Adam Tomkins: Independence a road to nowhere

This week’s Scottish Government paper mapping the road from a Yes vote in the referendum to the realisation of independence is an astonishing document. It is a road that we won’t even embark on unless there is a Yes vote, of course, and the evidence only grows that this is not likely to be the result come polling day. None the less, road safety is important, and we should scrutinise carefully the SNP’s proposed route.

It is an awesomely fast road. In ministers’ estimation we can reach our destination – full statehood – a mere 16 months after polling day: that is, by the spring of 2016. Now, the truth is that this date has been plucked out not for reasons of Scotland’s national interest, but for reasons of party political gain. The current SNP government will be in power until the spring of 2016, at which point there will be fresh elections at Holyrood. Even if the Nationalists retain power at those elections, it is highly unlikely that they will do so with the overall majority they currently enjoy. That was a freak result in 2011 – so freakish that even the political mastermind that is the First Minister did not see it coming and did not plan for it.

All the parties are currently working on the assumption that, whoever is in government after 2016, there will be a cross-party Unionist majority in the Scottish Parliament. So in one critical sense, the SNP are right: they do not have much time. They have absolute control over the Scottish Parliament now, but the clock is ticking. All of which raises the obvious, and still unanswered, question of why SNP ministers wanted to delay their referendum until as late as autumn 2014 when they could have held it 12 or even 18 months earlier than that.

But, leaving that aside, let us consider what will need to be done once the SNP move their foot from the brake to the accelerator. How do we move from any Yes vote to the fulfilment of the Nationalists’ dreams – full independent statehood. SNP ministers have claimed that, given devolution, much of the necessary infrastructure is already in place. We already have a Parliament and a Government, what more do we need? Well, we will need to do for ourselves everything that is currently done for Scotland by the United Kingdom. If Scotland votes for independence, Scotland will be voting to leave the United Kingdom, to move outwith the UK and to manage without it.

Thus, among other matters, Scotland will need her own armed forces, her own embassies and diplomats, her own security and secret intelligence services, her own Treasury, her own tax collectors, as well as all the apparatus required to set up and operate her own welfare state. Thousands more public servants will have to be recruited (from where?). They will have to be trained (by whom?). They will have to have offices to work in (where?). And, of course, they will have to be paid (that one I can answer: by the Scottish taxpayer). All of this is doable. But within 16 months? No chance.

SNP ministers claim that it can be done this quickly because it has happened elsewhere. They have cited 30 examples of independent states formed at this pace since 1945. The claim is wholly disingenuous. Most of these instances were examples of decolonisation in Africa. In several of them, where there was a referendum, independence was rejected at the polls but happened anyway. In others a state dissolved into several new states (as in the former Yugoslavia). In others again we are talking about states with tiny populations: Vanuatu, for example, has a population about the size of Aberdeen’s. It turns out that none of the examples matches Scotland’s departure from the UK. Still, when has Mr Salmond ever let the facts get in the way of a good argument?

In contrast with the SNP’s deliberate obfuscation, we can be clear about what it would mean in legal terms for Scotland to leave the UK. The rest of the UK would continue and, legally, it would continue as the UK. It would need a new name (the United Kingdom of England, Wales and Northern Ireland) and a new flag (there would be no blue on it anymore) but, in international law, it would be the continuing state. Scotland, by contrast, would be a brand new state. The continuing UK would inherit all of the international legal obligations currently in place in respect of the UK, including its EU membership, its UN and NATO memberships, its seat at the Security Council, as well as treaty obligations under 14,000 different instruments of international law.

Scotland would be free of all of this. It would be born into the world with no international relations with any other state. Scotland would want straight away to begin to form such international relations, to join the UN, to apply for accession as a new Member State of the EU, and to develop bilateral and multilateral relations on a whole host of issues with states both near and far. Again all of this is do-able. But within 16 months, at the same time as Scotland is busy building and staffing all the new institutions it will need to function without the UK, and with no diplomatic corps of its own? No way.

The domestic and international faces of state-building are monumental tasks but, at the same time as undertaking all this work, an independent Scotland would also be locked in negotiations with the rest of the UK about how to unpick the 300 year-old Union that is Great Britain. A new home for the UK’s nuclear arsenal would have to be found. Conversely, the SNP have said that they want other facets of the old British state to continue to apply north of the international Border. They want to keep the Queen. And they want to keep the pound. It seems likely that other aspects of the British state would also continue to exercise functions on Scotland’s behalf, at least on a transitional basis. All of this would have to be negotiated.

These negotiations would be fraught and highly complex. The rest of the UK is not going to give Scotland what it wants just because Mr Salmond demands it. It is true – and welcome – that the famous final clause of the Edinburgh Agreement commits the UK government to working “constructively” with the Scottish Government “on matters of mutual interest”. But, if the Scots vote for independence, the government of the continuing UK will be negotiating hard with the Scottish Government in the interests of the continuing UK. The “best interests of the people of Scotland”, as the Edinburgh Agreement puts it, will be for the Scottish Government to defend.

The Electoral Commission last week called on both governments to supply Scottish voters with accurate information about what will happen after the referendum. This week’s paper from the Scottish Government does the opposite. It maps not a road to independence but a ruinous route of reckless abandon. With the SNP in the driving seat we are headed for one almighty car crash.

• Adam Tomkins is the John Millar Professor of Public Law at the University of Glasgow.