Oral evidence: The Referendum on Separation for Scotland, HC 140-xxWednesday 9 April 2014

Oral evidence, 9 April 2014.

Witness

James Brokenshire MP, Minister for Immigration and Security, Home Office, gave evidence.

Chair

Could I welcome you, Minister, to this meeting of the Scottish Affairs Committee? As you are aware, we are investigating various aspects of separation, in particular the series of papers produced by the UK Government on the question and the various aspects thereof. Could we start off by asking you to outline to us what you believe happens to the land and maritime borders between Scotland and the UK if Scotland decides to leave the United Kingdom?

James Brokenshire

Mr Davidson, can I say it is a pleasure to be back before this Committee? I had not originally anticipated that I would be here in my new role, but I am delighted to respond to the analysis paper we published on borders and citizenship. At the outset, it is worth underlining that, if people in Scotland voted in favour of leaving the UK, an international border would be created where one does not exist today, and that does have quite profound implications for Scotland and the continuing UK in those circumstances. If I look at how we manage the UK’s border at the moment, it is complex. It relies on an integrated system that is intended to manage the whole of the UK. We undertake a proactive and active response in managing the movement of goods and people between Scotland and other parts of the UK, and currently that is unhindered. If there were an independent Scotland, there would be an international border. You would have two separate countries in existence at that point; therefore, there would need to be a border between the UK and Scotland. The question is what that border means. I am sure we will come on to this. If Scotland were part of the common travel area, or if Scotland were part of Schengen, that border would take different characteristics, but at its essence there would be an international border with implications for goods, services, businesses and people. Therefore, the suggestion that in some way the status quo would continue is simply not the case.

Mr Reid

Obviously if Scotland became independent, there would be an international border between Scotland and the rest of the UK. What do you anticipate that would mean for the movement of goods and people between Scotland and the rest of the UK?

James Brokenshire

I think it is about understanding what the policies of the Scottish Government would be, and indeed whether Scotland was part of the EU. I hesitate to tread on ground you will have covered in the last session, but there is an important and significant issue about Schengen membership or not. If Scotland were part of the EU and part of Schengen, in those circumstances it would be under an obligation to secure the external Schengen border. Therefore, it could itself be under obligations to put in place border checks, border controls and everything that that brings with it. It is a question of the analysis and approach of what an independent Scotland’s position would be vis-à-vis the EU and Schengen, and also any arrangements it was able to negotiate for a common travel area. I am sorry that is a rather long answer to your question, but different scenarios would have to be analysed, and I can try to talk through each of those as to what that might mean.

Mr Reid

If we assume what I think most of us regard as the best possible situation, which is that Scotland was not part of Schengen but was still part of a common travel area with the rest of the UK and Ireland, what would the presence of the international border mean in that situation?

James Brokenshire

The common travel area as it exists between the UK, the Republic of Ireland, the Isle of Man and the States of Jersey and Guernsey operates outside Schengen. The UK and the Republic of Ireland have a permanent opt-out from the Schengen border areas. There are certain co‑operation issues to which we are party, but ordinarily there are no routine immigration checks on passengers travelling within the common travel area. There are certain exceptions to that. If you travel by air to Dublin, there may still be a check conducted to confirm that you are able to benefit from the common travel area, but ordinarily passengers would not be subject to those same checks; it is a free travel area. On goods that transfer, there may well be the development of different excise or tax arrangements. As we have seen in the land border between Northern Ireland and the Republic of Ireland, there is the potential for people to seek to exploit that. Concerted effort is undertaken on things like fuel transfers, and that abuse is very much the focus of law enforcement and other agencies. It is free travel in a broad sense within the common travel area for you as an individual. It is also worth underlining that, if you are travelling from outside the common travel area, it may not mean you do not need potentially two visas to transfer from one country to another. It is quite complex, but ultimately for citizens who are within the common travel area in general terms they would be able to conduct that free travel.

Mr Reid

The Scottish Government are on record as saying that they would cut fuel duty significantly lower than the UK rates. If that happened, what implications do you think that would have for cross-border trade?

James Brokenshire

It is incumbent on all member states of the EU, and for this purpose I will take it that Scotland is able to negotiate its way into Europe—

Mr Reid

Yes. We are assuming the best possible situation.

James Brokenshire

The best possible situation is that there are no abuses of free movement, and that is also in respect of illicit and prohibited goods; in other words, you are able to put in place policing and security arrangements. There is always a risk that when you have borders and separate countries it brings with it different bureaucracy and the potential for organised crime to exploit that. Therefore, both in the continuing UK and, I would expect, an independent Scotland there would need to be proper border policing and a focus on those people who might seek to abuse or take advantage of different rates of tax, or different bureaucracy, to try to get around that, with potential risks on either side of the border. While there is free movement of goods within the EU, that does not preclude the possibility of a member state putting in place controls to prevent crime. We have seen that in the past. One example would be that from July 2011 Denmark has deployed customs officers at crossings on the German and Swedish borders to curb cross-border crime and illegal immigration. Even if you have a common travel area, you still have to focus on potential criminality or other abuses.

