Research and analysis

Devolution and the legal implications of Scottish independence: summary leaflet

Published 13 March 2014

Scotland: Devolution and the legal implications of Scottish independence

Devolution gives Scotland the best of both worlds. It means decisions on issues like childcare, health and education can be made in Scotland, but that Scotland also benefits from being part of a larger UK with economic strength, national security and international influence.

In the event of independence, Scotland would leave the UK to form an entirely new state. This would involve setting up all its own domestic institutions and applying to any international organisations it wished to join.

The rest of the UK would continue as before. The UK’s institutions and membership of organisations would all remain.

Devolution offers Scotland the best of both worlds

The Scottish Parliament has the power to take decisions on issues like health, education and policing, to address Scottish needs. For example, to deal with high smoking rates in Scotland, which contributed to 13,000 deaths a year, the Scottish Parliament was the first in the UK to ban smoking in public places.

Devolution means that people in Scotland benefit from decisions that are best made on a UK-wide basis in areas like defence, security, and foreign and economic policy. For example, by pooling resources the UK was able to inject £45.5 billion into RBS to protect the financial system and savers deposits in the 2008 financial crisis.

Devolution is a flexible and evolving system of government

The Scotland Act 2012 contained the biggest devolution of financial powers to Scotland since 1707. From 2016, the Scottish Government will have £2.2 billion of borrowing powers and will set a Scottish rate of income tax, making it responsible for raising around a third of the money it spends.

Independence would mean Scotland leaving the UK to form a new state; the rest of the UK would continue as before. An independent Scotland would have to apply to all international organisations it wished to join and establish its own domestic institutions

Home and abroad

An independent Scotland would need to apply to join international bodies, including the EU and work through thousands of international treaties. The continuing UK would retain its membership of organisations like the EU, the UN, NATO and the G8, and its treaty obligations.

Domestically, the UK’s laws and institutions would continue to apply and operate in the continuing UK. This means that public organisations such as the Bank of England would operate on behalf of the continuing UK in the event of Scottish independence.

Public bodies

The government of an independent Scotland would need to decide how many of the more than 200 UK public bodies that currently perform functions in Scotland would need to be replicated. They would also have to decide how to pay to run them.

If an independent Scotland wanted to share any of the UK’s current institutions it would need to negotiate with the continuing UK with no guarantees that any sharing would be agreed.

Negotiations

Both governments acknowledge that negotiations on independence cannot take place until after the referendum. The UK Government cannot act solely in the interests of one part of the UK, and the Scottish Government has no mandate from people in Scotland to negotiate unless and until there is a yes vote in the referendum.