CHAPTER 2: principles governing independence |
The UK as the continuator state
10. A central question about the constitutional
position of the rest of the United Kingdom after a "yes"
vote is whether it would continue as the same state. In other
words, would the United Kingdom retain the statehood of the UK,
with Scotland becoming a new breakaway state? If so, the rest
of the UK would technically become the "continuator state"
and Scotland the "successor state". Alternatively, would
the remaining part of the United Kingdom and Scotland become two
11. A great deal flows from this question. Were
the rest of the UK to be the continuator state, it would retain
all of the public institutions of the UK.
It would retain the treaty obligations and memberships of international
organisations of the existing UK. For example, the rest of the
UK would continue as a member of the European Union (with the
various opt-outs that the UK now has), the United Nations (including
the permanent seat on its Security Council) and NATO. Such memberships
would automatically continue; they would not have to be applied
for. Were the rest of the UK to be the continuator state it would
significantly shape negotiations after a "yes" vote.
12. A comprehensive legal opinion by Professor
James Crawford, Whewell Professor of International Law at the
University of Cambridge, and Professor Alan Boyle, Professor of
Public International Law at the University of Edinburgh, on the
status of Scotland and the rest of the UK in international law
was annexed to the Scotland analysis paper on Devolution
and the implications of Scottish independence.
We are not aware of any serious objection to their analysis of
the principles of public international law that would apply to
13. The UK Government's position follows this
legal opinion: that the rest of the UK would become the continuator
state and that Scotland would become a new, successor state. The
Advocate General for Scotland, Lord Wallace of Tankerness QC,
set out four main reasons for this:
- First, the majority of international
precedentsfrom Russia being the continuator state on the
break-up of the Soviet Union to Sudan continuing after South Sudan
became a new statepoint to the rest of the UK being the
continuator state. The most directly relevant precedent is that
Great Britain and Northern Ireland continued as the UK after the
secession of the Irish Free State in 1922.
- Secondly, the rest of the UK would retain the
greater share of the population (92%) and territory (68%) of the
existing UK. These factors are given weight in public international
- Thirdly, the likelihood is that the majority
of other states would recognise the rest of the UK as the continuator
state and recognise Scotland as a new state.
- Fourthly, where the alternative of two new states
being created has appliedfor example, when Czechoslovakia
split into the Czech Republic and Slovakiathat has usually
been by mutual agreement. The UK Government would not agree to
the UK becoming a new state, so this alternative could not apply.
It is relevant that the referendum is taking place only in Scotland:
it is not a UK-wide referendum on whether the UK should split
into two new states.
14. The majority of our witnesses agreed with
this analysis. Professor
Alan Boyle said that it was the "only ... credible view".
Professor Michael Keating, Chair in Scottish Politics at the University
of Aberdeen, referred to the "broad acceptance that the UK
would be the continuing state."
Professor Stephen Tierney, Professor of Constitutional Theory
at the University of Edinburgh, agreed,
as did commentators David Torrance and Mandy Rhodes.
The commentator Alex Massie said that it appeared "to be
the common-sense attitude. It will be the view that will be taken
by the rest of the world. If you vote to leave a club, the club
15. In her covering letter to the Scottish Government's
written evidence the Deputy First Minister, Nicola Sturgeon MSP,
appeared to question the proposition that the rest of the UK would
be the continuator state. She described it as an "assertion
made by the UK" and quoted a passage from Professors Crawford
and Boyle's advice in which they refer to the position in international
law depending on arrangements made between the two governments
and the position of other states. Having said that, the Scottish
Government in their written evidence did not argue explicitly
against the principle of the UK being the continuator state and
we are not aware of them questioning it in other forums. David
Torrance said the Scottish Government "have not taken an
unequivocal position ... They appear to cast doubt on the rest
of the United Kingdom being the [continuator] state, but they
have not said what they think would happen."
As so much flows from this it is incumbent on those who question
whether the UK would be the continuator state to set out their
analysis of what the alternative position would be.
16. The overwhelming view in the evidence
we received was that after a "yes" vote the rest of
the United Kingdom would continue as the same state: it would
be the continuator state. Scotland would become a new, successor
17. This would be the case because relevant
precedents support that position; it would be consistent with
the rest of the UK having the majority of the territory and population
of the existing UK; and it would reflect the likely opinion of
other countries. No realistic alternative case has been made.
18. The fact that the rest of the UK would
be the continuator state shapes discussion on the implications
of independence; this report proceeds on that basis.
Assets, institutions and liabilities
19. There are clear legal principles governing
the position of institutions, and the division of assets and liabilities
between an independent Scotland and the rest of the United Kingdom.
Where legal principles do not apply, matters are subject to political
negotiations. These principles, which we set out in general terms,
would have to be applied to specific instancessuch as North
Sea oil and the Faslane naval base.
20. It is a legal principle that, as the United
Kingdom would be the continuator state, institutions of the UK
would remain with that state.