Mr Reid

Having looked at the best possible situation, if Scotland was not successful in negotiating an opt-put from Schengen, what would be the implications at the border?

James Brokenshire

I do not think there has been a new entrant to the EU since 1999 that has secured an opt‑out from Schengen, but putting that to one side—

Chair

Has anybody who has joined the EU since 1999 sought a derogation from Schengen?

James Brokenshire

I am not aware whether anyone has necessarily sought it. That is not to say it could not be done.

Chair

It is not quite the same thing.

James Brokenshire

I would not want to say it is not possible, but I state as a matter of fact that that has not occurred since 1999. If it was not possible, in those circumstances an independent Scotland would have to put in place its own border arrangements to secure that external border. Because the continuing United Kingdom is not part of the Schengen area, it would itself need to put in place those arrangements to have border controls, and therefore to control that land border between the continuing UK and Scotland.

Mr Reid

What would that mean in practice when people wanted to cross that border?

James Brokenshire

In essence, it would mean the controls that you would see on other land borders within the EU. For roads, that would imply border checks and crossings. You would have to have your passport and visa checked at that stage. Equally, on trains there would need to be border control guards to check that the right passport and documentation was in place. They would be the basic sorts of things you would expect if you were confronting a frontier.

Mr Reid

Take the scenario where there was a gap between Scotland becoming independent and becoming a member of the EU. If Scotland was outside the EU and the continuing United Kingdom was inside it, what implications would that have?

James Brokenshire

If there was a gap, it would depend largely on the approach an independent Scotland would seek to take on a range of policies. To take the common travel area analysis, that is predicated on broad convergence; independent countries will still maintain their own policies but with broad convergence, particularly on issues of security. It is important to recognise that the UK and the Republic of Ireland signed a memorandum of understanding back in 2011 seeking to converge our approach in relation to security infrastructure and security arrangements. It is looking at it in terms of what the approach of an independent Scotland would be. It may seek to negotiate some sort of arrangement with the continuing United Kingdom, but we would need to look very carefully at what border arrangements may be appropriate, given that you are in essence talking about a country that would be outside the EU and, therefore, our obligations in those circumstances.

Mr Reid

Having looked at the border between Scotland and the rest of the UK, let us look now at Scotland’s other external borders. Again assuming the best situation—Scotland is in the EU but not Schengen—have you done any estimates of what it would cost Scotland to have sufficient border controls on its external borders?

James Brokenshire

The short answer is that we have not. What I can say to the Committee is that the total expenditure on our border arrangements, which cover things like Border Force, immigration enforcement to deal with organised immigration crime and the removal of those who should not be here, and Visas and Immigration, processing visa applications, is about £2.1 billion and involves about 20,000 people. There are officers within Scotland who conduct part of those functions, and, if it would assist the Committee, I have some figures on the number of people engaged by each of those different commands located in and based in Scotland, but that is not the whole picture. We have offices around the globe that process visa applications. Most visa applications to come to this country are processed in Sheffield and London. In being part of the UK there is also a benefit in having the ability to have visa waiver arrangements when you travel externally. There are no guarantees that an independent Scotland would be able to take advantage of the same arrangements that the United Kingdom currently holds. It would be for an independent Scottish state to negotiate those arrangements with other countries round the globe, and think about how it would provide those types of services externally from Scotland in terms of visa applications it might need to process for people wanting to visit Scotland.

Mr Reid

Assuming that Scotland had negotiated a common travel area with the continuing UK and with the Republic of Ireland, what implications would that treaty have for Scotland when it came to assess visa applications by people wanting to visit Scotland?

James Brokenshire

In terms of a common travel area, each country has its own rules and regulations, rightly, that it would seek to accede to, but in a common travel area there needs to be broad convergence, as I think I indicated. Therefore, we are currently working with the Republic of Ireland, in pursuance of the memorandum of understanding signed back in 2011, to look at ways in which we can further strengthen those arrangements for security co‑operation. There is a joint programme of work to increase the security of the external common travel area border; co‑operation to align the list of countries whose nationals do not require a visa to travel both to the United Kingdom and to the Republic of Ireland; and exploration of the potential for a possible UK-Ireland common travel area short-stay visit visa. Independent countries will have their own policies and approaches, but for an independent Scotland to be part of a common travel area it would need to negotiate that with the other members of that common travel area and, as part of that, have a broad, similar approach to ensure that the common travel area works, is supported and has that clarity to it.

