Scottish Independence #1: the EU and Constitutional Conundrums

by George_East on February 21, 2014

Scottish flagThe debate over the last week or so about Scottish independence has been pretty unedifying.  Simplistic arguments, political blackmail and half arsed responses have typified the debate on perhaps the most important constitutional question the country has faced since Irish independence in 1922 (and, on any view, since the European Communities Act of 1972).

Scottish independence is a question that we, on this blog, are divided over.  Our very own Scot, Charlie East-West is unequivocally in favour.  Ray North is against.  I would vote ‘yes’ if I lived in Scotland, but want the Scots to stay in the union from the perspective of living in England (as a counterweight to the southern Tories).  Jackie South is against, though has expressed the view that if he was Scottish and lived in Scotland he might take a different view.  I think though that we all agree that the debate has been disappointing so far.

This is the first of a series of irregular  posts leading up to the referendum in September trying to take a more detached view of some of the issues and implications around the independence debate.  The posts are designed to provoke some thought and to ask a few questions that either do not seem to be being asked or which are getting buried under the over heated rhetoric that currently prevails.

One of the points that has got both sides of the debate excited in the last week or so arose from a comment made by Manuel Barroso, the President of the European Commission, about Scotland’s future membership of the European Union, as an independent nation.  What Barroso said was that it was ‘nearly impossible’ for Scotland to join the EU.  His reasoning for this statement was that those current member states with their own secessionist movements (Spain and Belgium being the two that automatically spring to mind) would be likely to veto Scotland joining the EU as it would otherwise only encourage Catalonia say or the Flemish part of Belgium to declare independence.  Alex Salmond called this ‘preposterous’.

However one point not considered so far as I can see is what the effect of Scottish independence would be on the continued EU membership of the remainder of the UK.    It has been assumed that it would simply continue as a member.    But this gives rise to the question as to whether the UK without Scotland is, as a matter of law, the state which acceded to the EU in 1972.  In my view the position is far from straightforward.

Before looking at the accession treaty by which the UK joined the then EEC, it is necessary to review some basic constitutional history.    The ‘UK’ is a relatively new constitutional construct.    It was created as a result of two Acts of Union and became to be what it is today as a result of Irish Independence.   Thus:

(a)   by the Act of Union 1707 the Kingdom of Scotland and the Kingdom of England were united into a single United Kingdom of Great Britain;

(b)  by the Act of Union 1801 the Kingdom of Great Britain was united with the Kingdom of Ireland (a crown that vested in the monarchs of England) to form the United Kingdom of Great Britain and Ireland;

(c)   in 1922 the Irish Free State was created, and the country became formally known as the United Kingdom of Great Britain and Northern Ireland, its current full name.

Fast forwarding to 1972 and the Accession Treaty by which Edward Heath took the country into the EEC, along with Ireland and Denmark, the country acceding to membership is described as ‘the United Kingdom of Great Britain and Northern Ireland.

Now, Scottish independence, by necessity, will involve the repeal of the Act of Union (the position will revert to that which obtained from 1603 under James I to 1707, of two separate kingdoms sharing a monarch as head of state.    The repeal of the Act of Union will also bring to an end the Kingdom of Great Britain as a legal entity as it was only created by that very Act.

Therefore the country that acceded to the EEC in 1972 will no longer exist, which begs the question as to how the successor UK state, which is not the same state, can simply continue to be a member.

There are some interesting examples of countries changing while retaining their membership of the EU but none of them are on entirely on point, as we lawyers would say.   Three come to mind:

Firstly, in 1962 Algeria obtained independence from France.  Before its independence Algeria was considered not to be a colony, but rather an integral part of metropolitan France and was therefore a part of the EEC (imagine how the Daily Mail would react to that, if it was still true).   On independence Algeria went its own way outside of the EEC, yet France’s membership continued.    However, this is plainly different to the Scottish example, as the signatory to the original Treaty of Rome which created the EEC was the Republic of France.  That entity continued in existence, it was only its geographical reach which changed.

