Author Archives: Constitutional Law Group

Alan Trench: What follows the referendum: the process of negotiating Scottish independence, or of delivering Devo More

Alan TrenchBack in May, I gave a lecture at the University of Ulster’s Belfast campus about what might follow the vote in the Scottish referendum. I’m afraid I’ve only now had the chance to tidy that up for wider reading. It’s available on the Social Science Research Network here, or can be downloaded directly HERE. The lecture as a whole is somewhat lengthy (around 10,000 words), so this post picks out the key points.

Perhaps the most important and novel part of the lecture is the second one, where I map out what would follow a Yes vote – the sort of steps needed, particularly on the rUK side to tackle the many uncertainties that will follow. This is a separate issue from that of the strengths of each party in the negotiation, discussed HERE earlier in the week.  This would call for a great deal of imaginative thinking, in the midst of a first-order constitutional crisis. In particular, it seems to me that:

  • The negotiating process needs to move with all due speed, to preserve the democratic legitimacy of both rUK as well as an independent Scotland. There is no good reason for rUK to seek to prolong the process, and plenty of reasons for it not to.
  • The 2015 UK General election presents grave problems for that – the time lost to campaigning in an election and briefing a possible incoming new government means it will be impossible to make a proper start in negotiations before June 2015, since even provisional agreements reached under the present government might lack support from the new one.
  • One option – which appears to be gaining some support, particularly among Conservatives – is to postpone the 2015 election. But the present government has already been in office for 4½ years, and has no mandate to negotiate something so important to rUK as Scottish independence.
  • A better option would therefore be to hold a general election early, before the end of 2014, so there was both certainty about the composition of the UK/rUK Government and that government had a political mandate for independence negotiations. This would need approval by a two-thirds majority in the Commons, under the Fixed-term Parliaments Act 2011.
  • Those negotiations will not be quick or straightforward – not just because of the difficulty or complexity of the issues to be considered, or how trade-offs might be made between issues, but because they are a matter for parliaments as well as governments. Parliaments will need to approve legislation giving effect to the final outcome, and in Westminster’s case also to authorise much of the necessary preparation on the Scottish side. There will need to be close co-operation between governments and their parliaments, both to ensure proper democratic control and accountability in the process and to simplify the process of approving the agreement at the end of it.
  • A special UK Parliamentary committee, probably mostly meeting in private to preserve the confidentiality of proceedings and negotiating positions, would be an important way of helping to accomplish that.
  • There would also be problems about the involvement of Scottish MPs and ministers in the independence process on the UK/rUK side. It would be contrary to the interests of the people of rUK for MPs sitting for Scottish seats to be involved in that process; as those negotiations affect first and foremost the people of England, Wales and Northern Ireland, only their representatives should be involved – whether in negotiating teams, Cabinet or Cabinet committees when considering independence-related matters, or when those are considered in Parliament. This is the West Lothian question on steroids.
  • The need to ensure a broad consensus of support within rUK for the agreement also means that the Opposition – whoever it may be at the time – will need to be involved in the process. In particular, figures from the Opposition should be included in the rUK negotiating team, and party leaderships kept abreast of all issues under consideration. Again, while this complicates the process of the negotiations, it will simplify the process of approving and implementing an independence agreement.

Much of this sits oddly with usual British constitutional practice. But a Yes vote would trigger extraordinary times, and a need for extraordinary measures to cope with an unprecedented and very difficult situation.

As far as a No vote is concerned, the lecture maps out the programme that was clearly being advanced by the Unionist parties in May, and advanced by the IPPR’s Devo More project: separate party policies, cross-party agreement on the key elements of that, early consideration of them following the referendum and implementation through endorsement in the 2015 election manifestoes. That process would clearly need to include the SNP as well as the pro-union parties, unless the SNP chose not to take part. Since I gave the lecture, the Scottish Conservatives have published their proposals in the form of the Strathclyde Commission report (and I have amended the text to reflect that). Subsequent developments have hardened the commitment of the parties both to the need for joint action and a clear timetable, as well as a Scottish-focussed process to agree the main features of ‘enhanced devolution’.

None of this is about simply ‘giving Scotland more powers’. It is about getting devolution right, so that it enables Scottish voters to have what they have wanted for more than a decade: extensive self-government within the Union. That will benefit other parts of the UK too, and not just by achieving a greater degree of constitutional stability. It will ensure that if Scottish taxpayers choose to spend more on devolved Scottish services, they bear the fiscal consequences of that; this would not be at the expense of taxpayers outwith Scotland.

