 Bwownwm. Welcome to the 15th meeting of 2014 of the European External Relations Committee. Can I make the usual request that mobile phones are switched off? Some members are using iPads. Can I extend apologies from Hans-Ala Malik and welcome Patricia Ferguson to the committee. Welcome back to committee as a substitute. The first agenda item this morning is the Brussels Bulletin. Rwy'n cael ei ddeilwyd o'r buselau yng Nghymru, mae'n iawn o'r cyffredin pell, ac yn y cyffredin llachol, mae'n bwysig mewn relيةeth o'i rhan o'i hwn men cos y tacholved o ddau amser Cylunadau yng nghymru, ac mae'n rhan o'r ddeilwyd i'w chi. Oni'n cael ei gllyffu. Felly rydym yn gwybod yn gweithio'r buselau yng nghymru. I just wanted to make reference to the consultation on year 2020 and whether we, as a committee, are going to engage and possibly put forward a response to that consultation or whether we're going to invite the Scottish Government to do so. I'm just having a wee respite in my ear. We've got some scheduled work to do in August, so we're discussing how we're going to focus on that and take that forward in the committee, so the meeting we have in August will probably be the place to do that. Jamie. Just in relation to the TTIP, I've certainly had a few constituents right to me about it, and it could obviously have a fairly large impact on businesses in Scotland if the trade barriers with the US are removed. I don't know whether we want to... I mean, I'm looking for answers there, really, and as to what it would mean. That's what I can say. I mean, I'd like to know more. I mean, it's still at the consultation stage of it, but the reason why we had agreed before to do a wee bit more detail on this was because of that very reason that people had been writing to members and to me is convening as well, looking for some information on how we would handle that. I think that one of the things that we could do is write to the Scottish Government and ask them how they're progressing and negotiating in any conversations that are going on and how they'll then affect Scotland. I think that you're absolutely right, Jamie. I attended a Hustons with the NFU and a number of the farmers there raised serious concerns about provenance and quality of beef and other products coming from other parts of the world and not maintaining the same standards that the EU requires. There are real questions in there about what does it mean for farmers and others on the ground. I think that you're absolutely right. If committee is minded, we could write to the Scottish Government and ask them where they are in the process and what their plans are for that. That then gives the committee a locus to look at it. Perhaps what the supposed implications might be. What could we ask for that? Indeed. Is there any other comments about Willie? Thanks, convener. It's turning to the Brussels door. Bulletin, if that's okay. There's two items that struck me there is what they have mentioned. First is access to finance for small businesses in page 9. Members will note that, under the EU capital requirements directive, it came in force in January this year. Small businesses have got a right to get feedback from their banks about loan applications and so on and so forth. You might think that that's an obvious thing, but it's not actually happening widespread in practice, as it seems. It also appears that when small businesses make loan applications like this, very often the assessment is done using large data pools, which are corporate-based assessment tools, rather than localised decision-making. What that might do, convener, if the commission can beef that up, is to allow small businesses to interact with their banks more locally when they're discussing loan applications. I think that that can only be a helpful step in understanding and perhaps persuading banks to make more localised decisions for small businesses in Scotland and in Europe in particular. The other point that I thought was of interest to me, in my own interest, is the digital skills agenda. Again, you'll note that the bulletin reports that Europe's telling is that there's about 700,000 unfilled ICT-related jobs that are expected to be within the union by about 2015. Most of them, I would imagine, might be in software engineering. As you know from discussions in the Scottish Parliament, there's quite a dearth and a shortage of software engineers within Scotland. That seems to be reflected through Europe and, in fact, 60 per cent of those vacancies that's reporting are in the UK, Germany, Italy and France. The initiatives that we've seen in Scotland recently to try to address that, to encourage more youngsters to take software engineering, and particularly women as well, I think are to be welcomed. It's a welcome step to note that the European Union itself is concerned about this and is prepared to do something about it. A couple of points. I'll pick up on the ICT one, which I had also taken a keen interest in. Obviously, Mr Coffin and I both have a background in ICT, particular interest in these areas. I was wondering, though, if it says that the institute have produced a map of the ICT areas. I wonder if the clerks could either find there's a link to that or if we could maybe get it lodged in space so that members have an opportunity to go and look at it. I think that that would be very, very useful. I, however, as Willie Coffin has said about the digital skills, was also quite taken by the blue innovation section about the strategy for the marine areas and given Scotland's waters and the amount of interest that this will be to put in particular into Scotland. I thought that that was a media that we may be able to come back to in a future committee to look at in more detail. Rodd. Mr another point in terms of the EU capital requirements legislation. The UK's legal challenge to that, could we just ask for some kind of update if there is any on when the court of justice is like to be hearing this challenge? Anything else? No? Happy to forward the Brussels Billeton to our subject committees. Should we raise with economy and finance the specific points that you raised, Mr Coffin, about finance? I think that that would be very helpful to let them to that. That's it. Thank you very much. Moving on to our second agenda item today. We're going to suspend very briefly to allow people to get to their seats and get things set up. Welcome back to the European External Relations Committee. We're moving on to agenda item two, which is the Scottish Government's proposed for independent Scotland international policy, including membership of international organisations. This is our main agenda item for today. We'll be taking this one off evidence session, which is in the form of a round table, as you can see. Apologies from David Pratt, who can no longer be with us today. He has another commitment. As I say, we'll be running this as a round table format. If people just catch my eye if they want to come in, if you want to comment on each other's comments, if you want to come in to answer some of the questions from members, please just do that. But if you can maybe do one at a time through me and then we'll make some sense of it. As I say, just catch my eye. What we'll do first, because we've got Alison Bales, who is with us from Iceland, on the video conferencing monitor today. What I want to do is go around the table for everyone to introduce themselves and just where you're from, if you're happy to do that. I'm Christina McKelver, the convener of the European External Relations Committee. Clare Adamson, Central Scotland MSP. Colin Fleming, from the Scottish Centre of Constitutional Change, Edinburgh. Good morning, Alison. I'm Wally Coffey, MSP member for Cymarach in Irvine Valley. John Ainsley, co-ordinator of the Scottish Campaign for Nuclear Disarmament. Patricia Ferguson, MSP for Glasgow Community Hill in Springburn. Juliette Carbo, senior lecturer in politics and international relations at the University of Edinburgh. My name is Alec Rowley. I'm Constellation City MSP for Cowdenbeath. I'm Brodrick Campbell, MSP for North East 5. And I'm Bruce Eddamson, the legal officer at the Scottish Human Rights Commission. Adam Tomkins, I teach constitutional law at the Glasgow University. Jamie McGregor, MSP Highlands and Islands. I'm Alison Bales, teaching at the University of Iceland in Reykjavik. Welcome, everyone, to committee today. As I say, we've got quite a good topic to get stuck into today. As an opening question, I would probably ask our witnesses today to give us a wee bit of their insight into where they think Scotland's standing is in the world and how that's developed and how we can take it forward as just a very gentle opener. Then we can go to the more specific. Bruce. Thank you, convener. Along with the white paper that the Scottish Government has made commitments through Scotland's national action plan, which set out very clearly the Scotland's relationship and international obligations, and that the Scottish Government and previous Scottish Governments have committed to ensuring that human rights considerations are at the heart of the international framework that Scotland connects to through international development, through bilateral engagement and through engaging with inter-governmental organisations. International human rights law lays out obligations which states are bound to respect, and by becoming party to the international treaties which Scotland has through the UK, states assume obligations and duties to respect human rights by refraining from interfering or curtailing them, to protect individuals and groups against human rights abuses and to fulfil human rights by taking positive actions. Those obligations to respect, protect and fulfil flow through all of international policy. That's a really good place to be starting when we consider Scotland's relationship with all inter-governmental organisations. The Scottish Human Rights Commission, as the National Human Rights Institution for Scotland, does not take a view on the outcome of the independence referendum that's a matter for the people of Scotland, but now is a really good time to reflect on Scotland's place in the world and where we want to be in the future. While foreign affairs is currently reserved, observing and implementing international obligations isn't, and we've made some really good progress over recent years. I think one of the points I would like to make is that you as members of the Scottish Parliament share that obligation, play a very key role as part of the state architecture in implementing and observing human rights. I think that's something that I'd like to develop in terms of the role in which the Scottish Parliament can play in the future and inter-governmental organisations. There are some areas where Scotland is really already leading the way in playing a key role in developing international standards on business and human rights, on climate justice, and particularly relevant at the moment, our approach to the Commonwealth Games, where for the first time there's going to be a human rights policy in relation to the Commonwealth Games. The national action plan, which I mentioned at the start, which has already received international praise for the approach that we've taken, but there's a lot more that we need to do as well. There's some real gaps, the reticence to incorporate international obligations, and sometimes where our engagement with the international community has raised some serious concerns, things like the age of criminal responsibility, the lack of equal protection for children from violence. This international framework provides a really good starting point for the spare of the discussions. I think that what I want to say, and what the commission wants to flow through this, is that respect, protect, fulfil flows through all of our international obligations. Okay, thanks very much. Bruce, is there any other comments from our witnesses on? No, I've got a follow-up question for you then. I don't know if you were, Bruce, of the paper produced by the House of Commons, the European Scrutiny Committee, the application of the EU charter of fundamental rights in the EU. Okay, a state of confusion, which I have to say I wasn't very confused when I read it, but I was very worried when I read it, because words like this application of any human rights responsibilities have been used, whether