Sir James Paice

Following that line, the Scottish Government have made it clear in their own White Paper that they propose to run a different immigration policy to attract more people of working age. Let us assume there is a common travel area. Is it really feasible that they could run such a different policy?

James Brokenshire

It is important to note that, in doing that, Scotland would be taking a markedly different approach from that undertaken by both the United Kingdom and the Republic of Ireland, where both countries’ focus is on attracting scarce skills but they are not seeking to grow the population through immigration, which from my understanding and reading of the paper by the Scottish Government is what they are intending to do. From a United Kingdom standpoint, we could not see an independent Scotland having a markedly different immigration policy and simply, therefore, accept a risk that people might seek to exploit that more relaxed policy and different approach and use it as a route to travel to the continuing United Kingdom. If we were faced with that scenario, we would have to put in place border controls and checks to maintain the integrity of the continuing United Kingdom, and the policies we have successfully put in place over the last few years. To think that an independent Scotland could say, “Well we want to be part of a common travel area,” but then take a markedly different approach and assume there would not be any implications, or that we would not have to consider that, would be wide of the mark.

Sir James Paice

Can I take you back to the whole issue of the common travel area and/or Schengen? Does the Home Office have a view on whether an independent Scotland could opt out of Schengen in acceding to the EU and remain in the UK common travel area?

James Brokenshire

It is probably difficult to go much further than what I have already said. We can point to history to say that that has not occurred, but if the continuing UK was in a situation where Scotland was seeking to negotiate some sort of opt‑out on Schengen, I do not think that in principle we would seek to be other than broadly supportive. From a continuing UK standpoint, having a common travel area would seem to be the most appropriate way forward, but that is predicated on the issue of coalescence and convergence on security and broad immigration policy. Obviously, if Scotland were part of Schengen it could not be part of the common travel area in those circumstances.

Sir James Paice

Can we be precise about it? If they were required to join Schengen and could not opt out, what would that actually mean? Would it mean that Scotland, and us presumably, would be required to implement full border controls, including closing off many of the highways and byways by which people freely flow over the border at the moment?

James Brokenshire

I think it would have profound implications for the ability to travel as people are able to do now within the United Kingdom, because of the obligations that would be placed on the Scottish Government to secure that external border. The EU may give time for Scotland to be able to meet those commitments and obligations, as it has done with other new entrants to the EU, but ultimately there would be that obligation to move to a position where the external Schengen border was secured and upheld.

Sir James Paice

Presumably, because that would be the UK’s border effectively, equivalent to the channel or whatever, we would also have to spend money on securing the border.

James Brokenshire

Clearly, the continuing UK would want to ensure that its border was secured in that way, so that issues of potential immigration or other abuses were properly met.

Chair

If Scotland joined Schengen there would be an obligation for Scotland to create an external secure border. There would be no such obligation on the rest of the UK to do so. It might wish to do so, but there would be no obligation on the rest of the UK to do so. Is that correct?

James Brokenshire

The obligation would be on Scotland to do that in the terms of its Schengen membership.

Chair

When you speak of a secure external border, there is the image of a fence or something similar, but presumably this is all risk-related. I am not clear what the external boundary is between Finland and Russia, say. Is it all fenced and guarded throughout hundreds and thousands of miles, or is it just a line on a map?

James Brokenshire

I confess that equally I am not familiar with the Finland-Russia border myself, but there are obligations to secure your border. The focus of that will be on rail and road crossings. Even if we look at the common travel area itself, between the Republic of Ireland and Northern Ireland it is a very different scenario. Equally, history paints a different picture, but there would be obligations to ensure that, in essence, because of the right of free movement—to be able to travel all across the Schengen area once you are within it—for those reasons there are obligations placed on member states to secure the external borders, so that it does not become a vulnerability for the whole of the EU at that point because of the free movement.

Chair

Jim was moving on to something else, but I wanted to be clear as to what “securing the border” actually means in the context of the Cheviots.

James Brokenshire

In essence, I think it means a focus on the primary routes in and out of the country—in other words, your road routes—and putting border checks and border controls in place, but also having proper border policing that examines other risks and vulnerabilities to your border in that sense.

Sir James Paice

As was touched on earlier, presumably it would mean almost certainly, for reasons of practicality, closing off a lot of current accesses. You would not put border controls on every little lane.

James Brokenshire

It is difficult to see how it could not mean that.

Chair

What does “It is difficult to see how it could not mean that” mean?

James Brokenshire

I would say yes, it means creating a border where there are border checks so that, if you cross it, you would have to have your passport or visa checked.

Chair

That would be an obligation on Scotland to close many of these routes into England.

