House of Commons Scottish Affairs Committee The Referendum on Separation for Scotland, Session 2012–13 Oral and written evidence Oral evidence ordered by the House of Commons to be printed 16 and 23 May, 13, 20 and 27 June and 4 July 2012 Written evidence ordered by the House of Commons to be printed on 17 July 2012 HC 139-I Published on 7 August 2012 by authority of the House of Commons London: The Stationery Office Limited £16.50 The Scottish Affairs Committee The Scottish Affairs Committee is appointed by the House of Commons to examine the expenditure, administration, and policy of the Scotland Office (including (i) relations with the Scottish Parliament and (ii) administration and expenditure of the offices of the Advocate General for Scotland (but excluding individual cases and advice given within government by the Advocate General)). Current membership Mr Ian Davidson MP (Labour/Co-op, Glasgow South West) (Chair) Fiona Bruce MP (Conservative, Congleton) Mike Freer MP (Conservative, Finchley and Golders Green) Jim McGovern MP (Labour, Dundee West) Iain McKenzie MP (Labour, Inverclyde) David Mowat MP (Conservative, Warrington South) Pamela Nash MP (Labour, Airdrie and Shotts) Simon Reevell MP (Conservative, Dewsbury) Mr Alan Reid MP (Liberal Democrat, Argyll and Bute) Lindsay Roy MP (Labour, Glenrothes) Dr Eilidh Whiteford MP (Scottish National Party, Banff and Buchan) The following members were also members of the committee during the parliament: Cathy Jamieson MP (Labour/Co-op, Kilmarnock and Loudoun) Mark Menzies MP (Conservative, Fylde) Graeme Morrice MP (Labour, Livingston) Fiona O’Donnell MP (Labour, East Lothian) Julian Smith MP (Conservative, Skipton and Ripon) 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 press notices) are on the internet at www.parliament.uk/scotaffcom. A list of Reports of the Committee in the present Parliament is at the back of this volume. The Reports of the Committee, the formal minutes relating to that report, oral evidence taken and some or all written evidence are available in a printed volume. Additional written evidence may be published on the internet only. Committee staff The current staff of the Committee are Mr Eliot Wilson (Clerk), Duma Langton (Inquiry Manager), Hannah Lamb (Senior Committee Assistant) and Ravi Abhayaratne (Committee Support Assistant). Contacts All correspondence should be addressed to the Clerk of the Scottish Affairs Committee, House of Commons, 7 Millbank, London SW1P 3JA. The telephone number for general enquiries is 020 7219 6123; the Committee’s email address is [email protected] List of witnesses Wednesday 16 May 2012 Page Patrick Layden TD QC, Scottish Law Commission and Professor Andrew Scott, University of Edinburgh Ev 1 Kenny Jordan, CSEU Regional Secretary, Duncan McPhee, Unite Senior Shop Steward, BAE Systems, Scotstoun, Raymond Duguid, Unite Senior Shop Steward, Babcock Marine, Rosyth and Eric McLeod, GMB Senior Shop Steward, Babcock Marine, Rosyth Ev 14 Wednesday 23 May 2012 Professor Hew Strachan, Chichele Professor of the History of War, All Souls College, University of Oxford, Professor Malcolm Chalmers, Research Director, UK Defence Policy, Royal United Services Institute and Francis Tusa, Editor, Defence Analysis Ev19 Wednesday 13 June 2012 Nick Harvey MP, Minister of State for the Armed Forces and Peter Luff MP, Parliamentary Under-Secretary of State for Defence (Equipment, Support and Technology) Ev 47 Wednesday 20 June 2012 Lieutenant Colonel Stuart Crawford, former Lieutenant Colonel in the Royal Tank Regiment and Richard Marsh, Economist, 4-consulting Ev 65 Wednesday 27 June 2012 Jeremy Purvis, Reform Scotland Ev 88 Wednesday 4 July 2012 John McCormick, Electoral Commissioner with responsibility for Scotland, Lisa Klein, Director of Party and Election Finance, and Andy O’Neill, Head of Office Scotland, The Electoral Commission Ev 104 Professor Sarah Birch, Department of Government, University of Essex, and Professor Justin Fisher, Professor of Political Science, Brunel University Ev 120 List of written evidence 1 Daniel Kenealy, University of Edinburgh Ev 135 2 Church of Scotland Ev 138 3 Patrick Layden TD QC, Scottish Law Commission Ev 140 4 William Norton Ev 143 5 David Lonsdale, CBI Scotland Ev 145 cobber Pack: U PL: COE1 [SO] Processed: [06-08-2012 09:43] Job: 022515 Unit: PG01 Source: /MILES/PKU/INPUT/022515/022515_o001_db_Corrected SAC 16.05.12.xml Scottish Affairs Committee: Evidence Ev 1 Oral evidence Taken before the Scottish Affairs Committee on Wednesday 16 May 2012 Members present: Mr Ian Davidson (Chair) Fiona Bruce Simon Reevell Mike Freer