In the first of a series of exclusive articles for Vote No Borders, expert in constitutional law Professor Adam Tomkins looks in depth at the realities of a Yes vote in September. Adam Tomkins teaches constitutional law at the University of Glasgow and writes here in a personal capacity. Follow him on twitter @ProfTomkins.
What would independence mean?
The question Scots face on 18 September is “Should Scotland be an independent country?” If there were to be a Yes vote, what would this mean? What is it, to be an independent country in the interdependent world of the twenty-first century?
What independence does not mean is clearer than what it does. It does not mean isolation, splendid or otherwise. An independent Scotland would not turn its back on the world or on her neighbours but would, from Day 1, seek to forge fresh international relations, just as the United Kingdom has been developing them for generations. An independent Scotland would seek accession to the European Union. Clearly, she would join the UN and its myriad satellite bodies (UNESCO, the World Health Organisation, the International Labour Organisation, and the like). Scotland would join the Council of Europe and would sign up to the European Convention on Human Rights. And, in a U-turn on their former position the SNP have said that they would seek membership of the great western defence union, NATO, notwithstanding that NATO is a nuclear alliance and the SNP have pledged that an independent Scotland would be free of nuclear weapons.
In each of these endeavours, though, an independent Scotland would be starting afresh and acting alone. The link with the rest of the United Kingdom would be broken. London, with its unrivalled network of global diplomatic and trade links, would no longer act in Scotland’s interests but only in those of the much reduced and diminished “rest of the UK”, a rump of a country with neither a name nor a flag. If Scotland votes Yes that rump of a country would be profoundly shaken. Few in England expect Scotland to leave and after the shock of any Yes vote there would follow much hurt and anger, not least because the future of the Union lies exclusively in Scottish hands. The English, Welsh and Northern Irish have no vote in this affair.
If Scotland votes Yes she leaves the United Kingdom. As a matter of law the “rest of the United Kingdom” would continue and would inherit the legal rights, obligations and liabilities of the UK now. The UK Parliament would become the Parliament of the rest of the UK. The UK Supreme Court would become the Supreme Court of the rest of the UK, and so on. Likewise internationally, the rUK would inherit the UK’s membership of the UN, the EU, NATO, etc. The UK’s public institutions, which operate now in the interests of everyone in the UK, would become the public institutions of the rest of the UK, operating in the interests only of people in England, Wales and Northern Ireland: this would be as true for the BBC and the Bank of England as it would be for the Security and Secret Intelligence Services and HM Armed Forces.
With regard to each of these institutions, and the essential public services they provide, Scotland would have to start over: Scotland would need security, intelligence and defence forces of her own; and would have to consider whether and, if so, how to establish her own public broadcasting service. Leaving the UK would mean leaving the UK’s institutions and services. It would also mean leaving the UK pound. The currency is not Scotland’s to keep, any more than it would be England’s to keep in the event that England voted unilaterally to leave the Union with the rest of the UK. The pound is the UK’s currency and, like the UK’s public institutions, it would become the currency of the rest of the UK in the event that Scotland decided to leave the UK and become an independent country.
Not that you would know this from reading the Scottish Government’s literature on independence. The independence white paper, Scotland’s Future, is strewn with error on these matters. It states that “The pound is Scotland’s currency just as much as it is the rest of the UK’s”. Wrong. It states that “Scotland would be entitled to a fair share of the UK’s extensive overseas properties” which an independent Scotland could use as the basis of its diplomatic network. Again, entirely without foundation in law. Similar errors can be found in what the white paper has to say about defence, security and intelligence.
What’s going on here? Why is the most important document the Scottish Government have published undermined by a basic ignorance of international law? The short answer is that the SNP must have failed to take legal advice (or, if they did take it, they must have failed to understand it). But the much more interesting answer is that the Nationalists’ errors in understanding the basics of what independence would mean are a reflection of their tactical ambivalence about it. Independence is and always has been a minority pursuit in Scotland. In order to garner a majority come polling day those who want independence have had to de-risk it as much as possible. Don’t worry, Scotland: we’d keep the Queen, and the pound, and our EU membership, and our NATO allies, and our international representation, etc.
“Seamless transition” is the dominant refrain of the independence white paper. As Alex Salmond wrote in 2012, “Much of what Scotland will be like the day after independence will be similar to the day before: people will go to work, pensions and benefits will be collected, children will go out to play and life will be as normal”. So blithely reassuring have the Nationalists tried to be about independence that they have lost sight of the myriad legal and political realities of what it would actually amount to. The result is that we are going into this referendum not knowing what our currency would be were we to vote Yes, not knowing whether we’d be in or out of the EU, not knowing whether we’d be in or out of NATO and knowing nothing about how or through what means an independent Scotland would seek to protect its citizens either at home or abroad.
What would independence mean? It would mean placing each of these matters in jeopardy. The question on 18 September is: is it worth the risk? My answer: no thanks.