Secondly (and thanks to Jackie South for this one), is the curious example of Greenland.   It is part of the Kingdom of Denmark and on accession of the Danish state in 1972 became (as part of that state) a member of the EEC.   In 1979 Greenland was granted home rule and in 1982 it held a referendum in which it narrowly voted to leave the EEC, the only ‘country’ ever to do so.  There is a rather neat question of EU law, as to how a country that was never itself a member, can vote to leave, but this is a different question to the one raised by Scottish independence.   On closer analysis the Greenland example is the same as the Algeria example.  The signatory to the Accession Treaty was the Kingdom of Denmark.  It has continued as an integral entity (only with a smaller geographic reach), as Greenland has adopted a similar status to say, the Isle of Man or the Channel Islands.

The third example I initially thought would provide the answer but also turned out to be of little help.  In 1990 a united Germany emerged from the fall of the Berlin Wall.    It has occupied the seat that used to be held by West Germany and yet includes the old East German state.  Surely this was the analogy that I was looking for – a successor state occupying the seat of its predecessor state, without reapplying.   However, this example falls foul of our own descriptive names for the Cold War states.  West Germany was, of course, legally the Federal Republic of Germany.    Unification in 1990 was achieved  not by creating a new unified state (there was no German style Act of Union) but instead by the 5 East German lander joining the Federal Republic.   The state that was a member of the EU remained the same throughout, just in this case (in the opposite way to the Algeria and Greenland examples) the geographic reach of the state expanded.

Now the reality is that this particular constitutional conundrum will almost certainly be solved in the negotiations, with it being agreed by Scotland and the existing member states that the continuity UK shall take the place of the existing UK (this was the model that was adopted in respect of Russia and the former Soviet Union in the UN, for example), but it should, I think, be recognised that this is likely to require  an actual agreement and will not necessarily be automatic.    The ultimate arbiter of the meaning of the EU treaties (including the 1972 Accession Treaty) is the European Court of Justice not the governments of the member states.

I may be missing something here but it seems to me to follow that if there is no agreement, then a challenge in the European Courts to the UK’s continued membership might be possible,  something which might well give Salmond more  bargaining chips than has been suggested over the last week or so and which potentially will have the UKIPpers out there salivating.    Maybe Scottish independence will by default result in the primary aim of Nigel Farage and his merry band of Little Englanders.

All very interesting.

{ 2 comments… read them below or add one }

Jackie_South February 21, 2014 at 11:45 am

I’m not sure that a remnant-UK could not continue to call itself “The United Kingdom of Great Britain and Northern Ireland” even though it no longer encompassed all of Great Britain. There are plenty of countries who call themselves something that suggests that they cover a greater area than their actual borders: Central African Republic, United States of America (most of the continent is not in the USA), Republic of Ireland, Somalia, Republic of Korea etc.

Given that Ireland was technically a separate monarchy until 1801, Northern Ireland could be considered a ‘kingdom’ from the point when the rest of the island renounced the monarchy, so there would still be a United Kingdom.

So, the remnant-UK certainly could retain the name ‘United Kingdom’ and probably the full title including ‘Great Britain’ unless Parliament decide to change it.

On your Algiers example, this did of course also trigger the end of the Fourth Republic of France and the establishment of the Fifth Republic, so there may be more of a precedent there than you suggest.

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George_East February 21, 2014 at 11:55 am

On your first point, that is, I think, looking at it from the wrong way round. It is not a question of what the state self-defines as or its name, but rather whether the legal entity that acceded to the treaty, still exists. The remnant UK could call itself what it likes, but it would not make it the same entity that entered into the treaty, as a matter of law. Whether it was, in law, the same state would ultimately be a question of EU and public international law. It is problematic to argue that it is, if the Act of Union 1707 has been repealed.

There would certainly still be a United Kingdom but there would not be a United Kingdom of Great Britain and Northern Ireland, it would as a matter of constitutional law be a United Kingdom of England (which though Ray North won’t be pleased to here, includes Wales constitutionally) and Northern Ireland, which is a wholly different thing.

Geographic coverage is neither here nor there, I think. The Vatican state is now less than a square km, but remains a continuous state from when the Borgias ruled most of central and a good part of Northern Italy.

Your second point is an interesting one – is the 5th Republic a different state to the 4th Republic. I will ponder that one further, though of course the birth of the 5th Republic in 1958 pre-dated Algerian independence.

The literature on successor states is fascinating though the law is surprisingly ill-developed given how many examples there have been over recent decades.

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