There is, however, a clear need for that to be followed by a wider process covering the whole UK, and the best way to achieve that would be through a conference of members of the UK’s parliaments and legislatures; MPs, MSPs, AMs and MLAs. This is the idea underpinning the Strathclyde Commission’s recommendation for a ‘committee of the parliaments and assemblies’ . Through their election, these figures all clearly have a mandate and authority that other methods of selection would not give them.

Whatever happens on 18 September takes the UK into new and uncharted constitutional waters. It is important that everyone understands what is likely to follow, and what the world is likely to look like in a few months’ time.

 

Alan Trench is a Professor of Politics at the University of Ulster, also having affiliation to the University of Edinburgh and the Constitution Unit at University College London, and he runs the blog Devolution Matters. This post is reproduced from that blog with permission.

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Luke Beck: Scottish Independence and Australia

LukeWhat effect might Scottish independence might have on Australia’s constitutional arrangements? This might seem like an odd question but there has been a suggestion in Australia that there might be a profound effect.

Macquarie University’s Iain Stewart is reported by the Australian Broadcasting Corporation as recently saying that Scottish independence ‘could remove [Australia’s] head of state, the monarch, and thus, at least legally, make government in Australia impossible.’ Stewart wrote a piece on The Conversation to similar effect in 2011. A similar suggestion was made by a senior member of the Victorian Bar, David Denton SC, in 2012.

The Australian Constitution relies heavily on the role of the Queen. Among the most important references to the Queen in the Australian Constitution are section 1 establishing the Queen as formally a part of the Australian Parliament and section 61 vesting the executive power of Australia in the Queen. Of course, in practice, the conventions of responsible government operate. Stewart’s concern relates to how we identify who the Australia monarch is.

The starting point for identifying the Australian monarch is covering clause 2 of Australian Constitution. Covering clause 2 provides: ‘The provisions of this Act referring to the Queen shall extend to Her Majesty’s heirs and successors in the sovereignty of the United Kingdom.’ The Act referred to in covering clause 2 is the Commonwealth of Australia Constitution Act 1900 (Imp), s 9 of which contains the Australian Constitution. The sections of that Act are usually referred to in Australia as ‘covering clauses’ to emphasise they are not actually part of the Australian Constitution.

Stewart’s essential concern is that should Scottish independence occur as a result of the 18 September referendum there would no longer be any United Kingdom by reference to which Australia determines who its monarch is.

I say that Stewart’s concern is unfounded.

In the first place, we’ve been here before. Covering clause 2 simply refers to ‘the United Kingdom’. That is in fact a short hand reference to ‘the United Kingdom of Great Britain and Ireland’. That was the entity existing in 1900. That is the entity referred to in the oaths schedule to the Australian Constitution. The schedule says regarding the oath of office that ‘The name of the King or Queen of the United Kingdom of Great Britain and Ireland for the time being is to be substituted from time to time’. The constitutional preamble likewise refers to the Australian people agreeing to unite in a federal Commonwealth under the Crown of ‘the United Kingdom of Great Britain and Ireland’.

But, of course, the United Kingdom of Great Britain and Ireland no longer exists. With the independence of the Republic of Ireland, the country became the United Kingdom of Great Britain and Northern Ireland. Scottish independence would, from the point of view of Australia’s constitutional situation, be no different to Irish independence. A chunk of the UK has broken away and become its own independent nation.

The reference to the United Kingdom in covering clause 2 must be read as a reference to the United Kingdom of Great Britain and Ireland and it successor state/s, to adopt the international law terminology. Following Irish independence the successor state was the United Kingdom of Great Britain and Northern Ireland. Australia experienced no constitutional problems as a result of Irish independence and there was no doubt about who Australia’s monarch was. If Scotland becomes independent, the successor state will be what is left of the United Kingdom by whatever name it chooses to go by.

There is another reason why Stewart’s concern is unfounded. That reason is that it is based on an assumption that the legal effect of covering clause 2 is to mandate that whoever is the UK monarch is also by virtue of that fact the Australian monarch. This is certainly one view of the effect of covering clause 2 (which for the reasons given above poses no problems for Australia should Scotland become an independent country). But there are other views of the legal effect of covering clause 2.