James Brokenshire

Those are its obligations as being part of the Schengen area.

Mr Reid

We are focused on the land border between Scotland and England, but another international border would be the north channel between Argyll and Northern Ireland where in the summer yachts sail freely back and forth. What checks would Scotland have to put in place in that regard?

James Brokenshire

Establishing and agreeing where an international maritime border would be is quite a complicated issue. The Scotland White Paper talks about that in quite general terms and says it will be a matter of international law. History will tell you that agreeing precisely where boundaries are or reside can lead to significant uncertainties for many years. I was reminded that there is still not necessarily complete agreement between the US and Canada on their maritime borders. It can be informed by history, and there are various pieces of legislation that govern fisheries rights and various other things, but setting out where, say, an international border would be between the continuing UK and an independent Scotland would involve a great deal of detailed negotiation and, I suspect, many years of uncertainty as to precisely where that would reside.

Mr Reid

If a yacht was to sail from Northern Ireland to Scotland, what would they have to do? Would they have to report to a customs house on the Scottish side? What would be the practicalities?

James Brokenshire

If a yacht or boat lands on your border, there are reporting obligations. As we do now, you have a border force that seeks to uphold that external border. One thing that Scotland continues to benefit from at the moment is the cutter fleet of Border Force; there are about five cutters that, in essence, look at interdictions against those people trying to enter illegally or transfer drugs into the country. That can be tasked on a national basis. For example, while one cutter is based currently in Scotland, if you have a significant operation you can draw upon all the resources and deploy a number of cutters to act against a specific threat, or on specific intelligence. It is having capabilities in that sense, to be able to uphold your international boundaries and borders and have the resources to do so.

Sir James Paice

I am going to move to the alternative scenario, which is that Scotland would remain within the common travel area. Can we be a little more precise about what that would actually mean for the land border between Scotland and England? Obviously, it would be demarked as it is now, but would there need to be border controls of any sort?

James Brokenshire

In a world where there was agreement between the continuing United Kingdom and Scotland—it is important to note that this is not somehow a given in those circumstances; it would need to be subject to negotiation—and if there was broad coalescence, it is possible to envisage a situation where there may not be those hard border checks and border guards in place. The difficulty is the point you highlighted, which is the stated Scottish Government policy of growing the population of Scotland by way of immigration, and therefore the significant issue that raises for the continuing UK and how we would insist on there being a border to secure the continuing UK in those circumstances.

Sir James Paice

That would be our decision rather than theirs.

James Brokenshire

It would.

Sir James Paice

Alan touched earlier on fuel duty. The ones everybody talks about in terms of other borders are tobacco and alcohol duties. Would the same apply? In a common travel area, would it be possible as part of the negotiations for Scotland and the UK to have different rates of duty?

James Brokenshire

Yes.

Sir James Paice

That would be part of the negotiations.

James Brokenshire

The point is that that would then provide a potential opportunity for others to exploit it, which is why you are then looking at the work of your policing and your border force. The UK has the benefit of the National Crime Agency looking at intelligence and what it is telling us. It is those capabilities you would need to ensure that exploitation of those differing rates does not happen. The work of our Border Force and others in securing millions of pounds of revenue from the seizure of illegal tobacco, as you rightly highlighted, underlines the challenges that reside, and that could become more acute between an independent Scotland and the continuing United Kingdom.

Sir James Paice

I turn finally to the slightly more technical area—although in this context we shouldn’t use the word “area”—which is the dispute between what the Scottish Government have said in their White Paper and what the UK Government are saying in their “Scotland analysis” paper about the whole issue of Schengen versus common travel area. The Scottish Government are saying, “There are absolutely no grounds to believe that the EU would challenge Scotland remaining part of the common travel area rather than joining the Schengen area,” whereas the UK’s document claims that Scotland would first have to get an opt‑out from Schengen before applying to rejoin the common travel area; in other words, it would first have to leave the common travel area. Do you have a further view on that? Is there a risk that an independent Scotland could find itself falling between two stools, neither part of Schengen nor part of the common travel area? There is a clear dispute between the two Governments over this.

James Brokenshire

I can point only to what the European Commission have said about the situation. If a territory leaves part of a member state, they would treat that, rightly, as a new country, but that new country would need to apply for membership of the EU. As part of that, there would need to be a negotiation of the terms of that membership, and it would need to be agreed by all member states. Therefore, if member states said there should be an opt‑out from Schengen, that would need to be agreed by all member states. There is a significant challenge for an independent Scotland in those circumstances, in securing membership of the EU and on what terms. I have clearly set out that you cannot be in the common travel area and in Schengen. If that was insisted upon, they would not be able to be within the common travel area.

Sir James Paice

This is the key point.

