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)
Negotiations
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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