that's where the recommendations are going, I'm not sure, but I'm a wee bit worried about how the impact that would then have on our human rights charter and how we then take that forward. I think that the key point when looking at our international obligations is that they flow through everything that we do, and that we can start looking at the UN and the Council of Europe and the European Union and the Charter of Fundamental Rights, but I think there's political decisions to be made in terms of where Scotland fits in in the world, but what isn't a decision is our commitment to the international standards of human rights. Obviously the committee has spent a significant amount of time and taken evidence on the EU and including the Charter of Fundamental Rights, and that to some extent has been dealt with separately, but the commission's approach is to say that the starting point is these human rights principles, and they flow through. The Charter of Fundamental Rights reflects international standards that are reflected in a whole range of international treaties that the UK and Scotland are already party to, and the way in which we engage with the EU and the Council of Europe and other international bodies needs to flow from those obligations and how they apply in Scotland, and it's much more about how human rights are bought home and apply in the day-to-day lives of people than the political decisions we need to take about how we fit into some of these structures. Thanks very much. I just wanted to say about that. I haven't read the specific report of the European Scrutiny Committee that you just referred to, but I will very shortly. Now you've made me aware of it. I think that the anxiety that's shared across both of the main Westminster parties in British politics about human rights is not about anything that Bruce has been talking about, and I agree with everything that Bruce has said. That will soon stop in order to make this interesting, but the anxiety is not about the UK's or Scotland's commitments to international human rights standards. The anxiety is about the role of European courts in particular the extent to which the two European courts, the European Court of Human Rights in Strasbourg and the European Court of Justice in Luxembourg, seem able to dictate to the United Kingdom aspects of domestic law which go considerably further than the human rights standards that the United Kingdom signed up to when it ratified the relevant treaties, the European Convention on Human Rights in 1950, the Treaty of Rome, the Lisbon Treaty on the EU side, and this anxiety I think has felt equally strongly north of the border. I mean you find Scottish judges privately concerned with this in the same way that you find English judges privately concerned with this. There was a huge political storm a few years ago about a certain European rulings concerning aspects of Scots criminal justice procedure, and you see elements of that also in the ongoing political arguments here about corroboration and reform of criminal justice. So I think that I would make a distinction between both the United Kingdom's and Scotland's commitment to human rights standards on the one hand, and an anxiety which I think has felt very strongly in British politics, but also here in Scottish politics, an anxiety about the role, about how far the role of European courts and European judges in the two European courts has extended to limit the room for manoeuvre, the margin of appreciation as it's sometimes called, that elected politicians ought to be able to have in assessing in the public interest how you distinguish between how you legislate for the distinction between the necessary protection of fundamental individual rights on the one hand and the public interest on the other. Courts in the UK, both north and south of the border, are in crude terms more deferential to political judgments both in this parliament and in the other kingdom parliament than European courts have been, and that's where the cause for concern I think is whether the specific report of the European Scrutiny Committee in the Commons that you referred to talks about that issue or not. I don't know, but that seems to me to be an important distinction to bear in mind. Did you want to come back? Only very briefly to probably agree with Adam and that we're going to disagree, and that we'll disagree on the way in which justiciability of human rights is important, and I think the starting point here is to realise that the human rights treaties aren't aspirational documents kind of dreamed up. These are carefully negotiated treaties with international effect and international law, and I would kind of disagree I think in terms of how the courts have extended rights and that we have a framework of international human rights obligations, and they've been negotiated very clearly, and they are universal, and you can't separate or put a priority into rights. One of the issues of conflict seems to be where there is a difference of opinion in terms of how far courts should go, but courts are very much setting the floor, the very minimum standards, and where the application of human rights really is, is the application and moving progressively to realise economic and social rights, and the courts role is to make sure that we don't fall below that minimum standard, but I think there's a real danger in seeing human rights as some kind of sealing, because I think that that gets us into a very confused position. Thank you very much. I'm happy to open out to wider topics if colleagues are ready to go. Jamie, of course you can. Just on that subject, this business bit of the sort of differences between individual rights, individual human rights, and what is public interest, what's deemed to be public interest, how in the European courts when they come up with these things on individual human rights, do they not take account of public interest? Because obviously this is going to come up and be difficult for some governments and countries. I just want to know how it comes into being really. Yes, the answer to that in short is yes. I mean national courts, both in Scotland and south of the border, and European courts, both the European Court of Justice and the European Court of Human Rights, certainly take into account questions of the public interest when determining disputes on human rights or convention rights grounds, but the argument in British politics at the moment seems to be, you know, in simple terms, a disagreement I think between the extent to which courts should privilege public interest considerations over individual rights considerations. So, a classic example. This Parliament legislated to ban the hunting of foxes with hounds in Scotland, and that legislation was challenged on human rights grounds by people who said that their right to property or their right to privacy or their right to livelihood was disproportionately interfered with by that legislation, and the courts looked at that and they said, well look, you know, there are some individual rights claims here which are material. There are some public interest considerations here which are material. If we look at the record, we see that the Scottish Parliament deliberated upon all of these considerations with really, you know, quite some detail and the court was impressed, I think it's fair to say, by the quality of the debate here in this Parliament and ruled that the legislation was not a disproportionate interference with the rights in question. So, this is absolutely typical of human rights litigation, right? There's a challenge to legislation by individuals who claim that the public interest in the name of which the legislation has been passed disproportionately interferes with their convention rights or their human rights, and it's the job of the court to assess whether the legislature has achieved an appropriate balance or not. Now, in that very delicate exercise, which is not clearly an exercise purely of law or of politics, but which is an exercise that involves both legal and political considerations, it seems to me, UK courts tend, of course there are exceptions, but UK courts tend to be slightly more deferential to legislative judgments that have been reached by elected policy makers than European courts do, and that is one of the causes of the tension that we see, both, as I say, both north and south of the border at the moment in terms of what you might call human rights politics or arguments about the reform of the Human Rights Act. If I can bring the independence question into this, I don't think Scottish independence, where it to arise, would make very much difference to any of these considerations other than that they would be more visible in Scotland. There would be more concern probably in Scotland about the way in which this Parliament was being constrained in its freedom of manoeuvre by international human rights lawyers and by European courts using aspects of international human rights law aggressively. Why would it become more visible? Because the range of powers available to this Parliament would obviously grow in independence, and a number of human rights considerations would come into play in the Scottish legislation here, which are currently reserved to Westminster. So I think the problem is not a reason for or against independence, not a reason for or against a yes or a no vote. I do think that Scottish public concern and Scottish political concern about international and European human rights law would be likely to grow rather than diminish. Concern would be likely to grow rather than diminish in the event of independence. Rodd Campbell A couple of points, convener. Just in terms of reference in Mr Adamson's written submission on the way in which Scottish law policy and practice is being represented at the current time, there is reference in that in the footnote to report to the UN Committee on Economic, Social and Cultural Rights. I think it makes a particular reference to drawbacks that the UK Member State's submission in relation to housing and health, in particular in Scotland, but that dates back to April 2009. I wonder if Mr Adamson had any more updated thoughts on the way in which separate Scottish law and practice was being represented by the UK Member State and how he perceives independence might change that. Chris, do you want to come in at this point as well then? Yes, so maybe just a very brief point in terms of our kind of concept of human rights and obviously I think as lawyers we often focus very much on the justice ability of human rights and when we look at the Human Rights Act and the Scotland Act and how they've bought domestic incorporation of some civil and political rights within Scotland. I think there's a real danger in getting too focused on that because I think that it ignores the wider obligations that we have and while even within the Human Rights Act and the rights contained therein, those rights aren't all absolute and the courts are very good at kind of balancing the concepts that Jamie McGregor was talking about in terms of finding that kind of proportionality that the courts have got that very well developed but I think there's a real danger in focusing too much on those rights that are justiciable and forgetting that there's a wide framework of international obligations that we need to meet and we can do those in a whole bunch of very positive ways and there's a lot contained within the national action plan about meeting those obligations but we do need to be very clear that we ensure the protection that's contained within the Human Rights Act and the Scotland Act in terms of the way in which legislations frame but that's not the whole story. In relation to the specific question that Roderick Campbell was asking in terms of the way in which particularly Scotland is represented through the UK at the international level through the reporting against our international obligations. One of the concerns that the commission has raised on a number of occasions is that when the member stays to the High Contracting Party to a treaty is engaging with the international mechanisms that review those obligations, there is a risk that Scotland might not be as well represented in terms of some of the progress that we've made. While the commission doesn't take a view on independence, what I would say is that there is huge value in ensuring that