James Brokenshire

There is also the timing of it, and the gap.

Sir James Paice

Would they have to leave the common travel area in order to apply to the EU and negotiate out of Schengen, or could they remain within the common travel area until such point as they either had to join Schengen or got a dispensation not to join Schengen?

James Brokenshire

There could be another scenario where Scotland was able to secure membership of the EU, negotiated its way in and accepted that it might have to be part of Schengen but there would be a transition period. You could envisage a scenario where, prior to joining Schengen, a common travel area could exist in those circumstances. A number of different scenarios could apply, as well as there being a gap between an independent Scotland coming into existence and then being part of the EU, if it was unable to negotiate and secure that. It is clear that there could be a number of different scenarios, which equally make it quite difficult for the continuing UK to know and plan what the approach would be—not that we are planning or doing anything at this stage, because it is right that the Scottish people have their say.

Chair

Could I try to tie up one or two points about which I am not entirely clear? I am assuming that in general terms it is in the UK’s interests to have a common travel area with Scotland, subject to the sorts of points you raised about security, crime, immigration, excise duties and the like. In general terms, the UK would not veto any opt‑out of Scotland from Schengen, subject to those points being agreed. Is that fair?

James Brokenshire

I will make the customary response that we are not contemplating this line, which is what you would expect me to say, and therefore we have not done the planning or thinking on that, but in broad terms there would be equal benefit to the continuing UK and Scotland in having Scotland within a common travel area.

Chair

Can I come back to the question of immigration? We understand the Scottish Government’s policy is for mass immigration to meet the cost of the pension crisis. There is no issue about migration from the EU since that cannot be controlled anyway, so we are discussing non-EU migration. If people wish to travel from Scotland to work, say, in London, as many migrants in the past have done, simply having barriers on the roads and the railways will not stop anybody, because all they need to do is leave the road, walk round and get picked up by a car on the other side of the border post and drive on.

James Brokenshire

Visa controls would need to be established. No doubt Scotland would have a different visa regime as contrasted with the continuing United Kingdom. Therefore, there would be policing and Border Force requirements to secure the border in that general sense. As we know, it is a land border and therefore routes through it will be by road, rail or across land that may not have a road or a direct connection in that sense. While we are talking here about hypotheticals, a combination of different resources could be brought to bear on hard borders—roads—with barriers and checks to see whether you have the right accreditation and visa to enter the continuing UK, or vice versa, because no doubt a Scottish Government would want to ensure that their immigration controls were upheld. There may be people who are seeking to flee removal from the continuing United Kingdom, in the upholding of our own immigration policies, and the Scottish Government would want to prevent individuals from entering Scotland in those circumstances.

Chair

In all of this I am assuming that there is a distinction between legitimate and illegal migration. Legitimate and legal migration can presumably be handled not only by the methods you indicated but also by people having to show various papers when they turn up to seek employment, and all the rest of it.

James Brokenshire

Yes.

Chair

The issue is illegal trafficking. The issue that concerns me and that I want to clarify is the nature of the negotiations there will be between the UK and a separate Scotland about the terms of entry to a separate Scotland. My understanding—I would be grateful if you could clarify it—is that, effectively to maintain the common travel area, the UK and Ireland have a deal whereby the UK has a veto over Irish immigration policy. If Irish immigration policy was unpalatable, the UK could simply withdraw from that common travel area, and the same would therefore have to apply to a separate Scotland.

James Brokenshire

I should make it clear that there is no veto. The Republic of Ireland has its own clear immigration policies that it sets itself. I suppose there is a broad sense, which has been developed over many years, on how we have co‑operated and worked together in our mutual interest, so I would not characterise it in those terms in any way.

Chair

A consensus has developed, but there will be no such consensus between a Scottish Government intent on mass immigration to meet the cost of a pensions crisis and the rest of the UK. Clearly, there is an incompatibility, and I am trying to clarify whether or not a common travel area in those circumstances is policeable.

James Brokenshire

You are right to highlight what appears to be a clear divergence in immigration policy in the Scottish White Paper, which is a desire to grow skills and deal with a demographic and age-related issue through immigration. Put to one side how that would work and operate, because that would be a matter for an independent Scotland. It is difficult to see, if there is such a stark difference between a continuing United Kingdom and Scotland in those circumstances, how it would be possible for us to find acceptable terms for a common travel area, and the obligations that the continuing UK would face in seeking to secure the border between it and Scotland.

Pamela Nash

To explore that further, if Ireland decided to vary their immigration policy a bit wider from the UK policy, would that affect the common travel area as it stands?