For example, Parliament, the UK Supreme Court, the Bank of England
and the BBC wouldas UK institutionsremain institutions
of the rest of the UK. If an independent Scotland wished to continue
membership of, or form a partnership in, any UK institution, that
would be for the rest of the UK to consider as part of negotiations.
There is no legal right for a successor state to share the institutions
of the state from which it secedes.
21. The key principle governing the apportionment
of assets and liabilities would be that they would be shared equitably
between the continuator and the successor states. It is a legal
principle that fixed or immovable assets (such as government or
would automatically become assets of the state in which they are
located. Other, moveable assets (such as military equipment)
would be subject to apportionment through negotiationswith
the only applicable legal principle being that the apportionment
should be equitable. Liabilities would be similarly subject to
apportionment through negotiations.
22. The Scottish Government told us that fixed
assets in Scotland would become Scottish on independence, whereas
all assets in the rest of the UK would be subject to negotiations.
This was not borne out by other evidence we heard. We were told
that fixed assets would not be negotiated, but non-fixed assets
would, wherever they are situated.
Similarly, the Scottish Government's claim to continued use (or
the apportionment) of overseas property was questioned.
We were told that the overseas property of the United Kingdom
would remain the property of the rest of the UK.
This is also the clear view of the UK Government.
23. Given the close integration of Scotland and
the rest of the United Kingdom, determining exactly what would
be an equitable apportionment of assets would not be easy. An
indication of the complexity of the matter was given in the Scotland
analysis paper on Defence, in which it was noted, for
example, that "An independent Scottish state could not simply
co-opt existing units that are primarily recruited or based in
Scotland, as these are an integral part of the UK Armed Forces";
and "While many military personnel and capabilities are located
in Scotland, these do not operate in isolation;
on close integration with other capabilities, services and infrastructure
spread across the UK".
24. Apportioning liabilities is likely to be
equally complex. The UK Government's first Scotland analysis
paper found that there was no clear consensus on the allocation
of liabilities, but there were some general principles.
Professor Iain McLean, Professor of Politics at Nuffield College,
University of Oxford, described the three options for apportioning
liabilities equitably: a "historic share", gross domestic
product (GDP) and population.
25. The "historic share" option would
be problematic, as Professor McLean made clear:
"The Scottish Government say that they are
willing to accept a historic share of the UK's liabilities and
they choose a start date [of 1980] for that historic share that
happens, by strange coincidence, to be favourable to the political
position of the current Scottish Government. I think this is a
non-runner. The only base year possible for a historic share is
1707. The data are missing for the first 200 or 250 years of that
26. This leaves the population share or relative
GDP as realistic bases for negotiation. Population share would
be the easiest to calculate. It would mean that Scotland would
take on 8.4% of the United Kingdom's liabilities and be entitled
to the same proportion of non-fixed assets.
GDP share would be harder to calculate as it would depend on the
apportionment of North Sea oil.
This would need the accurate calculation of the income generated
by that resource, forecasts of which were downgraded in early
2014, and apportioning the assets and liabilities associated with
27. Plainly the UK and Scottish Governments would
need to agree a basis for apportioning assets and liabilities.
In order to facilitate fair apportionment of assets, a full inventory
would need to be compiled by the UK Government.
28. In the event of Scottish secession, institutions
of the UK would become institutions of the rest of the UK, as
the continuator state. Fixed assets would belong to the state
in which they are located. Other (non-fixed) assets and liabilities
would be apportioned equitably. The exact division would be a
matter for negotiations, and would be complicated.
8 The position of UK institutions is discussed further
in the next section. Back
February 2013, Annex A. Back
Q 29. These reasons summarise those in the Crawford/Boyle
We received written evidence to the contrary from the Campaign
for an English Parliament, the English Democrats and Ian Campbell,
a former diplomat. Back
Q 19. Back
Q 19. Back
Q 19. Back
Q 57. Back
Q 57. Back
Q 57. Back
This was elaborated on in a recent article by Rod MacLeod of Tods
Murray LLP: 'Whose Central Bank is it Anyway?', Edinburgh Law
Review, volume 18, pp 250-54. Back
Q 14; written evidence from the Law Society of Scotland. Back
Q 14. Back
Written evidence from the Scottish Government, paras 11-12. Back
Q 14. Back
Written evidence from the Scottish Government, para 14. Back
Written evidence from the Law Society of Scotland. Back
Scotland analysis: EU and international issues, para 2.16.
Scotland analysis: Defence, p 10 and para 1.85. Back
Scotland analysis: Devolution and the implications of Scottish
independence, p 57. Back
Q 14. 1980 was cited in the Scottish Government's white paper
as a possible base year: Scotland's Future: Your Guide to an
Independent Scotland, p 348. Back
Q 20. The Scottish Global Forum advocated using population
share in their written evidence. Back
Q 14. Back
'OPEC says North Sea oil output to hit new lows', The Daily
Telegraph, 12 February 2014. Back
Written evidence from Donald Shell, the Campaign for an English
Parliament and the Scottish Global Forum. Back