public and civil servants and other professionals are fully trained and aware of human rights standards and so that they can feed into that reporting process because what we're talking about here is the reporting process to the supervisory bodies and I spent most of last year at the UN office in Geneva and representing national human rights institutions from across the world over 100 countries and I engaged very closely with diplomatic missions and treaty bodies from across the world and what works very well is when you have very highly trained civil servants, not just in York and Geneva, Strasbourg and Brussels, but well educated and well engaged domestic civil servants who are able to feed into that process and to be bought in and I think that the world programme for education on human rights is really key here is that what we can do and what I hope we will do through the national action plan is to improve the level of education understanding of everyone in Scotland and particularly civil servants so that we can engage better with that reporting process. I was wondering if you could maybe expand on your written evidence and the white paper in relation to the constitution and a written constitution and what opportunity that might give to actually embed human rights into that constitution in independent Scotland? Yeah and I think this is probably one of the things where Adam and I will quite strongly disagree in terms of the place of economic, social and cultural rights within the framework of constitution. The UK in Scotland is one of very few countries, my home country in New Zealand and Israel are the only other two countries in the world that don't have a written constitution within a single document and in New Zealand at that moment they're having the same discussion and conversation about the value of having a written constitution and I'm told that in Israel they're having that discussion so it's a really interesting time and the commission's view very strongly is that independence of the result of the referendum in September is that we should be looking about at how we can better incorporate human rights within the constitutional framework and whether that's through legislation at a devolved level or a national level or constitutionally that's a discussion that we should be having and the thing that that's a decision what's not a decision is in terms of the international standards and I think that we've got really good evidence from across the world that the best way to protect human rights and the best way to fulfil our international obligations is to incorporate those all of those those rights including economic and social rights and we've got the vast majority of the countries in the world now to some extent incorporate economic social rights within the some kind of constitutional framework and so that's where where we should should be headed reflecting that that that all human rights are universal indivisible interdependent and and interrelated but the commission doesn't take a view on whether independence provides additional impetus to that or not but but what the commission is is very clear about is that we need to have this debate and we need to explore ways in which we can do it no matter what the result is in September I must admit I've always found it intriguing as to how people in Scotland would be better served by having human rights obligations enshrined in a constitution because already they're enshrined in everything we do you know this Parliament can't pass legislation that isn't compliant so I'd like to just tease out what you think would be additional in you know the scenario where we were having a written constitution that would enshrine human rights but just on a very brief brief point that the human rights in the scotland act do incorporate within within scotland in a kind of quasi constitutional way the number of rights the kind of civil and political rights within the the european convention has set out in the human rights act but I think what a wider discussion is necessary about the whole range of of international obligations that aren't currently entrenched in any way in domestic law and so I think that is the discussion that we want to have is about the rights wider than the those rights just contained within the human rights act and referenced in the scotland act what rights do you have in mind what wider obligations so about economic and and and social rights so that the kind of broad range of particularly rights um in relation to i mean that there's been very recent discussions in the parliament about the the UN convention on the rights of the child which which isn't incorporated at all and there were some some discussions about whether we could do that in some way but the kind of broad range of of economic social rights the kind of the rights that kind of cut to the the very heart of of people's kind of daily lives rather than the kind of the civil and political rights which were traditionally kind of protected but this is kind of kind of housing and the kind of basic thing housing education the the very kind of basic things that cut to the heart of of people's daily lives Professor Tomkins thank you very much I've got I've got two concerns about what Bruce has said the first is that the more you say ah that you know that thing over there that we like that's a human right the more you do that there are lots of things over there that we like you know we like a clean environment we like good air to breathe we like clean water to drink and thank you for supplying it um we you know we like good education for our children we like good health care um the more you say all of these good things which are you know public policy imperatives which are you know the reasons why we elect you to get these things right for us the more you say these things are human rights the more you risk diluting that concept uh and uh like Bruce I believe absolutely passionately in human rights and I think that there are some rights which are so important that they ought to be absolute rules lines which can never be crossed um and the absolute right um to be free of torture anywhere in the world is one of those that I would say is an absolute right that should not be subject to proportionality analysis that should not be subjected deference that should be an absolute and and there are probably others but that's an example and I really worry that the extremely good well-intentioned work of the Scottish Human Rights Council commission sorry Scottish Human Rights Commission and other like-minded organisations across Europe and indeed in the world risk diluting the core of the concept um and I'm I'm nervous for that reason about constantly adding to the list of human rights I mean how I mean what is human human right is something which we cannot be a human without right if we are if we are denied a human right we are denied something which is of the essence of our humanity right and uh that's my first concern the second concern is if you put these economic social and cultural rights the right to food the right to development the right to healthcare the right to social security that's what we're talking about when we talk about economic and cultural rights if you put these in a written constitution or if you put them in an active parliament if you put them in any kind of legal instrument whether you call it a written constitution or not then um uh do these become uh justiciable do these become enforceable in a court of law and would it be the case that in an independent scotland with a written constitution including all of these rights that Bruce wants to put in that this parliament wouldn't actually be responsible for determining you know how water is supplied to scots or how we're going to tackle questions of the environment or how stretched resources in terms of healthcare are to be appropriately provided this parliament won't be deciding any of those things this parliament will be making pitches to the court of session which will be deciding these things because these questions once they become enshrined which is a word that Bruce used once they become embedded in a written constitution or in an active parliament or in some kind of legal instrument become as it were the property or the domain of lawyers now you know i'm a lawyer i quite like lawyers but i i like politicians more and the reason why i like politicians more is because we elect them to make these decisions for us and if we don't like the decisions that they make we can de-elect them and you can't do that with judges and there is a real democratic deficit problem with the prospect of enshrining all of these rights in a written constitution or in an active parliament that's why the UK has never done it the UK is as a as a as a as a policy absolutely committed to doing the best it possibly can in terms of you know healthcare and clean environment and you may agree or disagree politically with what the UK is doing but that's exactly the point isn't it it's a political disagreement so why would you want to hand all of that over and give it to the unelected old white men of the court of session to enforce on Scotland's behalf i just don't understand the democratic logic of that position Alec Rowley first and then we'll go back to Bruce and I think we're going to have to move the topic topic on after that i mean i think it's a really interesting discussion regardless of the outcome of the referendum and it's perhaps one that we should return to because you know i mean i've always believed that it's right every individual to have a roof over their head um and strive for that and i'm sure politicians and governments say all persuasing um or certainly most um would strive for that but it's whether it's whether that that enshrining that in some kind of written constitution would mean anything to people at the end of the day if the local authority or if the Scottish government or the UK government don't make the financial resources available to prioritise having a roof over your head for every individual in the country and i think that that's the interesting what would be the point of it if it doesn't really mean much but you did say you did say that there is there is evidence that the best way to protect human rights is to have a written constitution and it would be interesting i think perhaps to you know necessarily today but to get that evidence are you saying that in all these countries where there's a written constitution that human rights are better protected are you saying that where there's written constitutions and people have rights to housing rights to healthcare rights to that they actually get that more so than the media were unwritten constitution i think that would be interesting but as i say not necessarily for this to be something we should return to certainly after the referendum i think that this cuts very much the heart and very much of what we're looking to do through through the national action plan and as i said before most countries in the world do incorporate economic social rights the kind of housing health education within some kind of kind of legal or constitutional framework and it does provide a highly level of protection where i strongly disagree with with adam is defining human rights simply as those absolute rights that that's not what what human rights are and that this isn't something that that's made up by courts this is something that that is made up by politicians the the international treaty obligations are carefully negotiated at an international level and following on from the the university declaration of human rights in 1948 which didn't make a distinction between these these rights that said all of these rights are indivisible and included economic social rights and following that the treaties through the through the sixties and with the international covenants on economic social rights and cultural rights we've had a strong history of political negotiation about defining what these rights are these aren't new concepts these are things that have been negotiated at a political level and some like torture are absolute but others need to be progressively realised taking into account their kind of economic situation in a country and courts in other places are very good at balancing these rights we've seen some some very strong jurisprudence from from South Africa looking particularly