As Anne Twomey explained in ‘Changing the Rules of Succession to the Throne’ [2011] Public Law 378, 391 and on the Constitutional Critique Blog in 2012 there are two other possible interpretations:

  • “covering clause 2 is merely an interpretative provision which simply assumes, but does not enact, the existence of a succession law that is operative in Australia. According to this view, covering clause 2 operates to ensure that references to the sovereign are not taken to be confined to the sovereign at the time of the enactment, but extend to whoever happens to be the sovereign from time to time in accordance with the applicable law. As the United Kingdom can no longer legislate for Australia, the applicable law would be the pre-existing law of succession as altered by Australian law.”
  • “covering clause 2 incorporated by reference into the Commonwealth of Australia Constitution Act the British laws of succession to the throne. Under s 4 of the Statute of Westminster, those laws could be amended or repealed by United Kingdom legislation to which Australia had given its request and consent. That is no longer the case. Section 1 of the Australia Acts 1986 provides that no Act of the United Kingdom Parliament may now extend to Australia as part of Australian law. In Sue v Hill [(1999) 199 CLR 462, [93]] three Justices of the High Court of Australia noted that covering clause 2 identifies the Queen ‘as the person occupying the hereditary office of Sovereign of the United Kingdom under rules of succession established in the United Kingdom.’ Their Honours went on to state:

The law of the United Kingdom in that respect might be changed by statute. But without Australian legislation, the effect of s 1 of the Australia Act would be to deny the extension of the United Kingdom law to the Commonwealth, the States and the Territories.

The argument here is that the rules of succession have been effectively patriated with the Australian Crown and while they continue to exist in their current British form, they may only be amended or repealed by Australian action.”

On both of these alternative views of covering clause 2, no change in British law can affect the way in which Australia’s monarch is identified. This is why Australia needed to pass legislation to give effect to the Succession to the Crown Act 2013 in Australia. On the same basis, any changes brought about to the British laws of royal succession as a consequence of Scottish independence would be of no effect regarding the Australian monarch.

In conclusion, it seems pretty clear that Scottish independence will have no direct impact on Australia’s constitutional arrangements.

 

Luke Beck is a PhD Candidate, Postgraduate Fellow (Research and Teaching) and Associate, Constitutional Reform Unit at Sydney Law School, The University of Sydney.

Suggested citation: L. Beck, ‘Scottish Independence and Australia’ UK Const. L. Blog (12th September 2014) (available at http://ukconstitutionallaw.org)

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Debate: Neil Walker: Scotland and the EU: A Comment

NeilOnce upon a time it seemed like a good idea to try to clarify the route (Article 48 or Article 49 TEU) through which and the terms on which (with or without UK opt-outs on Euro, Schengen etc) an independent Scotland might join the EU prior to the great referendum vote of September 18th. Clarity would have allowed for a more informed assessment ahead of ‘D’ day by all involved in the drawn out constitutional drama – a more considered appraisal of the risks attendant upon this or that choice. But clarity has not been forthcoming, and it is now far too late in the day to imagine that it will. In fact, clarity before the vote was probably always a naïve hope. As Sionaidh Douglas-Scott reminds us, there are no precedents for ‘internal enlargement’ of the EU following the separation of an existing member state, no Treaty provision directly in point, and no obvious forum outside of the political process where a definitive statement of the relevant law can be supplied or enforced. Add to that the understandable tendency of both sides to talk up those arguments that best serve their cause and the reluctance of European institutions to anticipate the correct approach, and it is no surprise that our sense of how to proceed remains legally unsettled. Of course, in the event of a ‘yes’ vote these questions will no longer be moot, and the law would henceforth come into its own. Matters unresolved would have to be addressed in ‘real time’ and the best sense of the relevant membership procedures and conditions  thrashed out with prompt authority, though the requirement of constitutionally copper-bottomed ratification by all member states would still leave the process ultimately at the mercy of national discretion.

The search for advance clarity has proven not merely fruitless, however. Worse than that, it has tended to deflect attention from the deeper questions of political morality at play. The climate of debate has swung between a frustrated legalism which can never substantiate its own authority and a strategic – some might say cynical – political opportunism that takes the line of most convenience, with each the reinforcing condition of the other. Which is why the intervention by Joseph Weiler is refreshing, at least at one level. He sees no technical legal impediment to Scotland joining, and he does not seek to contrive such an impediment. And while he does take seriously the concerns of other states, Spain, France, Italy, Belgium and elsewhere – from whom secession is threatened, or is a long-term possibility, he does so not in terms of their narrow strategic self-interest but on account of the disadvantage to all of a ‘domino  effect’ of ever more strident nationalist claims across the continent and beyond.

