“When two people decide to get a divorce, it isn’t a sign that they ‘don’t understand’ one another, but a sign that they have, at last, begun to.” – Helen Rowland
This article is an expanded version of a paper I wrote for the Scottish Independence Convention in 2021. You can read the original here but this version runs to almost twice the length and includes historical case studies of separations between countries.
Parting Ways – How Scotland and the remaining UK could negotiate the separation of debts and assets.
The negotiations around Brexit – and whether they are deemed to be a success or a failure – will no doubt raise once again arguments around how Scotland and the remaining United Kingdom (henceforth “the rUK”) will negotiate their mutual separation should Scotland choose to become an independent country in the near future. Opponents of independence already raise concerns about the potential for those negotiations to be fraught, bitter or too complex to deal with in a timely manner. Unlike the Treaty on European Union, the UK Constitution does not have an equivalent of the “Article 50” within its Treaty of Union and therefore does not have a codified mechanism to provide for Scotland to unilaterally withdraw from the Union (although it does not prohibit such an action either) and nor does it provide a structure for separation negotiations to take place such as giving an explicit trigger to begin negotiations or an explicit time limit within which to conclude them. In some ways, this is to Scotland’s advantage as the Brexit process’s two year time period for negotiations inevitably resulted in higher pressure to conclude the negotiations rapidly rather than well. However, the UK also enjoyed the ability – largely foregone – to simply not trigger Article 50 and start that countdown until a time of its choosing which, had it taken advantage of this, would have allowed the UK to prepare its own negotiating positions ahead of time rather than finding itself at the negotiating table without a clear idea of what Brexit meant.
After an independence referendum or similar democratic event, Scotland will be under immense pressure to begin negotiations almost immediately – the 2014 Scotland’s Future White Paper envisaged those negotiations beginning the week following the referendum – and so it is imperative that Scotland is fully aware of its own rights, responsibilities and asks before these negotiations begin. Scotland must also take the time now, well before a decision to become independent takes place, to plan and prepare so that it does not find itself repeating the mistakes of Brexit and being forced into a disadvantageous deal due to a lack of understanding of what it wanted and what it already had.
This paper is largely an update of my 2016 paper for Common Weal, Claiming Scotland’s Assets, and shall explain the principles of one aspect of those negotiations – the division of debts and assets between separating states – along with a choice of strategies that Scotland could hypothetically deploy as it negotiates its independence.