in relation to things like healthcare where there were cases where people coming forward saying i want a particular type of treatment for the the condition that i have and the court saying no no the the right to health doesn't say that you get the treatment that you want um but what the the um what the the standard say is that the state has to consider everything the state has to make a decision based on the available resources to the to the best attainable standard and so um the the case of an individual asking for a particular um level of care not necessarily successful but the case of um in relation to anti-retrovile drugs for um for for babies for the transfer of hiv between between moms and babies the the constitutional court in south africa said no you have to have a standard you have to consider this you can't say that that it's not available in some areas and others and so what the the international standard say and what the incorporation particularly of economic social rights provide is a framework for decision making where you can't challenge necessarily the the outcome but you can challenge the decision making process um and provides for the best possible decision within available resources i think we're going to move on to a new topic clear items is going to pick that up but i think you know we could probably talk for a few hours on on these aspects um and we would be very keen if you do have any additional written evidence that you'd want to provide to us we would be very keen for for for both sides of the argument to be presented to to committee to allow us to consider it a bit further um clear Adamson um thank you can be right um if i could direct a question initially to to Alison Bales um you publish a Carnegie Endowment for international piece article in which you wrote Scotland will be joining a set of nations that have often flourished in modern Europe so long as the grass implication of their status and careful choice with careful choices required so in a general question and to open up a little bit of the debate about this what opportunities would a yes vote open up for Scotland so that it could flourish flourish on the global stage well thank you very much for for the question uh the reason i stressed that point in the article is that small states are extremely diverse some of them make very good use of their position in a canny sort of way because let's be frank it does give the chance to be a free rider you escape a lot of the most difficult burdens and decisions of powerful status in the world and you gain the chance to be for example a respected mediator a taker of uh high-minded initiatives you have a relatively uh small limited economy where you can try and bring out your best qualities for international competition and you have maybe a better chance of popular cohesion behind your policies although i would stress that um that does not come automatically and you need just as sophisticated a mechanism for forming policy in a small state as in a large one because differences that exist can easily become sharper in that they are um personalised in a small community so i would say that um deciding to become a small state in this case it would be a small state independent for the first time is only the first step you then have to say what kind of small state do you want to be and what actions are you going to take i would stress internally as well as externally to follow that through now the scottish government in explaining what kind of small state it would want to be has given some fairly clear answers it would be a robust small state in that it would have proportionately sized armed forces and it would be ready to defend itself it would want to be a NATO where it would actually have to defend its allies as well an independent scotland and NATO would be pledged to defend the remaining UK which is an interesting point but it would also be a peaceful small state with um a particular attachment to disarmament including nuclear disarmament and it would be one with a kind of global conscience which would engage in peace missions humanitarian aid and so on um this is often put forward as a Nordic profile and i think objectively speaking those are characteristics typical of the Nordic states although the individual Nordic profiles vary a lot i think it's uh not unrealistic for Scotland to try to assimilate itself to that profile given not just its size and its traditions and its skills but also geographical position which makes it a peripheral and a maritime power small peripheral maritime powers actually do have chances for overseas intervention and for very wide global engagement which perhaps small landlocked small states which are hedged in by big neighbours would find more difficult not to go on for too long on this the last point i would like to make is that Scotland would be in an unusual position as a small state breaking out of a large one because the carriers of Scottish policy in this new situation the diplomats the soldiers the international business people would have a big country background but would be then acting out their role as a small state and that's a very interesting situation and it might have both negative and positive connotations in terms of Scotland's prospects compared with other small states the large country experience i think would be very helpful in tackling some very tough international problems i think people internationally would expect Scotland to understand terrorism given its background in a way that rather few other states of five million would on the other hand would Scotland be able to shake off those aspects of the big country heritage an image that it would want to shake off i think that there is no automatic answer to that and that is something that would need careful thinking about in the event of independence interesting the white paper also has a number of proposals for how Scotland would do its international engagement about embassies and what the core functions would be have you any comment to make on the five core functions of the embassies as stated in the white paper those seem to me to be straightforward and as a former diplomat myself i see those as straightforward and natural i think the problem which one of my colleagues here today has already raised in evidence is how the resources would be found for maintaining this representation at a suitable level of both numbers and quality in so many different locations when i think it is legally correct that existing British embassies would remain the property of the United Kingdom i thought that that i should throw in one point here which may not yet have come up in the discussion although maybe the Scottish Government has been looking at it that is that when you are a small state there are some options for as it were diplomatic representation on the cheap and these are things that are quite normal in diplomatic life one is that you can share an embassy building with someone else here in Reykjavik the UK shares with Germany which saves a lot of costs and Scotland could of course share with the remaining UK or with the Nordic country or someone else secondly if you don't want to have full embassy representation you can set up what is called an interest section in the embassy of another country and you can have a few of your own staff embedded there to carry out whichever functions you wish a consular political commercial whatever thirdly you can ask another country to look after your citizens from the consular point of view and EU members are more or less committed to offer each other that kind of help if they are asked and particularly in an emergency another point that may not have been discussed is that any country can appoint honorary consuls in a country where it doesn't have an embassy and I recently read a study of how Liechtenstein which is really tiny had persuaded some of its citizens abroad or friendly foreigners to act as honorary consuls and had been very effective in pursuing its commercial and cultural interests and its image building through them although you could not really expect to use honorary consuls for tougher purposes of of military policy for example. Things to what Alison says about what small states can do I agree with the kind of different approaches that she's outlined but I just wanted to add in a few of those one is small states can can prioritise what they do often small states will say we can't cover everything globally but we will focus in on a few things that can also be developing economic niches and priorities small states often choose also to to show themselves as a good ally for the security protection which does come with some commitments to that stronger ally but but gets the benefits of protection sometimes some small states are innovative in terms of their internal organisation so several small states don't just have a foreign ministry and a defense ministry they'll also have a a trade ministry and a and a developed ministry sometimes more external ministries than a big state because they know they they have to do more on whatever priorities they have and of course collective action and belonging to international organisations is a key strategy for small states one thing that small states have that that big states often don't is credibility to serve as honest brokers to to to lead international organisations or to mediate international conflicts and they have they have this credibility in some ways because they're small because they're not seen as a threat they're not coming to the table with another agenda sometimes they are coming to the table with another agenda but but they're often not seen as such but this kind of soft power or honest broker or credibility is built up over a long time that doesn't just happen on day one just because you're a small state so small states can do all these things but but let me throw something else out here is that small states can't choose these strategies in isolation they're part of an international community and there's from day one there's all kinds of external expectations on the roles that they can play the roles that they should play and so so back christina back to your very broad opening question what is scotland standing in the world that standing is in part what scotland makes of it and in part on what others outside want scotland to do john inslee just to follow up with that in terms of the nuclear disarmament and and what's been happening internationally um there's quite a lot of examples of smaller states which have played a key role sorry sorry there's various examples of small states that have played a key role in nuclear disarmament um new zealand being one island being another and one of the things that they've been involved in is creating and sustaining groupings at npt prep comms and what working with with other states and i think the other key point with this in terms of of an independent scotland's how it could flourish on a global stage is to consider the impact of an independent scotland carrying out the nuclear disarmament initiatives that that are being proposed um my own view is that scotland not having nuclear weapons is likely to result in london deciding to scrap its trade program so that has major international implications the current position is that there is a logjam in nuclear disarmament and there is a great deal of resentment around the world about that the first resolution by the united nations general assembly called to the complete elimination nuclear weapons resolutions saying that have been passed every year the p5 nuclear weapons states russia america china france and britain work together to effectively try to block progress on nuclear disarmament the frustration with that resulted in a series of conferences the first one hosted by norway natal member last year pulled up by one in mexico this year and then the third one in austral later on the the mexico conference attended by 146 nations it was boycotted by the p5 nuclear weapons states now these countries are coming together saying we want to see progress on on nuclear disarmament and under a heading of looking at the humanitarian impact of nuclear weapons and i think if scotland was independent pursues its nuclear disarmament policy yes there's some resentment to that from some quarters but also a lot of other states that would welcome it when south africa got rid of its nuclear weapons