But  his main argument is located in a more EU-specific strain of public reason. He has claimed – earlier with special reference to the Catalan case and now with regard to the Scottish case – that just as national minorities in existing member states who presently enjoy extensive forms of individual and collective freedom have no automatic right to secede as a matter of general international law, so, too, the EU in its accession and general membership policy should not be expected to indulge the independence claims of these unoppressed sub-state nations. To the contrary, the very ethos of integration, reconciliation and continental solidarity that has fed the European project from its post-War beginnings should cause the EU, and all those who endorse the best understanding of its foundations, to take a dim view of any separatist impulse that seems to betray these founding virtues. From this perspective, therefore, far from having a stronger claim than those external candidates who have benefited from the post-Cold War Enlargement, those nations already comfortably nested in the EU’s Western European heartland should be refused a safe supranational haven if they insist on the path to independence.

I applaud the candour of Weiler’s argument and its refusal to hide behind either the law’s false certainties or the strategically hostile motives of un-named others  (as was Barroso’s repeated tendency when President of the Commission). Yet I join with Douglas-Scott, Kalypso Nicolaidis, Michael Keating and others in finding the Weiler approach too stringent. In the first place it does not take a people’s own view of their preferred collective future seriously enough. Whether we are dealing with the  Scottish or the Catalan case or that of any other national minority, surely more store than Weiler allows should be set by an aspiring nation’s own sense of what is the constitutionally adequate vindication of its desire for collective autonomy. If nothing short of independence is deemed sufficient from the perspective of the constituency in question as an affirmation of shared political identity, it is difficult to see why such a subjective collective aspiration should be summarily dismissed in favour of a supposedly objective standard of adequate individual and collective freedom – one which, incidentally, always leaves in successful place another and prior but far from necessarily morally superior claim to nation-statehood. And international law, with its high threshold of a ‘right’ to self-determination is of little help here, since its structurally biased concern has always been with the minimum necessary disturbance of the existing international distribution of sovereign authority rather than the fairest and fullest accommodation of self-determination claims.

In the second place, even if a case for the EU as an entity possessing and pursuing a unique historical mission to make internal secession unacceptable and unnecessary can be persuasively advanced, it seems unduly dogmatic to use this to justify a rigid policy against continued membership of new internal states. There are, after all, other and rival views of the deeper purpose of the European Union. The priority given in the Preamble to the TEU to the principle of subsidiarity offers one different strand, just as the deepening significance of EU citizenship as a horizontal relationship amongst persons as Europeans rather than state nationals offers another. These strands reflect an alternative and more independence-friendly perspective. In the face of these competing narratives, the public policy of the EU on accession should surely remain more agnostic.

Yet would this agnosticism, and its consequential refusal neither to oppose Scottish membership nor to concede everything to its fast-track aspirations, not simply involve an extension of the failure of conviction that we have found – and criticized – in the preoccupation with the odd couple of ‘pure’ legalism’ and ‘impure’ political expediency? I do not think so. There is a big difference between avoiding the question of principle and answering it through a position of considered neutrality. What is more, and what is crucial, the EU can and should contribute something other to the Scottish debate, and that of any sub-state nation, than the role of the gatekeeper whose authority is dubious and, if exercised, liable to breed resentment.

The Union’s influence on the debate should instead be more indirect, but also more telling. It should rest in the way in which its very existence alters the stakes of political nationalism. On the one hand, by pooling significant amounts of sovereignty above the state, the EU demonstrate that the choice between independence and continued incorporation in another state is far from being an all-or-nothing one, and by offering various economic and social rights and measures of non-discrimination it offers the kind of cosmopolitan freedom that  guarantees against the systematic ill treatment of minority nations and nationalism. On the other hand, by supplying a new level of political identity, and a new point of reference for interpreting national identity, the EU surely also changes the expressive significance of national sovereignty and its alternatives. Just as ‘independence in Europe’, as in the Scottish nationalists’ longstanding slogan, conveys a very different meaning and sense of collective identity than ‘separatism at Europe’s Northern edge’, so too ‘Britain in Europe’ is much less isolationist than without its qualifier, and ‘Scotland-in-Britain-in Europe’ suggest a much less subordinate native identity than merely ‘Scotland in Britain’.

