Scottish independence: constitutional implications of the referendum - Constitution Committee Contents

CHAPTER 5: Summary of conclusions and recommendations

Principles governing independence

118.  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 state. (Paragraph 16)

119.  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. (Paragraph 17)

120.  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. (Paragraph 18)

121.  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. (Paragraph 28)

Constitutional implications for the UK state

122.  It would be important for any independence negotiations to have a clear legal basis. The evidence we received suggested that the UK Government are likely already to possess legal power to negotiate, but the Scottish Government may not. In the event of a "yes" vote, this should be put beyond doubt. In that event, soon after any such vote, a bill should be introduced to the UK Parliament which would establish the negotiating team for the rest of the UK and devolve power to the Scottish Parliament to establish a negotiating team for Scotland. (Paragraph 37)

123.  UK legislation to facilitate Scottish secession from the Union may not need to be extensive. Its primary purpose would be to recognise independence for Scotland and the end of the UK Parliament's legislative competence over Scotland. However, it is likely that extensive consequential legislation, and legislation to implement any agreement reached between the two governments, would be necessary. (Paragraph 44)

124.  The UK Government's apparent position—that they would cease to represent the interests of Scotland immediately after a "yes" vote was returned—may create a constitutional limbo for Scotland. Scotland would still be part of the United Kingdom, but the UK Government would cease to act in Scotland's interests. (Paragraph 56)

125.  On international representation, we recommend that 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. (Paragraph 57)

126.  On domestic governance, we recommend that, if Scotland votes for independence, the UK and Scottish Governments should agree how any transfer of powers prior to independence day should take place. In addition, an arrangement should operate between the referendum and independence day whereby the UK Government take long-term decisions on reserved matters relating primarily or solely to Scotland only after consulting the Scottish Government. (Paragraph 58)

127.  In the event of a "yes" vote, the status of MPs for Scottish constituencies in the period between the referendum and independence day should be resolved quickly, and certainly before the 2015 general election. (Paragraph 63)

128.  The UK Government should make it clear as soon as possible after a "yes" vote when they propose that Scottish MPs would be removed from the House of Commons. MPs for Scottish constituencies should cease to sit in the House of Commons from the date on which Scotland secedes from the United Kingdom. Legislation to this effect would be necessary. The Government should provide sufficient parliamentary time to enable the matter to be clearly resolved. (Paragraph 72)

129.  As the law now stands, if Scotland were to leave the United Kingdom, members of the House of Lords who live in Scotland would have to be resident, ordinarily resident and domiciled in the rest of the UK for the purposes of certain taxes. If they did not want to pay tax in the rest of the UK, they would have to retire from the House. (Paragraph 76)

130.  In the event of independence it would need to be decided whether peers of Scotland should be entitled to continue to be members of the House of Lords on the basis of a Scottish peerage alone. (Paragraph 78)

131.  If an independent Scotland were to have its own supreme court, justices with experience of Scots law would no longer be appointed to the UK Supreme Court. However, given their UK-wide remit, serving justices with this experience should continue to sit on the Supreme Court until their scheduled date of retirement. (Paragraph 84)


132.  The best approach would be for the negotiating team to be composed solely of representatives of the UK Government. The team should be small and able to act quickly and with authority. It would also be important for it to be held fully to account by Parliament through established means. (Paragraph 97)

133.  It would be desirable for there to be broad agreement on the scope and aims of the negotiations, and for any change of government in 2015 to cause as little disruption as possible. It would be important for the official opposition at Westminster to be fully consulted during negotiations. Similarly, given the interests of the devolved executives in Northern Ireland and Wales, it would be important to keep them closely involved. (Paragraph 98)

134.  We recommend that MPs representing Scottish constituencies should not be on the negotiating team for the rest of the UK. Their duty as representatives of their constituents in Scotland would conflict with the objective of that negotiating team: to secure the best arrangements for England, Northern Ireland and Wales. (Paragraph 102)

135.  We conclude that MPs for Scottish constituencies should not be involved in holding the negotiators for the rest of the UK to account, nor in voting on any measure which ratifies the outcome of the negotiations. In the event of a "yes" vote, we recommend that the Government put before Parliament a proposal that would put this matter beyond doubt before the 2015 election. (Paragraph 109)

136.  The Scottish Government have proposed a timetable of completing negotiations on independence by March 2016. There is no constitutional principle by which that timetable would bind the rest of the UK. The UK Government should not put the interests of the rest of the UK at risk by attempting to stick to that timetable. Any negotiations should take as long as necessary; they should not be foreshortened in order to meet a deadline set by one party to the negotiations. (Paragraph 117)

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