before disarmament that was then followed up by south africa playing a key international role in nuclear disarmament initiatives so i think that's certainly an example of how a small sea can can play a disproportionate role thank you Colin Fleming yes thank you it's not on nuclear weapons and the nuclear deterna such but we've probably come back back to that later it is one of the points that allison made and whether scotland is an independent state is caught between having some of the baggage of a larger state and trying to find its ways a small state if i reflect on that in terms of the the defence section of the white paper and speeches and declarations by the first minister and by angus robertson i think there's much there to highlight that scotland would be military would be very very different from that of the UK and that would be very important for scotland i think scotland would be in a position i don't think it's an easy position to transition forces but it would be in a position that a lot of states and include the united kingdom in this that would be in that they would have a blank canvas to really decide what is the best military instrument for the 21st century and build that accordingly that that's very important and i think given given that scotland has a chance to find anish in its military affairs and you know allison's discussion of the Nordic region it's quite clear that the Scottish government sees the strategic gambit delay in that area and it could carve out anish in there as well as being prepared to be involved in other overseas missions that would depend on whether it can get rid of the baggage i think depends on lots of things including negotiation and the blueprint that's there in the the white paper i think gives a clear indication of what it would do what it would be interesting to see is that during negotiations that could be thought out further indeed the white paper success in that there'll be a strategic defence review in 2016 that would be the point to really think what what does scotland want to do and how's it going to do it and in negotiations with london and i think in cooperation with london find it find its role in the world thank you allison did you want to come back in any of those points i might have some comments on the nuclear issue but as mentioned you might want to take that again later in the context of scotish defence policy as you wish north just make your comments we'd be happy to hear your comments yes i'm personally very much engaged on the nuclear disarmament side but i feel nevertheless that i need to make the point that a small state first works for its own preservation and that's one of the immutable laws and in scotland's case that is i assume what has led the government to say that they would have to be in nato although we know that for many in in scotland that was not an easy decision scotland would need the protection of nato it would need specifically the protection of the united states given our geographical strategic position in the atlantic and it would of course need a very intimate defence corporation with the remainder of the uk i think what would be very interesting to see is where would the day by day development of scotish nuclear policy come between on the one hand the very strong impulse to be a non-nuclear anti-nuclear state for reasons of belief and also using the possibility that a small state has to take such ideal positions and on the other hand uh the political deals and compromises that would be necessary uh to stay within nato um what i would like to say though having raised that point is that that is not an impossible conundrum to resolve it is one that norway danmark and iceland have resolved um by being non-nuclear states by saying that they will not accept any nuclear presence on their territory by supporting the strategic concept of nato um which includes nuclear deterrence but at the same time stressing that nato has committed itself to a nuclear free world and then going on from that which is what i mean by the day to day choices aside from having the sort of large banner of a nuclear free world they have used their expertise as technologically developed small states which actually have a lot of insight into nuclear technology because of having civil nuclear power systems for example to take technical initiatives that are very important for nuclear disarmament arms control monitoring of reductions uh technical aspects of nonproliferation and so forth and although there hasn't been time to investigate this yet i think that an independent scotland with its big country heritage would have the opportunity either to invent or to join some extremely important technical initiatives related to nuclear proliferation and disarmament and indeed to nonproliferation and disarmament in other fields of weapons of mass destruction policy or arms policy in general. Thank you very much Alison, Jim McGregor. I hope i'm not mixing up the themes here but i think this comes under theme three my question. What i want to know is who would decide the status of whether the rest of the UK alone in the event of a yes vote will be the continuing state if so Scotland would be considered a new state or if both the rest of the UK and Scotland would be continuing states because the implication of this appears to be if only the rest of the UK is deemed the continuing state then all assets originally belonging to the UK will be transferred to the rest of the UK while Scotland would have to start from scratch. Adam Tomkins. I think i thought you might say that that's a question for everyone but the answer to the question who would decide this is a matter of international law it's not up for negotiation and there is a very full analysis provided on this question by Professor James Crawford the Professor of international law at Cambridge and Professor Alan Boyle Professor of international law at Edinburgh which was published in full commissioned by the Irish Kingdom Government and published in full by the Irish Kingdom Government in the first of the UK government's Scotland analysis papers and i commend that analysis to everyone on the committee and that the analysis contained in that legal opinion in terms of its analysis of public international law has never seriously been questioned by anybody and it is that in the event of ES vote in September what that would mean as a matter of international law is that Scotland becomes a new state in international law and the rest of the United Kingdom becomes the continuing state why for a range of reasons that's what happened in 1922 when the Irish Free State was created the Irish Free State was a new state in international law and the United Kingdom of Great Britain and Ireland became the United Kingdom of Great Britain and Northern Ireland that's also what happened when the Soviet Union collapsed Russia was the continuing state it's not what happened in Czechoslovakia when the Czech and Slovak Republics were both new states and the Czechoslovakia was dissolved why wouldn't that happen in this instance well it wouldn't have an instance for a range of reasons the most important one in my mind is that this is a vote which is taking place only in Scotland this is a decision in Scotland about whether Scotland should stay in the UK or leave the UK it's not a decision of the UK as to whether the United Kingdom should be dissolved and reconvened as it were into fresh states if this was a UK wide referendum about the future of the union then the legal implications of that might be very very different but it's not a UK wide referendum as we all know it's a referendum which is taking place I think the phrase was made in Scotland all right the decision in the referendum is should Scotland stay in the UK or should Scotland leave the UK the international legal status of the UK will be unaffected by the result of the referendum if there is a no vote the United Kingdom subsists if there is a yes vote the United Kingdom subsists albeit tragically in my mind without Scotland which plays such a massive role in in in British life so the that's the that's the position in international law now I understand that Scottish ministers have said that they don't accept that position I understand that that's that's the that's what Scottish ministers have said but Scottish ministers have not explained in international legal terms the grounds on which they don't accept the position and I think that's because there are no grounds on which that position can credibly be challenged as a matter of law now what follows from that is not quite as Mr MacGregor said what follows from that is that the UK's public institutions would automatically become the public institutions of the rest of the UK so the UK parliament would become the parliament of the rest of the UK the UK supreme court would become the supreme court of the rest of the UK and materially to our conversation this morning as Alison said in her first contribution the UK's diplomatic corps the UK's embassies the UK's international relations and the machinery that delivers all of that would become the diplomatic corps the embassies and the diplomatic relations of the rest of the UK so the public institutions of the UK become the public institutions of the rest of the UK and that isn't a question of political negotiation this is the point that I think it's very important that people understand that isn't that isn't in that isn't a question to be negotiated in the event of the s hope that's a matter of law what would have to be negotiated in the event of the s vote is the equitable apportionment of the assets and liabilities and there's a distinction to be born in mind between institutions on the one hand and assets and liabilities on the other and the assets and liabilities of the UK would fall to be apportioned equitably between the rest of the UK on the one hand and an independent Scotland on the other and how that equitable apportionment would be calculated would would is a matter of politics is not a matter of law that's a matter of politics there will be a political negotiation it will be very complex very difficult very tense political negotiation and there would inevitably be trade offs between particular assets and particular liabilities there has been a lot of confusion about this it's actually fairly basic into the principles of international law as I said it's very clearly and authoritative set out clearly and authoritatively set out in the legal opinion of professors Crawford and Boyle but I'm afraid that the independence white paper gets it wrong as I say in my written evidence it's paragraph two of my written evidence at page 211 of the white paper it is stated and I quote that Scotland will be entitled to a fair share of the UK's extensive overseas properties allowing us to use existing premises for some overseas posts unquote and as I say this assertion has no basis in law the United Kingdom's diplomatic network its embassies I think it's 267 embassies high commissions and consulates in 154 countries around the world would become the diplomatic mission of the rest of the UK in the event of independence as as the United Kingdom government have correctly stated in their Scotland analysis paper on EU and international issues published in January of this year now that as I say that isn't a negotiating position it's not a matter of politics it's not a matter of opinion it's a matter of law and it's unfortunate I think that the independence white paper the most important document published in the lifetime of the Scottish government proceeds on an on an inaccurate footing as a matter of international law either legal advice wasn't taken or it wasn't understood okay how do you answer sorry yeah of course and give me a second how do you answer to dr andrew blick who's a senior research fellow at the centre for political and constitutional studies at kings college london where he said in a quote in my view there is a legal case a legal case for saying that the UK is dissolved and that there are two successor states and that was an appearance before the foreign affairs committee the house comes 16 of october and how do you answer that is this a case of him put to two lawyers in the one room and we'll get three opinions i'm not sure if andrew's a lawyer or not i don't know i mean i've met him before he's a frequent witness to various some committees in the um in