James Brokenshire

The only way I can answer that is by saying that that has not been and is not the approach of the Republic of Ireland. We have had very good, close co‑operation over many years, which obviously has great history attached to it, and equally is evidenced by the memorandum of understanding where we are looking at ways in which we can work closer together on our visa processing, some of the approaches we take on security and how we ensure that people who may be a threat to both our countries are denied entry. The direction of travel is very much in the opposite way, so it is difficult to contemplate circumstances in which there would be that stark divergence in the way we are currently seeing it.

Pamela Nash

I am not suggesting that the Irish Government are about to announce that on their state visit to the UK. I was just trying to look at the possibilities for what the relationship would be between a separate Scotland and the UK.

James Brokenshire

There is a strong sense of shared interest and approach, which has been successfully achieved for many years and is growing even stronger, between the Republic of Ireland and the United Kingdom in the common travel area relationship. The genuine challenge that we have, based on what the Scottish Government have said on their immigration policy, is how that could work in the common travel area, given the likely flows of people who might seek to take advantage of a much more relaxed immigration policy within Scotland for the sole purpose of coming to the continuing United Kingdom. That is the significant challenge and risk that a continuing United Kingdom would face. I cannot see circumstances where we as the continuing United Kingdom would not insist on having strong border arrangements to ensure that the ability to take advantage of a more relaxed regime did not have profound implications for the continuing United Kingdom.

Chair

Is it not possible to say, again distinguishing legal and illegal migration between Scotland and England, that Scotland, even though it is going to have mass immigration, is hoping to have those with certain skills and abilities who are therefore unlikely to be working in the black economy or without proper paperwork? In reality, the normal policing system of requiring national insurance certificates, paperwork and so on for England, Wales and Northern Ireland would be sufficient to cope with that. I concede that it would not be sufficient to cope with illegal travel; that would depend, however, on people who had come in with skills going to the black market for employment, which is less likely.

James Brokenshire

That would still presuppose the need for border checks and for that hard border to be there. I take one example that may assist the Committee. Looking at what the Scottish Government have said on students, and their desire to change the approach on post-study work, until 2008 Scotland had its own dedicated post-study work route—a legal route into work. It was called the Fresh Talent: Working in Scotland scheme, but it ended up being stopped because students chose to move to London and the south-east to look for work after joining the scheme in Scotland. I take that as just one example of what we have seen in the recent past where people seek to use a Scottish route to come to work and live in Scotland, and whether that would remain in these circumstances.

Chair

Would it not be possible to have the equivalent of the fresh talent initiative applying to a separate Scotland, whereby people’s access was restricted to Scotland, and their certification and visa—what you will—would not allow them legally to work in the rest of the United Kingdom?

James Brokenshire

When you look at the challenge that has been faced, as we have seen in the UK with people seeking to exploit the student route and not study but to come and work and stay on for many years, it is difficult to see how the continuing UK, which has taken steps to uphold that, could simply say that it was acceptable to have a scenario where flows could happen and a route could be taken advantage of. That puts further pressure on immigration enforcement. Having changed the regulation and the systems to uphold a clear student route and a postgraduate route on meeting certain salary thresholds, effectively to have that exploited through a different way would put further emphasis on the need to uphold that and, therefore, the enforcement work that would be required. If you look at all of the policies together, it is that enforcement route—seeing that the continuing UK’s policies were upheld—if Scotland, in a common travel area, was pointing in a very different direction in terms of the lawful immigration route, as well as issues of unlawful immigration, that might crop up.

Chair

Can I clarify whether, in the event of a decision by Scotland to become separate, the question of—not quite harmonisation—compatibility of immigration policies would be one of the issues on the agenda?

James Brokenshire

Yes, most definitely.

Chair

That would be part of the negotiating process, along with Trident, sterling and everything else, for the period following a referendum decision.

James Brokenshire

In considering the potential for a common travel area and the negotiations that would take place, coalescence and a broad, consistent approach in relation to immigration policy would be a significant factor in informing the approach that would be taken by the continuing UK in those circumstances.

Mike Crockart

I turn now to a different subject: citizenship. I start with a fairly basic question. Ultimately, who decides who is Scottish and who is British after a yes vote?

James Brokenshire

It is for independent countries to set their citizenship policy. In those circumstances, who would be treated as a citizen of Scotland would be a matter for a Scottish Government in an independent Scotland, and who would be treated as a UK citizen would be a matter for the continuing UK Government. It is not a question of negotiation; it is a question of the state asserting who its citizens are.

Mike Crockart

Let’s look at the White Paper. The position taken by the Scottish Government is that it is based very much on residency. The address you are living at on independence day plus one decides which country you are a citizen of, so even non-Scots-born living in Scotland on independence day plus one would be Scots. Is it a legal way to go forward to declare, “Regardless of where you were born, you are now a Scottish citizen”?

