House of Commons Foreign Affairs Committee Foreign policy considerations for the UK and Scotland in the event of Scotland becoming an independent country Sixth Report of Session 2012–13 Report, together with formal minutes, oral and written evidence Ordered by the House of Commons to be printed 23 April 2013 HC 643 Published on 1 May 2013 by authority of the House of Commons London: The Stationery Office Limited £20.00 The Foreign Affairs Committee The Foreign Affairs Committee is appointed by the House of Commons to examine the expenditure, administration, and policy of the Foreign and Commonwealth Office and its associated agencies. Current membership Richard Ottaway (Conservative, Croydon South) (Chair) Rt Hon Bob Ainsworth (Labour, Coventry North East) Mr John Baron (Conservative, Basildon and Billericay) Rt Hon Sir Menzies Campbell (Liberal Democrat, North East Fife) Rt Hon Ann Clwyd (Labour, Cynon Valley) Mike Gapes (Labour/Co-op, Ilford South) Mark Hendrick (Labour/Co-op, Preston) Andrew Rosindell (Conservative, Romford) Mr Frank Roy (Labour, Motherwell and Wishaw) Rt Hon Sir John Stanley (Conservative, Tonbridge and Malling) Rory Stewart (Conservative, Penrith and The Border) The following Members were also members of the Committee during the parliament: Emma Reynolds (Labour, Wolverhampton North East) Mr Dave Watts (Labour, St Helens North) Powers The Committee is one of the departmental select committees, the powers of which are set out in House of Commons Standing Orders, principally in SO No 152. These are available on the Internet via www.parliament.uk. Publication The Reports and evidence of the Committee are published by The Stationery Office by Order of the House. All publications of the Committee (including news items) are on the internet at www.parliament.uk/facom. A list of Reports of the Committee in the present Parliament is at the front of this volume. Committee staff The current staff of the Committee are Kenneth Fox (Clerk), Peter McGrath (Second Clerk), Adèle Brown (Senior Committee Specialist), Dr Brigid Fowler (Committee Specialist), Zoe Oliver-Watts (Senior Committee Specialist), Louise Glen (Senior Committee Assistant), Vanessa Hallinan (Committee Assistant), and Alex Paterson (Media Officer). Contacts All correspondence should be addressed to the Clerk of the Foreign Affairs Committee, House of Commons, London SW1A 0AA. The telephone number for general enquiries is 020 7219 6105; the Committee’s email address is [email protected] Sixth Report of Session 2012-13 1 Contents Report Page Summary 3 Conclusions and recommendations 5 1 Introduction 9 2 Scotland and the RUK: who would inherit what and who would decide? 11 Why does it matter? 11 Multilateral and bilateral treaties 11 Conceptualising the break-up 12 Scottish and UK Government views on state succession 13 Succession disputes: the importance of international practice and precedent15 What scenario would the international community support? 15 Membership of key international organisations 17 The United Nations 17 Russia: a relevant Security Council precedent? 18 NATO 19 Scotland and the EU 21 Would Scotland retain the UK’s opt-outs and at what cost? 26 3 International influence in the event of independence: more or less? 29 The RUK 29 ‘Hard’ power attributes 29 The impact on the UK’s international standing 30 RUK’s diplomatic service 32 In the EU: a reduced RUK influence? 33 Scotland 35 Would independence enhance Scotland’s global role? 35 Starting afresh: creating diplomatic clout 37 An industry perspective on the FCO’s support 37 In the EU: does a direct voice equate to influence? 41 4 Characterising a future RUK-Scotland bilateral relationship 44 The foreign policy posture of the RUK’s closest neighbour 44 Co-operation or competition? 44 Nuclear weapons 47 Dependency 50 Security and intelligence 50 Continuity and constraints 56 5 Concluding remarks and observations 58 Annex: Timeline of key referendum dates 59 2 Sixth Report of Session 2012-13 Formal Minutes 61 Witnesses 62 List of printed written evidence 63 Sixth Report of Session 2012-13 3 Summary On 18 September 2014, the people of Scotland will decide whether they wish to leave the UK and create an independent country. The foreign policy implications for the UK in the event of a ‘Yes’ vote in the referendum are potentially wide-ranging. Initially, much would depend upon which entity, Scotland or the remainder of the UK (the RUK), would inherit particular treaty rights, obligations and membership of key international organisations. It is not in the gift of either Scottish or UK politicians to determine this unilaterally. In the absence of an agreement between the RUK and Scotland on this matter, precedent, practice and the views of the international community would influence the outcome. A process which afforded both the RUK and Scotland co-equal status (which is favoured by the Scottish Government) may appear to have the benefit of equity, but evidence suggests that in practice a number of adverse political and technical consequences could