the UK parliament including the one that i work for um i'm afraid i think that in this instance dr blick is profoundly wrong i think he's i think he's mistaken i think i think i think there is no there is no cred there are no credible legal grounds for believing that in the event of a yes vote the united kingdom is dissolved it's as simple and as straightforward as that there are no credible legal grounds for believing that in the event of an independence about four independence in september that the united kingdom is dissolved okay well what about professor david shaffer who's north wetterson university school of law in chicago and former us ambassadors for war crimes and senior counsel at the us representative where he said i'm not going to read the whole quote and he said let me see five point two million people the fundamental premise of scottish independence is to regain the sovereignty of p pre 1707 thus the breakup should be viewed as two successor states of equal legitimacy not size wealth or power but legitimacy i've read that um i know it's uh it's a quote that um i've seen used in numerous occasions on numerous occasions can be now and again i'm afraid that if you look at the analysis that's provided by professor scofferton boil you'll see that they take pains to look very carefully at this argument um at this particular argument which is that um the legal effect of a yes vote um would be that scotland would be recreated that scotland would revert to the position that it enjoyed pre 1707 as an independent sovereign nation state and they provide pages of analysis as to why that is erroneous in law i won't you know go through that with you now but the that that's my answer i mean professor sheffa if that's the prince's name is mistaken in international law there are no credible legal grounds for believing that um in the event of a yes vote in september that the united kingdom would be dissolved the rest of the united kingdom would be the continued estate as a matter of international law okay my final go on this one is is professor crawford and boil and their their opinion that you suggest and paragraph one of that and again in in quotations in practice scotland's status in international law and that of the remainder of that uk our uk would depend on what arrangements of two governments made between themselves before and after the referendum and on whether other states accepted their position as such matters as continuity and succession so it is a political well well convenient it's a question of international law and what what does international law say on a question of state succession international law what international law says on on a question of state succession is partly based on established principles of international law about which professor crawford knows more than anybody else on the planet frankly um there and it's also based on on on state practice i think there is no doubt that the united kingdom's allies will see an independence vote in scotland uh as a wholly legitimate creation of a new scottish state i don't think anybody who is in favour of independence need have any fear on that score but at the same time they will say that the rest of the united kingdom is the continuity state of the united kingdom i think that's fairly clear for example from the recent interventions of for example the swedans foreign minister and the president of the united states fallen flamen i'm not going to draw into legal discussions that i i'm not an international lawyer just quickly i don't think the the intervention by the president of the united states was particularly i don't think it changed anything really and i don't think it was that surprising states generally want the status quo to continue unless it's them that are wanting to change the status quo so i don't think that bears too much i would just say and you made the point yourself i think i'm not going to have a discussion of whether it's right in international law or not but i think we have to remember that uh in this type of situation and in international politics international law and international politics can become very murky and i think politics trumps international law most of the time and i don't think you can read that can't be out of the equation so i'm not disagreeing yet i don't know but i don't think you can just simply say that politics is not part of it it will be part of it it would be part of any negotiation i i i'd never have said that politics won't be part of it i mean that's i mean and but but i hope we would all accept those of us who are neutral in this debate those of us who are in favour of independence and those of us who are opposed to it we would all accept that whatever political negotiations follow uh from any yes vote in september should take place within a framework of established principles of law um that the and the idea that international power politics should trump the rule of law is one that i will feel very uncomfortable with i would hope that we could all um agree uh that the that whatever happens um to scotland's constitutional future with the yes vote or a no vote it takes place within and according to and subject to a framework of principles of international and constitutional law allison bills allison did you want back in well convenient yes i wanted to comment on that last quotation that you read out i think from professor crawford about how the international community would be very much influenced by what scotland and the remaining uk negotiated among themselves i i think that's an important point and i i would like to draw attention to a precedent where the continuator state in a new state or several new states negotiated arrangements for their international obligations among themselves politically of course and then that was accepted more or less as a legal fate to complete by the rest of the world and that was the case of the distribution of the soviet union and the negotiations which then took place among the remaining republics where the russian federation was clearly the successor state or continuator state on how to divide their military assets which at that time included nuclear weapons and they negotiated the treaty of tashkent which did leave a proportion of military assets including nuclear weapons in the other republics but also interestingly a portion among those other republics the international disarmament obligations and arms control transparency obligations of the former soviet union and once those republics had worked it out among themselves the rest of the world was actually only too glad to accept that deal bearing in mind that disarmament obligations had been very properly taken care of now my point from this is that it seems to me that even if you start from the position that there is one continuator state should that continuator state and the new state work out themselves legal and institutional fixes which are designed to protect both sets of interests and to achieve continuity the precedent is all in favour of the rest of the international community accepting that and and to me in terms of the actual national interest of both sides that that may be the more encouraging point or the point for us to focus on rhodg Campbell just wanted to just come back slightly on international law point and patrick laden qc gave a view on two successor states in 2012 to the west minister parliament a view which is subsequently changed but two reasons why he's subsequently changed in his written submission to this committee in connection our european inquiry one is general acceptance that the rest of the uk will continue as a member state in an international or general acceptance by the states carries a great deal of weight and secondly he would expect internal uk legislation which recognized scolish independence to make clear that uk you can i the king was continuing that scottland was a separate entity but he does draw reference there to pro football's opinion at paragraph 57.2 says that the attitude of the state concerned has a significant effect on how other states will regard the matter so it's a slightly circular argument so i wouldn't necessarily want to draw swords with professor tomkins but just to say that there are at least some arguments on the point. i'd like to get into a debate with all these these experts on international law i would simply say however that you know at the end of the day if you have a new state if five million people and a continuing state if fifty odd million people and they can't reach agreement even even if you accept that that argument that would be politically um possible for them to reach agreement and other states would then sign up to that if they can't reach agreement common sense would tell me that we'd probably fall back with international law at the end of the day and i think you know that would be the only point i would i would make to that and it's an excellent point well made because i'm just going to willy coffey who's going to talk about relationships with the r uk willy coffey thanks thanks very much convener just just to briefly continue this theme i'm a wee bit kind of disappointed with i think with the tone of some of professor tomkins's contributions here it's it's almost as if there's going to be a great big one fight in a battle in arguments and disagreements and aggression after independence that's completely at odds with the spirit enshrined in the Edinburgh agreement where a yes vote for independence for scotland will lead to irrespectful and understanding negotiating position on behalf of both Governments and I would say to you that you know if you're right in what you say about international law saying that the UK keeps everything and we start from scratch as my colleague Jamie McGrigor suggests here I would suggest you that that's not how it will play out in practice between two states that will respect each other because of our mutual and shared history if it's not then what's the past 300 years of the union been about has Scotland always been some kind of second fiddle subservient partner in this union I thought it was an equal partner partnership we were playing so I would rather than that kind of notion that that one party keeps everything after a divorce which is not the case I think both parties will will respect one another and as you said yourself there will be an equitable appointment of all assets and liabilities and that that will be ultimately a political decision I think between the two countries that emerge that's a respectful outcome I think that that can and must take place here convener I just say that we should be careful not to talk scotland down I mean we've not played this observant part we we've led scotland has led the united kingdom and shown right across the world so there's a danger here that this is this is a termin into a debate rather than actually an evidence garden here when you're getting points like that I like really at the table you really have to respond that in defense scotland I think I think we if we have played an equal role in the union as you and your colleagues would suggest we have done you play well okay I'm not even going to claim that I'll play an equal role in that to be respectful to everyone here at the table I think we're entitled to expect equanimity and consideration for the equal distribution of assets and liabilities after after a yes so I think that's the right proper way to approach it and that's what that's an approach that I would take from an equal point of view to respect both partners okay just be careful we're respecting each other around a table as well please if you don't mind Jamie McGregor and then professor tokens I mean the point of these sessions is is full clarification of unit and to take evidence from these experts who are around the table it's not about saying what should happen so tokens thank you very much on the edinburgh agreement first mr coffee the the edinburgh agreement commits both sides to respect the outcome of the referendum if there's a yes vote that scotland will become an independent state if there's a no vote scotland won't become an independent state that's all the edinburgh agreement says about respecting the outcome of the of the referendum it says absolutely nothing whatsoever about how the very difficult process of unpicking a 307-year-old union should proceed thereafter now I have absolutely not said what