Scottish independence: 'Court could arbitrate' any negotiations

House of Lords Members of the House of Lords' constitutional committee took evidence on the implications of Scottish independence on the rest of the UK

An international court could arbitrate between Scotland and the remainder of the UK in the event of an independence vote, peers have been told.

Edinburgh University professor of public law Alan Boyle cited cases including constitutional rifts between Britain and post-revolution USA.

The Lords constitution committee was hearing submissions on the referendum.

The Edinburgh Agreement pledged UK and Scottish ministers would work together constructively, whatever the outcome.

However, the committee heard a warning that a 2015 UK general election could present an obstacle to possible negotiations, particularly if one party promised a hardline position if elected.

Potential deadlock

The three main UK parties have already indicated they would oppose a formal currency union with Scotland.

The Scottish government has offered to finance a share of the national debt in exchange for UK assets in its proposal for a currency union after independence.

The committee has been examining a number of issues around independence for Scotland, including the timetable following a Yes vote, the legal implications of any negotiations and what the implications would be for MPs representing Scottish seats at Westminster.

Start Quote

You might want to agree right at the outset that if the two parties are unable to reach agreement they should resort to third party settlement”

End Quote Prof Alan Boyle University of Edinburgh

It would be "prudent" for both parties to agree to potential arbitration before negotiations begin, in order to prevent potential deadlock, according to Prof Boyle, who co-authored the UK government's legal opinion on the international law aspects of Scotland's independence referendum.

"You might want to agree right at the outset that if the two parties are unable to reach agreement they should resort to third party settlement to determine the balance of debts and assets," he said.

"There are international precedents on dispute settlement in the arbitration of German external debts and various other arbitrations in which an international court or arbitration tribunals in the end resolved what would amount to an equitable allocation where the parties have been unable to agree."

He also cited the Jay Treaty of 1794 between the US and Britain following the American Revolution, which "resolved a number of quite important disputes with the US through arbitration".

Pound and EU

Aberdeen University chair in Scottish politics Michael Keating agreed that the divisions could end in arbitration.

Prof Keating said: "I think it is in the interests of the UK for Scotland to use the pound. I don't see that obliges Scotland to share in the management of the pound, which is a different thing altogether.

"On EU membership, it also seems to me that the UK will be the continuator state and Scotland would have to apply, but Scotland has entitlements to membership."

Following a previous session last month, committee chairwoman Baroness Jay was criticised for suggesting that a Yes vote would not "automatically" lead to independence.

Responding to the latest committee meeting, A Scottish government spokesman said: "There would be a mutual interest on the part of both Scotland and the rest of the UK in engaging constructively in negotiations after the referendum, as set out in the Edinburgh Agreement.

"The Scottish government also believes that sensible discussions about the practical consequences of independence should take place before the referendum to help the people of Scotland to make an informed choice and prepare the way for detailed negotiations following a vote for independence.

"Scotland's Future also sets out the Scottish government's view that, while we propose that the key legislative steps towards independence should be taken by the Scottish Parliament following an initial transfer of powers after the referendum, Westminster will also have a role in passing legislation concerning independence."

However, a spokesman for Better Together said: "These interventions make clear that breaking up the most successful social, economic and political union in history will be a very complicated and lengthy process.

"The nationalist idea that it will be all right on the night, and everything will be resolved in a matter of months, simply isn't credible."

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