As the examples imply, the argument here can cut both ways. The presence of the EU both offers a spur to new projects of national sovereignty but also, and in my view more emphatically, it supplies a set of considerations which makes the project of new statehood less pressing, less consequential, and provided we can trust in continuing UK membership of a continuing EU (both of which statuses, of course, need careful attention) less relevant and ultimately unnecessary. This sense that the EU is structurally and symbolically adept at securing the kinds of material guarantees and forms of individual and collective dignity whose absence might otherwise fuel and justify independentist claims no doubt lies behind Weiler’s insistence that the EU should also be explicitly and concretely resistant to new forms of legal and political identity that are divisive of existing member states. But, in my view the first claim should be allowed to stand or fall on its own merits. The ‘carrot’ of current EU membership, in other words, should be its own incentive, without the ‘stick’ represented by the threat of future exclusion. And, even at this late hour, the European case for Scotland staying in the United Kingdom is better served by emphasizing the space for the expression and realization of national political interests, even without the old forms of state sovereignty, that Europe offers in the here and now, rather than by dire warnings of privations to come.

Neil Walker holds the Regius Chair of Public Law and the Law of Nature and Nations at the University of Edinburgh.

This posted originally appeared on the Verfassungblog, and is now reposted on this blog as part of a collaboration between UKCLA Blog and the Verfassungblog.

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Debate: Stephen Tierney: Scotland and the EU: A Comment

stierneyI agree with Sionaidh that the accession of an independent Scotland to the European Union is not in any serious doubt. I develop this point in a paper written with Katie Boyle here. In this blog I argue that although accession will no doubt take time, there is unlikely to be any period within which Scotland is effectively cast out of the EU. More speculatively I would like to ask whether there might in fact a duty on the part of the EU to negotiate Scotland’s membership, and whether the Secession Reference to the Supreme Court of Canada may provide an interesting analogy supportive of this argument.

To begin, I am not as sure as Sionaidh that Article 48 would be the route to membership adopted by the EU. I believe Article 48 does offer a plausible mechanism to secure Scotland’s membership, but given that Scotland will become a new Member State and given that the case law of CJEU establishes that specific articles have preference over general ones, it seems that Article 49 offers the more obvious process. Of course politics may take over here so we simply don’t know for now.

In either event detailed negotiations of the terms of membership will be required and a potentially lengthy process of ratification of a new accession treaty (if Art 49 is used) could well ensue. That said, Scotland’s position is in no way analogous to that of accession countries joining from the outside. We see this when we turn to another and perhaps more important question: what if the entire accession process is not concluded by the date of Scottish independence, proposed by the Scottish Government to take place in March 2016? In this event would Scotland, in declaring independence, find itself cut off from the rights and obligations that come with membership of the European Union, albeit temporarily? This is a huge question in the current referendum debate.

For a number of reasons such a radical break in Scotland’s relationship with the EU seems very unlikely. Scotland is already embedded within the EU and is of no little economic, strategic and territorial importance to the Union; it is integrated into its institutions, its territory is subject to EU law, and residents of Scotland from across Europe enjoy the rights of EU citizenship within Scotland. For these reasons it seems very likely that the EU will endeavour to ensure that the jurisdiction of EU law and the rights and responsibilities of citizenship continue to apply to Scotland in any intervening period between independence and full EU membership, rather than deal with the administrative upheaval and potential legal minefield which the removal of Scotland from the writ of EU law would bring.

This is also a time of uncertainty for the European Union in light of the economic crisis and the conflict in Ukraine. Why when faced with these more significant concerns would the EU not seek to avoid the practical problems which would result from the loss of jurisdiction in Scotland, the concomitant impact on rights of citizens etc.? And such a scenario is surely entirely avoidable. A more likely prospect is an interim arrangement which would secure the continuing effect of EU law in relation to Scotland, but would delay formal membership by Scotland until negotiations and the ratification process are each concluded.

Another argument (made at greater length here) is that the salience of the concept of citizenship to the EU, the Union’s commitment to democracy and the growing emphasis on the protection of citizens’ rights, together suggest that there is in fact a prima facie duty on EU institutions and Member States to negotiate Scottish accession to the EU in the event of a Yes vote. This argument is based upon the EU’s own treaty commitments (for example, the principles of sincere cooperation, full mutual respect and solidarity found in Art 4 TEU), but can also be developed by analogy with the Reference re Secession of Quebec.