you have accused me of saying I have not said that in the event of the yes vote the rest of the united kingdom keeps everything I have made very carefully and clearly a distinction which is not of my own invention but which I find in international law which neither of us are the authors of between institutions and on the one hand and assets and liabilities on the other and I'm afraid inconvenient as it might be to some people it is a matter of international law that in the event of a yes vote the public institutions of the United Kingdom automatically become the public institutions of the rest of the United Kingdom and there's nothing any of us can do about that I have not said that that means that the UK takes everything on the contrary I have said on the on the in terms of building public institutions in terms of building public in terms of building public institutions excuse me if we don't have an argument across the table what I want to do is to try and investigate as much as possible sorry a point in order the witness is giving evidence and I think you should continue to give evidence can you let me finish please what I want to do and for this committee's purpose is to investigate how these things would work now we're talking about speaking to experts today I would want to go to Juliet to give us some of the you don't have a point of order I do you may not like you may not like the evidence but you can't just cut the evidence off I can if it's becoming contentious I'm sorry Alec I'm the convener I can decide yes it is becoming contentious and I'm not having a member of parliament and a witness in this situation so I'm sorry Juliet could you give us your interpretation of how how states would work as far as when they are negotiating I'm sorry you can't have a point of order alec I'm sorry we're moving on I can't just cut somebody off because you don't like the evidence of giving for goodness sake I'm not cutting somebody off because you don't like the evidence the evidence is becoming very contentious that's exactly what you've just done the evidence is becoming contentious and I'm sticking to the themes of this inquiry Juliet could you give us your your inputs Patricia convener I've always understood and I believe I'm correct in my assumption that the purpose of our committees is to scrutinise what the government is proposing whether it be in legislation or elsewhere I thought that was the purpose of today's session and to take from experts their views and their considered opinions as to what that might be I have no problem with any of the evidence that's been given by any of the witnesses this morning but even if I did I think I would hear it respectfully and consider it when I come to make my deliberations when the committee wants to come to report I'm really worried that we're in danger of not doing that today and I really do think we need to hear what Professor Tomkin had to say and then perhaps move on to the next issue but what I didn't want was Professor Tomkin's and Willie Coffey arguing across the table that's what I was stopping not hearing the evidence but both were arguing across the table which is not appropriate I interrupted both of them Patricia he was interrupting the witness giving evidence that's what you should have stopped not the evidence we're going to I'm going to move on because I think we need to move on and hear from the other witnesses we have in the room today I hope everyone agrees with that and we can move on Julie, could you give us your interpretation of the relationship that nations have when they do you know in a situation where they're separating and negotiating out if you could give us your experience on that and I hope Alison will do the same after you okay so okay to do that I have to reference this this debate a bit I think Scotland in the case of independence should plan for a whole range of outcomes whether it's a legal new state or not there's lots to be negotiated and I would also say that there's lots of historical precedents of even if it's a new state and I realize that that has resource implications of what it would get even if it's a new state other new state start there's there's lots of historical precedents of new states coming from successor states building up a foreign policy building up a role in the world and I think you know we've mentioned some of the ways that states can do this joining international organizations is a key way that small states first in Alison's terms seek shelters in the international world it's a way that they would start to gain diplomatic influence and diplomatic representation so that's what I would expect successor state or new state whatever the legal term is that's what I would expect the first kind of foreign policy steps would be and should be okay thank you Alison can we draw on your considerable experience of diplomatic service and how negotiations would go and how you would see it going I actually have a lot of faith in both sides of the argument both the RUK and the Scottish Government to actually go forward with a very decent and respectful I don't expect it to be an easy negotiation as Professor Tom can say but to be to be respectful but I know that you've got a lot of experience in your diplomatic service and these matters and we could draw on that if you could help us yeah thank you well thank you for asking and I speak with due regard for the sensitivity of the topic obviously as any citizen of the present UK I would hope for this to be done in a respectful and sensible way because that in itself would be an excellent example to the rest of Europe and the rest of the world where some other issues of the potential breakup of national states are being handled in a much less constitutional peaceful and legitimate way but I would maybe like to turn the the discussion in a slightly different interest direction since we're trying to clarify the issue and suggest that we look at the interests of those concerned because at the moment people have an interest either in achieving a yes vote or a no vote on the day after a yes vote were that to happen everybody's interest would be in adjusting to that new world which they might love they might hate or they might find it scary or they might find it confusing and it is typical of a small state that it cannot just think of its own interests which I think in this case have been quite clearly defined in the ambition set out by the Scottish Government but they have to try to get inside the heads of other powers and think about the other powers interests and it's quite interesting if we would then think about what are the interests of the RUK on the moment after a yes vote with all the feelings the emotions that would be in play at that time I think that at the first level there would be an interest in showing grown-up sensible peaceful behaviour but I also think there would be an interest in keeping what you might call the strategic unity of the British Isles because I cannot see that it would be in the interests of the remainder of the UK to have a weak state on its northern frontier to have a state that was an international outcast a state that was not bound by international obligations on very serious issues like fighting terrorism or proliferation or indeed human rights or the respect for contracts and I would assume that the negotiations would take place although the emotional side of it might be very difficult in an atmosphere that reflected those interests of the RUK and to the extent that that interest would exist on the RUK side not to let Scotland become a black hole or a sort of wandering beggar of the international community there would be some corresponding interests among other members of NATO and EU for example I think one can underestimate NATO's interest in keeping the unity of its operational space going through the period of the breakup of the British Isles keeping up the unity of deterrence cover and potential to operate across the space which would include Scotland and its waters so I know this is a very general point but I hope that it might also turn our inquiry in an interesting direction that that maybe has not been sufficiently explored so far. Thank you very much. Any comments or questions on that? Very briefly and echo some of Alison's point really I think the white paper in terms of the defence section certainly it does take account of some of the issues that might pertain in the event of a yes vote for the rest of the United Kingdom I think it's very very important that if Scotland becomes independent that it does respect the interests of the rest of the United Kingdom. That's important for Scotland and again my own subject in defence it's important because Scotland will require a close relationship with the rest of the United Kingdom to phase its defence forces it does not want to be in a position where they are both states are at logger hands and I think on both sides I think having talked about these discussions and talks in London the debate that is happening in Scotland is not reflected there and I think there's less understanding of it I think there's a need to be careful about the interests of both states and respect the interests of both states I have no doubt that in the event of a yes vote that both states would act responsibly but I think the onus is in Scotland for some in some instances to demonstrate respect for the interests of the United Kingdom it doesn't necessarily have to agree with those interests and it doesn't necessarily have to be bound by those interests but I think just having an approach that is collegial is the best way forward. Thank you very much we're sort of abording on time up to about 10 minutes I just want to if any of our visitors today have anything that we've not covered that they would wish to add or to clarify or expand on in these final few minutes. John Ainsley? Could I say a wee bit about the issue of NATO membership on nuclear weapons which has been made quite a big issue is and to put it in context Scotty CND's position is we're supporting a yes vote with support independence but we're also opposed to membership of NATO. Having said that I think that the problems with nuclear weapons and NATO are to some extent exaggerated. The extent to which Washington and London would be absolutely determined that nuclear weapons must stay here I think has been exaggerated. History shows a slightly different lesson. John F. Kennedy wasn't keen at all on giving Britain Polaris, Carter wasn't keen on giving Britain Trident. The recent upgrade deal was Bush and Blair in the aftermath of the Iran-Iraq war. Even in London, General Nick Houghton chief of defence staff gave a speech in December to very critical of a lot of the way that defence expenditure was going. He did not say we shouldn't be spending money on Trident and I'm not sure he will say that but its a logical extension of the position he was adopting. The static position would be that both Washington and London would say you've got to keep nuclear weapons at Fas Lane but I'm not at all sure as to how robustly held those views are if they were challenged and Scotland held its position. There's a whole range of views within NATO to expand on that but certainly there's other countries. Spain is an interesting example. Spain had a very similar arrangement to Holyloch until 1979 from the American sub-slef droater. In 1981, the Spanish Parliament had a debate on joining NATO and a condition of winning that vote was that no nuclear weapons were deployed. If that hadn't been there, the Spanish Parliament probably would not have agreed to join NATO and they then joined the following year on the basis of not having nuclear weapons deployed. I think basically there probably would be a starting point of particularly Washington and others wanting to keep the status quo of nuclear weapons deployed in Scotland. If Scotland was to hold its ground and say well we're not having nuclear weapons here which I'd say would probably lead to British nuclear disarmament, if the choice that Washington has is either a non-nuclear Scotland is in NATO or a non-nuclear Scotland is not in NATO, Washington would probably prefer we were in it and that would have a starting point but I don't have other folk wanting to come in on that. I don't think that membership of NATO for Scotland will be terribly problematic although I understand other people have different