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SELECT COMMITTEE ON THE CONSTITUTION INQUIRY INTO SCOTTISH INDEPENDENCE: CONSTITUTIONAL IMPLICATIONS FOR THE REST OF THE UK Oral and written evidence Contents Professor Alan Boyle, University of Edinburgh—Written evidence ............................................... 3 Professor Alan Boyle, Professor of Public International Law, University of Edinburgh, Professor Michael Keating, Chair in Scottish Politics, University of Aberdeen, and Director of Scottish Centre on Constitutional Change, and Professor Stephen Tierney, Professor of Constitutional Theory, University of Edinburgh—Oral evidence (QQ16-26) .......................... 10 Dame Rosemary Butler AM - Presiding Officer, National Assembly for Wales—Written evidence ...................................................................................................................................................... 24 Campaign for an English Parliament—Written evidence ................................................................ 27 Campaign for an English Parliament—Supplementary written evidence ..................................... 34 Mr Ian Campbell CMG—Written evidence ....................................................................................... 37 Rt Hon. Alistair Carmichael MP and Rt Hon. Lord Wallace of Tankerness QC—Oral evidence (QQ27-44) ............................................................................................................................... 43 Mr Stewart Connell—Written evidence ............................................................................................ 57 Rt Hon. Lord Hope of Craighead KT and Professor Iain McLean, Professor of Politics at Nuffield College, University of Oxford—Oral evidence (QQ1-15)............................................. 59 Professor Michael Keating, Chair in Scottish Politics, University of Aberdeen, and Director of Scottish Centre on Constitutional Change, Professor Alan Boyle, Professor of Public International Law, University of Edinburgh and Professor Stephen Tierney, Professor of Constitutional Theory, University of Edinburgh—Oral evidence (QQ16-26) .......................... 74 The Rt Hon. the Lord Mackay of Clashfern KT—Written evidence ........................................... 75 Mr Alex Massie, journalist, commentator and regular columnist for the Spectator, Ms Mandy Rhodes, journalist and editor of Holyrood magazine, and Mr David Torrance, journalist, commentator and regular columnist for the Herald—Oral evidence (QQ45-65) .................... 77 Professor Iain McLean, Professor of Politics at Nuffield College, University of Oxford and Rt Hon. Lord Hope of Craighead KT—Oral evidence (QQ1-15) ..................................................... 93 Ms Mandy Rhodes, journalist and editor of Holyrood magazine, Mr Alex Massie, journalist, commentator and regular columnist for the Spectator and Mr David Torrance, journalist, commentator and regular columnist for the Herald—Oral evidence (QQ45-65) .................... 94 Scottish Global Forum—Written evidence ....................................................................................... 95 Scottish Government—Written evidence ....................................................................................... 101 Mr Donald Shell—Written evidence ................................................................................................. 106 The English Democrats—Written evidence .................................................................................... 111 The English Lobby—Written evidence ............................................................................................. 115 The Law Society of Scotland—Written evidence........................................................................... 119 Professor Stephen Tierney, Professor of Constitutional Theory, University of Edinburgh, Professor Alan Boyle, Professor of Public International Law, University of Edinburgh and Professor Michael Keating, Chair in Scottish Politics, University of Aberdeen, and Director of Scottish Centre on Constitutional Change—Oral evidence (QQ16-26) ................................. 128 Professor Stephen Tierney—Supplementary written evidence .................................................. 129 Mr David Torrance—Written evidence ........................................................................................... 140 Mr David Torrance, journalist, commentator and regular columnist for the Herald, Mr Alex Massie, journalist, commentator and regular columnist for the Spectator and Ms Mandy Rhodes, journalist and editor of Holyrood magazine—Oral evidence (QQ45-65) .................. 143 Rt Hon. Lord Wallace of Tankerness QC and Rt Hon. Alistair Carmichael MP—Oral evidence (QQ27-44) ............................................................................................................................. 