In this case the Supreme Court of Canada found within the Canadian constitution an obligation on Quebec’s ‘partners in confederation’ to negotiate Quebec’s secession. The situation regarding Scotland and Europe is of course different in a number of respects. The EU is not a state like Canada and does not have a history of some 130 years of confederation. However, on the other hand, the Canadian Supreme Court based the duty to negotiate upon the principle of democracy which is not expressly mentioned in the Canadian constitution, but which the Court took to be an implicit and unwritten principle of the constitution. By contrast, Article 2 TEU makes explicit reference to the principle of democracy. Based primarily upon this principle, the Canadian court decided that ‘a clear expression of self-determination by the people of Quebec’ imposed duties on the rest of Canada to negotiate. By analogy, a Yes vote in the referendum can reasonably be seen as the expression of the will of the people of Scotland not only to be an independent state but to be part of the EU. A commitment to EU membership is part of the Scottish Government’s proposal for independence; it is contained in the White Paper, ‘Scotland’s Future’ for example. It can be argued strongly that voters are aware that to vote Yes to independence is also to vote for Scotland becoming an independent member of the EU. And since we are discussing a territory which is part of the EU and which wishes to remain part of the EU, it would seem easier to assert an obligation on partners in a union to negotiate the continued membership of a component part, where the principle of democracy, along with citizenship, are express constitutional commitments, than an obligation to negotiate its secession where the constitution is silent on both secession and democracy as it was in Canada.

None of this is to say that there will not be a number of important and possibly contentious issues to be dealt with in the negotiations. Scotland’s relationship to monetary union, the status of existing UK opt outs and the budget rebate all present potential sites of dispute. Indeed, should the terms of admission be very unfavourable there may well emerge a debate within Scotland as to whether membership of the EU is even desirable; the UK’s own EU trajectory will be relevant to such a debate. In short, Scotland will almost certainly not get all that it wants in seeking to join the EU. But this is very different from any suggestion that it will somehow be cut adrift entirely from the European project.

 

Stephen Tierney is a Professor for Constitutional Theory and Director of the Edinburgh Centre for Constitutional Law at the University of Edinburgh.

This posted originally appeared on the Verfassungblog, and is now reposted on this blog as part of a collaboration between UKCLA Blog and the Verfassungblog.

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Debate: Bruno de Witte: Scotland and the EU: A Comment

Bruno-de-Witte-avatar-1410304240-96x96Two main options have been put on the table for (re-)accommodating an independent Scotland in the European Union: accession of an independent Scotland to the European Union by means of the procedure of accession of new member states set out in Article 49 TEU; or accommodation of Scotland as a new member state at the same time as it achieves independence, by means of a revision of the European Treaties according to Article 48 TEU. The latter option is supported by the Scottish government in its Scotland’s Future White Paper of November 2013. The Treaty revision would enter into force at the same time as Scotland would become independent (and the government suggested a date for this to happen, namely 24 March 2016). In this way, there would be a seamless transition. Scotland would not first drop out of the EU by separating from the UK, and later climb in again through an accession treaty; it would simply stay inside the EU all the time.

I agree with Sionaidh Douglas-Scott that this approach is more attractive. Indeed, EU law currently applies on Scottish territory, and both British and EU nationals living on Scottish territory are currently EU citizens, and benefit from the rights attached to that status. Nobody really wants this to change. It would therefore be awkward and costly, both for Scotland and for the rest of Europe, if EU law would cease to apply to Scotland upon its independence, and would have to be restored later, after an accession treaty had entered into force. Indeed, such a temporal gap is logically inherent in taking the accession route: a state can only request membership of the EU after it has become independent. In his contribution to this discussion, Joseph Weiler suggests that accession could be as seamless as revision: the act of independence could be followed, the next minute, by signature of the accession treaty with Scotland, so that Scotland could join the EU on the same day as it becomes an independent state. But, even if an accession treaty could be signed on the same day as Scotland becomes independent, it would then still have to be ratified by all (then 29) member states before it could enter into force. It is hard to imagine that all national parliaments would be able or willing to do so ‘on the spot’ and without any debate. A revision treaty, on the other hand, could be adopted by the existing member state governments and ratified by their parliaments before Scotland became independent, thus indeed allowing for a seamless transition of legal rights and obligations.