views. My argument is that there is an open door policy to NATO membership for European states if they meet the criteria. Scotland already meets most of the criteria. Neither would Scotland go to the back of the queue to join. If there are some barriers to membership, one was originally would Scotland be a non-nuclear state and have enshrined the legality of nuclear weapons in a written constitution and still be part of NATO? It can, I believe, and it has said that it would sign the strategic concept. That is the key to being part of NATO. If the Scottish Government said no we will not sign the strategic concept then Scotland wouldn't be in NATO but it has. The other issue and the main issue is the nuclear issue. It is not whether Scotland has nuclear weapons or not. I think that there will be a lot of pressure on the rest of the United Kingdom and the United States to not be seen to bully Scotland but, as Alison was pointing out earlier on, it is very important for Scotland to respect the interests of the rest of the United Kingdom in this point because it will have an impact in all of the negotiations. I do not think that Scotland should be forced to keep nuclear weapons against it as well. I do not think that the United Kingdom will want to have nuclear weapons in what would be a foreign country indefinitely. I also do not think that it is right, although I am not a sport of nuclear weapons myself, I do not think that it is right, and the white paper says that it notes this, that it is not the place of the Scottish Government or the Scottish Parliament to force the determinant of the rest of the United Kingdom. Therefore, I would say that there will be discussion over membership but it would be important for Scotland to give the rest of the United Kingdom the time to decide whether it either wants to continue with a nuclear deterrent or the time to move it. I think that the timeline given by the Scottish Government in the seven years is possible. The defence secretary Philip Hammond has said that it is 10 years. I think that it is seven to 10 years possible. I do not think that that needs to be dealt with quite quickly. Once it is dealt with, I do not see that there are many other problems to membership of NATO if that issue is dealt with properly. Alison Beals. I agree with the general line of these statements, so I would just like to throw in a couple of facts that might be interesting. If Scotland did, for example, accept a long transitional period before the removal of UK nuclear weapons, it is important to realise that Scotland could nevertheless, from the first day, apply to join the non-proliferation treaty as a non-nuclear state. You are not debarred from non-nuclear status simply because another country has stationed nuclear weapons on your territory. It's the ownership of the weapons which is decisive here. Thus, Germany has always been a non-nuclear state under the NPT despite at various times having a lot of nuclear stationed weapons. I would also like to say quite firmly that there is no connection between membership of NATO and having nuclear weapons on your territory or accepting them on your territory. The majority of today's members of NATO have never had such weapons on their territory. Indeed, in 1997 NATO assured Russia that none of the new members after the Cold War, which includes, by the way, the eastern half of Germany, would have any nuclear objects on their soil. That was a limitation that NATO imposed on itself rather than a matter of countries trying to wriggle out from their nuclear obligations. Scotland's position would not be so peculiar in NATO terms, and it would be able to declare itself a non-nuclear state with UK nuclear weapons still on its territory. Mr Asimson, just to say, convener, that reflecting again on the discussions a little bit earlier, that the UN Charter or the statutes and frameworks that set up international inter-governmental organisations don't generally deal with state succession. That is a matter for international customer law, which has been discussed. But when we discuss defence, the starting point has to be the charter of the UN, which again, in the first line of its preamble, says very clearly that the purpose, we the people of the United Nations, determined to save succeeding generations from the scourge of war. The purpose of the international community is to keep peace. The charter of the UN provides, under Article 51, a very limited exception in relation to defence, and NATO is set up under that. Scotland's engagement with NATO, whether that's as part of the UK or independently in Scotland, we need to take our human rights obligations into that. That includes ensuring that any defence personnel are fully trained in international humanitarian law and the laws of conflict. That obligation resides here in Scotland. While there can be discussions about how Scotland constructs its defence, that is not negotiable. It is the obligation to ensure that any defence personnel acting at the UK or Scottish level have that as their starting point. Thank you very much. We are just about out of time, but I want to make sure that all of my colleagues are on the table. I don't know if you have any final points to add, Professor Tomkins, if you want to add any of the colleagues on the table, if you want to make any final points. Professor Tomkins. To make one final point, convener, thank you, and that is that one issue that has not been discussed in the conversation this morning, which I've enjoyed and thank you for inviting me and allowing me to participate, for the most part, is costs. The reason why this distinction between institutions and assets and liabilities, which you did not allow me to finish explaining in my earlier response, which was a response to correct the record having my earlier evidence having been misrepresented by a member. The reason why this matters is not because it's an arcane point of international jurisprudence. It's because if the white paper is, as I believe it is, wrong to say that Scotland will automatically, and independent Scotland, excuse me, would automatically be entitled to its fair share of UK overseas properties, then it's obviously the case that Scotland is going to have to develop these networks, develop these properties, find diplomatic staff, train them, pay them from its own resources, and these are part of the inevitable start-up costs of an independent Scottish state, which the independence white paper famously says nothing about, and I do think that it would be, if I may respectfully say so, remiss of a committee such as this, which is charged with the responsibility of safeguarding the public purse, not to consider the cost implications of the issues that we've been discussing this morning. I do reason why I needed final comments so that we could pick up some things. Sorry, Clare Adams is going to come in first, and then Rodd Clare. It was just in relation to the costs, as led out by Professor Tomkins, but obviously the other side of that is that Scotland already pays for its share of the international embassies at the moment. Actually, in the white paper, it says that they expect that the international costs for Scotland, as led out with the priority areas, at least would actually be less than its current contribution to the UK embassies, as they stand at the moment. Obviously, if the embassies no longer have responsibility for the great work that they do on behalf of Scotland, in some terms, their relationship changes as well, and that they will be able to sustain that level of representation and number of staff and all the rest. Really, would it not just be in the best interests of both areas that a negotiation and a sharing of those assets was done in order that they could continue following an independent Scotland? Would it be in the best interests of an independent Scotland and the rest of the UK to co-operate fully in the event of Scottish independence? Of course it would. Would that happen? Yes, it would, but it would not happen on the unilaterally declared assertions of one party. That is not how negotiations work. I am sure that agreements could be arrived at between Edinburgh and London, between Edinburgh and a range of other foreign capital cities, as to the sharing of diplomatic premises. However, those things do not come free. There would be a fee attached, as there is under the European Union in terms of cultural sharing arrangements. In the union at the moment for Scotland, because we contribute to the current system. I have no doubt that these things could be accommodated. I do not know what the costs are. I have to say as a citizen that I am disappointed that the Scottish Government has not furnished those costs. I think that it is their responsibility to do so, and I think that it is Parliament's responsibility to keep pressing on that question. My sincere apologies for interacting. I did not mean to do it. I was just making the point that we already paid for the current system at the moment. My apologies for interacting. I think that Professor Tomkins makes a very good point about the costs, and perhaps the committee would wish to write to the Scottish Government and ask for an analysis and breakdown of what it estimates the costs might be. I think that it would help to eliminate the debate around these issues. When comments are made around the table, I think that we are entitled to respond to those. In particular, the comment that I was responding to was Jamie's comment about the startling from scratch issue, which led to a discussion about what that might mean and so on and so forth. I mean, when you're ultimately talking about a breakup of assets and liabilities, I mean, if one party by law keeps all the assets, then presumably by law that party also keeps all the liabilities in all the debts. So I wonder if that's a standpoint that members would agree with. It's certainly not a position, I would support a position where we both agree a sensible agreement and carve up of all assets and liabilities after independence, but you can't have it both ways. If you're going to keep everything and make Scotland start from scratch, I'm afraid you have to think about keeping all the liabilities and debts that you've accrued on our behalf as well. I think that's something that Patricia is very good at. I've lost my words now, so I suggest to write to the Scottish Government and then there is obviously no ground there for maybe looking at assets and liabilities as well as the costs then. I'm happy to do that. Jamie. Thank you, convener, for lying me in. I just want to say that I asked, in my view, a perfectly legitimate and important question, and obviously with respect to Mr Coffey, he has every right to give his opinion on it, but also to any of the witnesses, in my view, have the right to complete their evidence. I want to make a protest that, on this occasion, you stopped, convener, a witness in midstream from completing his evidence. I'm glad that this is in the public domain today. Yes, Jamie, absolutely. We obviously have nothing to hide in this committee, but what there was was a dual exchange across the table, and that's what I wanted to stop. When we came to the end of our residence, that's why I wanted Professor Tomkins to come back in and finish what he had to say. I was very keen to hear what he had to say as well, but we did have a bit of a spark going on, and we needed to calm that down to move on. Can I take this opportunity to thank everyone who has given evidence at committee? It's obviously a very emotional and sparky debate that's going on for everybody, both sides of the argument, on many, many topics. If, as I said earlier, if you have additional information, I know that both sides of the human rights argument would be something that would be very interesting personally, and I think that the committee would be, but any of the other arguments that's been heard around the table today, if anybody's got anything additional to add, that would be very helpful in our deliberations, and I can thank you all very much. And thank you, Alison, for joining us from Iceland. Thank you very, very much, and we look forward to hearing from you again. Thank you. I believe that our next committee meeting is 26, where we'll hear from the minister, Hamza Yousaf, on all of the topics that we've discussed in more three one-off sessions, and I now close the meeting. Thank you.