Lindsay Roy Iain McKenzie ________________ Examination of Witnesses Witnesses: Patrick Layden TD QC, Scottish Law Commission, and Professor Andrew Scott, University of Edinburgh, gave evidence. Q1 Chair: Gentlemen, I welcome you to this meeting it, that Scotland would automatically become or of the Scottish Affairs Committee. This is part of our remain a member of the EU arises because splitting inquiry into the impact of separation on Scotland. We the UK is a major event geographically, legally and want to discuss with you today the elements relevant politically. Seen from outside the UK, it is not even a to the European Union. It would be helpful if you given that both new states will want to stay in the EU. started off by introducing yourselves, and then we will If both parts do want to stay in, there will require to start with questions. be treaty alteration, and I set out in my note some of Patrick Layden: I am Patrick Layden. I am a Scottish the areas in which that would have to happen. law commissioner, but I am not speaking in that First, we in this country tend to have a UK-centric capacity today. These are my personal views and do view of affairs. We see things through the prism of not reflect any position of the Scottish Law our own attitudes, perceptions and wishes. We are not Commission. Before I became a Scottish law unique in that, but our perception of matters is not commissioner, for about 30 years I worked in always shared by everyone else. In this case other government advising first Westminster and then the member states, in particular those with provinces that Scottish Government about constitutional and EU might be seeking more autonomy, will be cautious matters. The Committee has had my note, which sets about creating a precedent for an easy transition from out my position. being part of a country to being a full-blown member of the EU. Secondly, anyone who believes in the Q2 Chair: Perhaps we may first take the other European Parliament will be concerned at the dilution introduction and then come back to you. I thought you of votes that will happen if we become independent were about to give us your exposition. and you have to cater for two member states where Patrick Layden: I was, but I will stop. previously there was only one. Professor Scott: My name is Drew Scott. I am The grounds of challenge are as set out in the note. It professor of European Union studies and co-director would be said that RUK is not the same state as the of the Europa Institute in the school of law at the present United Kingdom. The effect of the split is that university of Edinburgh. I should stress that I am not the UK is leaving the European Union, even though a lawyer but an economist by training, although I live both RUK and Scotland want to rejoin. So the with lawyers daily and have an interest in that side as argument would run that we should use the procedures well. I am principally an economist. in the treaty, which would give the institutions and other member states the opportunity to consider any Q3 Chair: Mr Layden, we invited you here because necessary treaty amendments in an orderly way. I was with others at the event in Edinburgh hosted by As far as the prospects of a challenge are concerned, the university of Edinburgh. We found your address if it got to that, I would myself have said that the on matters to do with separation and Europe most prospects of the Court of Justice agreeing with the interesting. That is why you are here today. I would challenge are quite good because it would fit with be grateful if you could perhaps lead off on how you their perception of the all-embracing scope of see a separate Scotland relating to the EU and the European law. They like to feel that European law implications thereof. provides a solution to any question. As far as they are Patrick Layden: You have my note. I would like to concerned, all human life is there. If asked a question add to it that when you are considering the legal to which one could formulate an answer in terms of implications of any course of action you have to look European law, their tendency would be to go for that. at two risks. The first is the risk of challenge to what I suspect that we would not actually get to court you want to do; the second is the risk of successful because both Scotland and RUK would fudge the challenge. Quite a lot of Government activity happens issue and agree to negotiate as if articles 49 and 50 of on the basis that no one will want to challenge it, even the treaty applied rather than have a fight about it in if they might succeed if they did.