The main logical argument against the Article 48-route is that the TEU provides, in its Article 49, a special procedure for states to join the EU which could be taken to mean that other routes to membership are not available. I do not find that argument very persuasive, though. The norm of Article 49 is clearly written with a view to states that, being outside the EU, would like to join it. Yet, a revision treaty accommodating Scottish membership would be agreed before Scotland would be an outside state, and therefore before Article 49 would become applicable. It would not deal with accession of a new member states, but rather with the creation of a new member state by disaggregation of one of the current member states.

If a revision treaty would allow for a seamless transition, that would not make it a smooth transition, as Jo Murkens rightly points out in his contribution. A revision treaty requires unanimous agreement and ratification by all member states, and is therefore politically as difficult to achieve as accession. It has the added difficulty that the negotiations would, formally at least, have to be conducted by the UK government on behalf of the future independent Scotland. The Scottish government would itself not be represented at the negotiation table, and the Scottish parliament would not be called to ratify the result of the negotiations. Presumably, representatives of the Scottish government would be co-opted into the UK delegation, but it is quite clear that the Scottish government could not insist on the adoption of amendments that would not correspond to the rest-UK’s interest. A typical example of this is the Scottish government’s demand for derogation from the principle of equal access to higher education for EU students. The Scottish government would like to retain higher tuition fees for English students.This unequal treatment is fine under current EU law (since it is considered to be an internal UK matter, not affecting the rights of mobile EU citizens), but would most probably be unlawful once the rest-UK and Scotland become separate states. It would therefore require an explicit Treaty-level derogation, but there is little prospect – it would seem – of the UK government taking on board this request in the context of Treaty revision negotiations.

The accommodation of an independent Scotland, by either the Article 48 or the Article 49 route, would require a decision as to whether the numerous opt-outs currently applying to the United Kingdom (EMU, Schengen, immigration, criminal law) would continue to apply to Scotland. If there were no unanimous agreement among all current member states to modify the Treaty protocols in which those opt-outs are laid down, they would continue to apply to the ‘rest-United Kingdom’ and would not apply to Scotland, since Scotland would have ceased to be part of the UK. This means that the Scottish government, in case of a Yes vote, should prepare itself for the likely possibility that membership of the EU would mean full membership without any opt-outs, and therefore also membership of the Eurozone.

‘Seamless transition’ would, however, require much more than the successful accomplishment of the treaty amendment process. It would also require the adaptation of existing EU secondary law prior to the date of independence. Indeed, there are many pieces of EU legislation that contain provisions applicable to some member states in specific ways, and the position of Scotland would have to be determined by means of amendments to that legislation that would have to enter into force on the same day as the revision treaty, in order to allow for seamless transition on independence day. This would apply, for example, to all EU legislation in the Area of Freedom, Security and Justice for which the UK made use of its case-by-case opt-out. The exclusion of the UK from their field of application would not include the future independent Scotland, so that the relevant directives, regulations and decisions would have to be modified if Scotland wants to preserve the existing opt-outs. But there are many country-specific norms in other areas of EU law as well. For example, the Directive on professional recognition of diplomas contains numerous country-specific norms and lists in its main text and its Annexes.

In addition to changes of EU law, the Scottish government and parliament would also have to enact new laws to accommodate their EU law obligations: for example, they would have to define the criteria for Scottish citizenship; they would have to define the ‘competent authority’ or ‘contact point’ which EU law requires in many areas (for example, in the services directive, for recognition of diplomas, data protection, competition law and the regulation of utilities). Scotland would also have to decide on its representatives in the myriad member-state composed working groups and committees in Brussels. One wonders how all this could be accomplished under the Scottish parliament’s current, pre-independence, powers! Presumably, this would require an informal pre-independence legislative process, whose results would have to be approved in toto by the Scottish parliament on the first day of independence/EU membership.

By way of conclusion, I would argue that, whereas the Article 48 route has major advantages over the Article 49 route, and would be feasible – in my view at least – as a matter of legal principle, it would create many complications all the same, both for the Scots and for the rest of Europe.

 

Bruno de Witte is a Professor of EU Law at the European University Institute (EUI) in Florence.

This posted originally appeared on the Verfassungblog, and is now reposted on this blog as part of a collaboration between UKCLA Blog and the Verfassungblog.