James Brokenshire

I do not think you could characterise it as illegal. It would be for a Scottish Government to determine how they set their citizenship route. We have seen the White Paper; it says a British citizen “habitually resident in Scotland on day one of independence” would automatically be a Scottish citizen, whether or not that individual wanted to be a Scottish citizen. At this stage it is difficult to know, if you were in that situation, whether you would have a right to renounce that, for example. You may not choose to. It is equally a question of whether there are additional obligations that may be placed upon a Scottish citizen, which again is not clear, but ultimately in an independent Scotland it would be for the Scottish Government to determine their citizenship rights.

Mike Crockart

Equally, it would be up to the rest of the UK to decide on their citizenship, so would UK citizens resident in Scotland automatically lose their UK citizenship, or would there be potential for dual nationality?

James Brokenshire

Clearly, that would be a matter for a continuing UK Government. I would not wish to set the policy of a continuing UK Government in the future. Ultimately, the continuing UK Government would need to consider whether all British citizens living in Scotland could retain their British citizenship upon independence. As a country, I think we have always had a fairly broad approach, saying that people can be dual citizens. I would say that that is unlikely if you look back at history and the approach we have always taken to citizenship, but it would be open—

Mike Crockart

What is unlikely?

James Brokenshire

It would be unlikely that British citizenship would be taken away from someone who was a British citizen in an independent Scotland, but it would be a matter for the continuing UK in the future to continue to assess that. Certainly, from where I sit at the moment it would seem unlikely that the continuing UK Government would take any step of that kind, but ultimately it is for the UK Government to determine its citizenship rights and how they are set.

Mike Crockart

But the reality of that would be that all Scottish citizens would automatically retain their British citizenship on independence day plus one.

James Brokenshire

Yes.

Mike Crockart

And their immediate descendants.

James Brokenshire

Yes. You fasten upon an important point. One of the profound implications of an independent Scotland is that British citizenship passes to the next generation, so as the child of a British citizen you are able to apply for British citizenship, but not beyond that. If you are a grandchild not living within the United Kingdom, in those circumstances there aren’t those rights to seek British citizenship. In those circumstances, it is quite profound that, if you are a British citizen not within the continuing United Kingdom, British citizenship could be passed to your children but not to your grandchildren.

Mike Crockart

We end up with a kind of bubble effect, where you have all the current UK citizens, and any of them living in Scotland who have children in Scotland would retain UK citizenship, but thereafter it starts to peter out.

James Brokenshire

Yes.

Mike Crockart

What about descendants of Scots living elsewhere in the United Kingdom? Under the plans, they would be eligible to apply for Scottish citizenship. What would that mean for their UK citizenship? Would there be a direct effect on it, or would they just retain their UK citizenship automatically?

James Brokenshire

As I think I said, we have maintained a situation where people are able to have dual nationality, so if someone had sought to apply for Scottish citizenship—although I just question the comment about applying for this. If I can get the White Paper in front of me, I think it states a slightly different scenario from the one you have painted. It says, “British citizens born in Scotland but living outside of Scotland on day one of independence” are “automatically…a Scottish citizen.” There are two automatic routes. We then move on to the steps below that: a child “born in Scotland to at least one parent who has Scottish citizenship” is “automatically…a Scottish citizen.” There are further steps where you are able to apply. It is possible to have dual citizenship, so in those circumstances it would seem that you would have a dual citizen: someone who is a British citizen and a Scottish citizen.

Mike Crockart

Is any analysis being done as to whether that has any knock-on effect? It introduces a level of complexity that is not there at the moment. What would be the knock-on effects of that for the rest of the UK and for Scotland?

James Brokenshire

I cannot say that we have done analysis—for the reasons we are not planning for an independent Scotland—but it would be for the continuing United Kingdom in those circumstances to assess the implications of that. I am sure it would be for the Scottish Government in those circumstances to assess rules and regulations on issues such as the right to vote and other rights that attach to citizenship. There would be various consequences and issues to be considered in those circumstances either for Scotland or the continuing United Kingdom on some of the rights that attach to citizenship.

Chair

One issue that was touched on to some extent in the previous session was the level of consular support and the like abroad.

James Brokenshire

You are right.

Chair

If somebody in Scotland with joint citizenship who was paying tax in Scotland was somewhere there was no Scottish embassy, they would be able to call on UK support without making any financial contribution towards it through their taxes. I am not sure that is necessarily a position that the UK would be happy with over the long term.

James Brokenshire

Clearly, it is something that would need to be examined and considered by the continuing UK. The Scottish Government may wish to negotiate to receive the support of other countries to provide consular assistance to Scottish citizens. That is not to say that Scotland would necessarily want that to be provided by the continuing UK embassies; it could seek arrangements with the embassies or consulates of other countries, but consular support would need careful consideration. Dual citizens have the benefit of our embassies and consulates now. It may be reflected upon, but ultimately our embassies and consulates are there to support British citizens in need of assistance in foreign countries.