144 Mr Barry Winetrobe—Written evidence ........................................................................................ 145 2 of 149 Professor Alan Boyle, University of Edinburgh—Written evidence Professor Alan Boyle, University of Edinburgh—Written evidence SCOTTISH INDEPENDENCE: CONSTITUTIONAL IMPLICATIONS FOR THE REST OF THE UK Submitted by Professor Alan Boyle, University of Edinburgh 1. What legal principles should govern negotiations for Scottish independence in the event of a “yes” vote? The only legal principle governing the negotiations is that both sides must negotiate in good faith. The Edinburgh Agreement so provides, and insofar as it may be relevant after independence, so does international law. Negotiations must therefore be ‘meaningful’ and 1 each side must be willing to listen and take account of the other’s interests.P0F P The object of negotiation is to provide the opportunity for accommodating any conflict of rights and interests which may exist; it does not compel the parties to reach agreement, or to accept the other side’s demands. They must not simply make demands or offer terms on a take-it-or-leave-it basis, but neither are they obliged to compromise vital interests. 2 The Supreme Court of Canada’s judgment in the Quebec Secession CaseP1F P addresses some of the issues of constitutional principle. The Court noted that Quebec could not dictate the terms of its secession to other parties and that “No negotiations could be effective if …secession is cast as an absolute legal entitlement” (p.267). However the Court also held that “The rights of other provinces and the federal government cannot deny the right of the government of Quebec to pursue secession, should a clear majority of the people of Quebec choose that goal, so long as in doing so, Quebec respects the rights of others.” (ibid). It would seem to follow that there is no legal obligation to respect the timetable for independence laid down unilaterally by the Scottish government. “Good faith” does not require agreement by a specific date nor does the Edinburgh Agreement. The principle of legitimate expectation probably has no relevance in this context, but even if it had the UK government appears to have made no commitment to any particular date and it may be unwise to do so given the complexity of some of the issues at stake. 2. Is the timetable of independence by 24 March 2016 realistic? It is impossible to say whether this timetable is realistic. The Irish negotiations in 1921 lasted six months. So did the negotiations on the breakup of Czechoslovakia. Many of the issues are the same: division of assets and liabilities, military bases, citizenship, whether to have a common travel area and so on. From that perspective the 18 months envisaged by the Scottish government may appear generous. But much will depend on what else the parties wish to agree on, and the Anglo-Scottish negotiations are potentially more complex in several respects. What deal will they try to reach on the currency and the banks? How will they handle Faslane and the nuclear 1 North Sea Continental Shelf Cases, ICJ Reports (1969) 46-7, paras 83-5; Icelandic Fisheries Cases, ICJ Reports (1974) 32 ff.; Gabčíkovo-Nagymaros Case, ICJ Reports (1997) 7, para 141. 2 Reference re Secession of Quebec [1998] 2 S.C.R 217. 3 of 149 Professor Alan Boyle, University of Edinburgh—Written evidence deterrent? Do they want a mutual defence agreement? Or an agreement on maritime boundaries? How will they handle negotiations with the EU? If the United Kingdom has responsibility for negotiating Scottish entry (as Sir David Edward argues) it will first have to reach agreement with the Scottish government on the terms that both parties would seek from the EU. None of these issues are straightforward. Negotiating against a short timetable would give the UK a considerable advantage, but whether the Scottish government would in fact stick to its timetable is unknown. Even if the UK and the Scottish representatives can reach agreement inter se, there remains the problem of negotiating entry into the EU. That might be easy – or it might not. No-one can tell. It took the UK two years to negotiate EEC entry in 1973, but only after two failed attempts dating back to 1963. Turkey applied to join the EEC in 1987 and is still not a member. Scotland is already part of the EU so it is unlike any other applicant state. That should make entry easy, but it is a political process and it is impossible to say how the politicians of 24 other states will respond. Every other EU member has a veto on new members. The signals from Brussels are mixed. No-one can plausibly be certain of the

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