arise under the ‘separation’ model and it would lead to a degree of legal uncertainty that the international community would not tolerate. Witnesses were strongly of the view that precedent and principle would favour the RUK as the continuing state as had happened in previous, similar situations. As a result, the RUK would inherit the vast majority of international treaty rights and obligations and would be likely to retain its position of power in key international organisations such as the United Nations, European Union and NATO. In contrast, Scotland would start anew at an international level, losing many of the benefits that derive from being part of the UK. Evidence suggests that the Scottish Government is largely alone in arguing that Scotland’s accession would automatically take place from within the EU. It is for the EU itself to determine in accordance with its regulations whether and how Scotland would become a member. There may be pragmatic reasons for supporting some form of fast track process for Scotland’s EU accession but this does not mean that it would be straightforward and Scotland may have to make trade-offs to secure the unanimous support that it would require. Although the Scottish Government maintains that an independent Scotland, negotiating membership terms from within the EU, would inherit the opt-outs and special status that the UK enjoys on the EU budget, Schengen and the Euro, it has acknowledged that it does not have legal advice to support this view. If Scotland continued to try to secure opt-outs and special treatment, it could find its path to membership more difficult. Although the RUK would retain a strong claim on the UK’s international positions of power, any compromise of its nuclear capabilities as a result of Scotland becoming independent could lead to changes in its key bilateral relationships as well as questions being raised about the RUK’s role in key international political and security organisations, including the UN Security Council. There is also reason to believe that the RUK would suffer reputational damage as a result of Scotland becoming independent, although it is difficult to measure the impact this would have on the Foreign and Commonwealth Office (FCO), or more generally the UK’s ability to project soft power. In the event of Scotland becoming an independent country, its voice on the international stage would be more distinct but this would not necessarily translate into a greater ability 4 Sixth Report of Session 2012-13 to shape the international or EU agenda to Scotland’s needs, particularly in light of the external constraints that Scotland, as a small state, would face. Significant costs would also be incurred by Scotland in attempting to replicate the quality of the diplomatic and consular support currently provided by the FCO and UKTI. Although the Scottish Government is keen to forge ahead with a different type of foreign policy, a position most clearly exemplified by its stance on nuclear weapons, evidence suggests that in many other respects, the foreign policies of Scotland and the RUK would converge. In some key areas, notably in the field of security and intelligence, there is a strong likelihood that Scotland would remain dependent upon the RUK for support, effectively constraining its foreign policy choices. While bilateral co-operation between the RUK and Scotland would be the norm on many issues, competition could overtake this aspiration in a number of key foreign policy areas, and like any bilateral relationship between sovereign states, co-operation could not be taken for granted, particularly where competing interests or priorities emerged. More generally, in terms of the overall debate, we are concerned that seemingly unfounded assertions and initial negotiating positions are being presented as incontrovertible facts and that legal positions are being advocated without the benefit of official legal advice. There is a need for more clarity and more candour about what Scots would lose and what the Scottish Government could realistically deliver in foreign policy terms with the resources available to it. As the Edinburgh Agreement makes clear, Scots will hold their destiny in their own hands in September 2014. It is Scotland’s decision to make, nobody else’s. The Scottish people do, however, have a right to have the full facts, not just aspirational policies, at their disposal before they make that decision. Sixth Report of Session 2012-13 5 Conclusions and recommendations Who would inherit what? 1. Despite some proclamations to the contrary, it is not in the gift of either Scottish or UK politicians to determine unilaterally which state would inherit particular international rights and obligations in the event of Scottish independence. A process which afforded both the RUK and Scotland co-equal status may at first glance seem to have the benefit of equity, but evidence suggests that in practice it would be likely to lead to a degree of legal uncertainty that the international community would not tolerate.