Chair

Can I follow up the question of entitlements? If a UK citizen was living in Scotland, would that in itself affect their entitlement to, say, UK pensions and the like?

James Brokenshire

I am straying beyond my normal role in migration and those policies. Benefits are on the basis of habitual residence—we are not talking any more about citizenship—and equally accrued rights being protected. There is quite a complicated picture and I stray beyond my area of responsibility, but it is different. It is important to understand that welfare benefits attach to habitual residence—the primary test that operates—rather than to citizenship. It is important for me to make that distinction.

Mr Reid

One benefit that is related to citizenship is winter fuel payments. At present the Government are paying winter fuel payments to British citizens living in Mediterranean countries. Would I be right in saying that if everybody in Scotland chose to retain their UK citizenship and they were above the qualifying age, they would all be entitled to a winter fuel payment from the UK Government?

James Brokenshire

I am not familiar with the current winter fuel arrangements, but benefits attach to citizenship. I am aware from my constituency postbag of cases that have arisen in different parts of the world where people seek to claim winter fuel allowance. Citizenship brings some prescribed and defined benefits. It is in that sense open to a continuing United Kingdom to assess citizenship moving forward. Therefore, while it is difficult for me to contemplate circumstances where British citizenship would change simply because someone was no longer resident within the continuing United Kingdom, it is open to Governments to change rules and regulations, but it is difficult for me to foresee that happening.

Mike Crockart

Surely, it is more likely that the change would be the entitlement—looking at who would be entitled to that benefit, removing it from being based on citizenship and perhaps making it more related to habitual residence, although there would be something to pay for making that change.

James Brokenshire

I am sure a broad range of policy issues would be created by an independent Scotland, whether or not they are issues such as the one you have fastened upon. I am sure that even more profound ones than that will be thrown up.

Mike Crockart

Are you aware of any other rights, responsibilities or entitlements that attach to citizenship?

James Brokenshire

The key issues that would need to be considered are things like the right to vote. If there were British citizens who were no longer resident within the continuing United Kingdom, what would be their entitlement to vote? Again, that is straying beyond my own responsibilities, but at the same time it is an issue that I am sure would need to be carefully considered by a continuing United Kingdom in those circumstances.

Chair

I think that has covered all the points we wanted to raise with you. At the end of these sessions, as you may remember from your previous visit, we always ask whether or not you have any answers prepared to questions we have not asked, or any points that you feel we should have covered but have not. Is there anything that falls into that category?

James Brokenshire

I believe strongly that the UK is stronger by having Scotland as an integral part of the UK; indeed, our border arrangements provide security for the whole of the UK by having this integrated approach. Borders and immigration is a complex area that requires systems that interlock and take an expansive view in that way—how we control land borders, how we control air and how we deal with maritime. Scotland benefits from some important capabilities, such as our national border targeting centre, which is a system that analyses advance passenger information about people flying in and out of this country. It identifies whether there are known individuals who would be a potential threat and prevents them from boarding aircraft. Our warnings index flags up individuals who enter this country. Scotland would need to consider those issues very carefully on independence, and the continuing UK would need to consider the implications of an independent Scotland. It is important to understand just how profound a change this would be to our security arrangements. I would also highlight the issue of passports. The Scottish Government have said they will expect Her Majesty’s Passport Office to continue to provide passports for an independent Scotland for an intervening period. If Scotland were part of the EU, there may be a requirement for fingerprints to be put into the biometric information contained in a passport. The continuing UK has opted out of those requirements. There are complexities even in the continuing passport arrangements, and there would need to be an agreement reached between Scotland and the UK to provide that type of service. Equally, statements have been made about cost. Additional costs may reside simply because of the additional fingerprint information that would need to be contained in the passport. I suppose this underlines to the Committee the significant benefits we have as the Union—as the United Kingdom—for our security and integrity as a country, with interlocking facilities and capabilities that support that. From what I have seen of the Scottish White Paper, there is a range of complexities and of potential indications of costs and how they could be arrived at that do not appear, at this stage, to have been considered and examined. There would need to be detailed negotiations in any scenario. I think this underlines to the Committee the complexities as well as the challenges involved in citizenship, transit visas and a whole host of different issues that support the business and growth that Scotland benefits from as part of the UK. I strongly believe that Scotland benefits from being part of the UK and, absolutely, that the UK benefits from having Scotland.

Chair

On that happy note, I will call the meeting to order. Oral evidence: The Referendum on Separation for Scotland, HC 140-xx 19