. 1% of GDP) simply could not. Given that Scotland will have to develop its military capabilities in the face of significant initial costs and challenges it might be reasonable to expect, in the short-to-medium term, a Scotland focused on building its military and countering homeland security threats. Such a focus could give way in the medium-to-long term to a foreign policy committed to contributing to EU/NATO missions focused on post-conflict reconstruction, peacekeeping, and/or humanitarian interventions (under responsibility to protect).

19. The activity described above would require some form of diplomatic service. While not wishing to enter into discussion of what that diplomatic service might look like, and how it might be staffed, it would require the training of a first generation of Scottish diplomats and the establishment of a network of missions and embassies abroad. Given the UK’s willingness to share embassies with Canada in an attempt to rationalise and cost-save [16] it seems reasonable to suggest that, at least in the interim, Scottish diplomatic teams in key capitals might share space with their RUK counterparts.

Concluding remarks

20. Scottish independence need not represent an existential crisis for RUK foreign policy. The strong likelihood is that a smaller RUK retains the international standing, memberships, rights, and priorities of the UK, with Scotland free to develop a distinctive foreign policy of its own. It will be crucial, however, that RUK-Scotland relations are carefully managed, with appropriately robust institutional coordination mechanisms, and that a climate of political trust is fostered between London and Edinburgh. The security of the British Isles rests on the ability of civil servants and politicians north and south of the border to carefully manage this potentially complex development.

26 September 2012

[1] M. Shaw, International Law 6 th ed. (Cambridge: Cambridge University Press, 2008), p. 958; M. Craven, ‘The Problem of State Succession and the Identity of States under International Law’, European Journal of International Law 9 (1998).

[2] M. Happold, ‘Independence: in or out of Europe? An Independent Scotland and the European Union’, International and Comparative Law Quarterly 49 (2000), p. 17.

[3] Ibid.

[4] For example, India was considered the continuation of British India, with Pakistan regarded as a new state and having to apply for admission. See Shaw, International Law , p. 985. Such a scenario can be contrasted with dissolution, in which the new states that emerge all have to apply for membership as happened with the Czech Republic and Slovakia.

[5] Happold, ‘Independence’, p. 28.

[6] For example, the Federal Republic of Yugoslavia claimed to the continuation of the Socialist Federal Republic of Yugoslavia (SFRY) but this was rejected both by the other states that emerged from the SFRY and the international community. This can be contrasted with the claim of the Russian Federation to be the continuation of the USSR. If we run a thought experiment for a moment and imagine the reaction of the international community should Scotland try to claim its right as a continuing state, it is not fanciful to suggest that such a move would be greeted with deep scepticism.

[7] It has been argued that nationalist groups can learn from each other and feed on each others successes. See I. Sanchez-Cuenca, ‘The Dynamics of Nationalist Terrorism: ETA and the IRA’, Terrorism and Political Violence , 19 (2007), pp. 289-306.

[8] There would be a shared interest on the part of RUK and Scotland that no weakness emerged in the security architecture of their shared island. One can already begin to see how issue linkages would be possible during the 2014-16 negotiation period during which the details of independence would be agreed.

[9] Patrick Layden, Oral evidence to the House of Commons Select Committee on Scottish Affairs, 16 May 2012. Available at http://www.publications.parliament.uk/pa/cm201213/cmselect/cmscotaf/139/120516.htm .

[10] While not wishing to dwell on this rather complex issue here, my view on RUK’s and Scotland’s status within the EU rests on the primacy of EU citizenship and the reality that any political decision taken by the other EU Member States would be in ‘the shadow’ of the Court of Justice of the European Union, a body that has taken most opportunities presented to it to expand the nature and scope of EU citizenship law.

[11] The most recent of a long body of literature on this aspect of the special relationship is A. Svendsen, Intelligence Cooperation and the War on Terror: Anglo-American Security Relations after 9/11 (London: Routledge, 2009).

[12] HM Government, A Strong Britain in an Age of Uncertainty: the National Security Strategy , Cm. 7953 (London: HMSO, 2010), pp. 24-31.

[13] Ibid., p. 34.

[14] See, for example, A. Toje, ‘The European Union as a Small Power’, Journal of Common Market Studies 49 (2011).

[15] Ibid., pp. 46-7.

[16] ‘UK to share embassy premises with “first cousins” Canada’, The Guardian , 24 September 2012. Available at http://www.guardian.co.uk/global/2012/sep/24/diplomacy-embassy-buildings-uk-canada?intcmp=239 .

Prepared 17th October 2012