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Debate: Jo Murkens: Scotland and the EU: A Comment

jo-mur1What would be the characteristics of an ‘independent’ Scotland? And what kind of a Member State would it be? Intriguingly, the pro-independence Yes Scotland campaign promises continuity on key issues, such as the currency, the Queen, and the European Union. In a recent paper, Sionaidh Douglas-Scott claims that the process of continuing EU membership for an independent Scotland will be ‘relatively smooth and straightforward’ – a claim that has been taken up by Yes Scotland. (Given the at best ambivalent and at worst antagonistic attitude of the UK, the promise of continuity is not necessarily good news for the European Union). The strength of this claim rests on Douglas-Scott’s preference for Article 48 TEU (the Treaty revision procedure) rather than Article 49 TEU (the Treaty accession procedure). In other words, she assumes that the EU would welcome Scottish independence with a simple and internal procedural change, rather than with an insistence on a cumbersome accession process.

There are two problems with using Article 48. First, it is the provision by which existing member states organise their relationships with non-Member States and international organisations. Unlike Article 49, it was not designed to bring about the institutional changes needed to accommodate a new Member State. Second, in his evidence to the House of Commons, Prof. Kenneth Armstrong exposes the ‘smooth and straightforward’ claim as fallacious by highlighting the risky nature of Article 48. For starters, the Scottish Government would have to rely on the UK government to initiate and manage the negotiation process. But in addition, Article 48 would create an opportunity for the UK government to hijack the process in order to renegotiate the UK’s own relationship with the European Union. Even assuming goodwill from the other Member States about the principle of membership of an independent Scotland, the UK’s renegotiation strategy in particular, and the negotiation process as a whole, may very well meet with fierce resistance. Far from being ‘smooth and straightforward’, Prof. Armstrong points to a danger that:

…the process [under Article 48] becomes lengthened rather than shortened. If it was a normal accession process under Article 49, there is every reason to believe it possible that the negotiation element could be conducted by the preferred date for independence. That would still leave open the ratification of that agreement, which might take several months, if not longer, to do.

Douglas-Scott’s paper is further marked by an absence of political context. She is correct to note that the EU is not the slave of public international law, and that it is capable of reacting in ‘pragmatic and purposive’ fashion to current affairs unregulated by the Treaties, as it did for example in 1990 when Germany unified. But she does not discuss the current politics of secession in the EU, which is very different from the situation in 1990. German reunification did not result in immediate Treaty change. East Germany acceded to West Germany, and Germany accepted the (unchanged!) Treaty rules relating to the institutions, the weighting of Council votes, and the allocation of seats in the European Parliament. From the perspective of the European Community in 1990, reunification did not change the way it operated and was, therefore, waved through.

By contrast, Germany, France, Italy, and Spain can have no interest in witnessing the diminution of the United Kingdom and in setting a precedent for other European secessionist movements. Experience shows that the international community as a whole shows an interest in the activities of states especially in cases of break-ups. Spain, Slovakia, Romania, Greece, Cyprus did not recognise Kosovo’s unilateral declaration of independence in 2008 in order not to set a precedent for separatists in their own countries.

That said, Douglas-Scott is correct to assume that there will be Member States who will be supportive of Scottish independence, especially if clear support for it was demonstrated in a referendum. If the United Kingdom resolves the matter in a procedurally fair and transparent manner, the attitude of the Commission and the other Member States may be positively influenced and Scotland’s application could be fast-tracked. The UK’s attitude may in turn depend on how Scotland behaves during the independence negotiations, and whether the negotiations have been conducted co-operatively and amicably, or the reverse.

Finally, an independent Scotland will not be fully compliant with the EU’s acquis communautaire. As Daniel Kenealy has noted, ‘Scotland is only compliant by virtue of being part of the UK and thus covered by the UK’s institutions and regulatory structures’. The loss of membership status following separation means that Scotland would no longer benefit from the UK’s derogation from the single currency and from the Common Travel Area (Schengen Agreement). An independent Scotland would not inherit the opt-outs the UK negotiated for the Treaty of Maastricht. The formal position is as follows. All Member States (except UK and Denmark, who secured opt-outs in the Maastricht Treaty) are expected eventually to join the Mechanism and to adopt the Euro. All the new Member States since 2004 are legally obliged to adopt the Euro at some future point, with no opt-out clauses. If Scotland wishes for membership to be ‘smooth and straightforward’, should it not better prepare itself to adopt the Euro and to sign up to Schengen?

In sum, Douglas-Scott’s reliance on Article 48 is far from persuasive on technical legal grounds (is it the correct legal basis to accommodate a new Member State?) as well as for strategic reasons (the negotiation process may well be dominated by the UK’s negotiating team pursuing its own agenda). But even if an independent Scotland’s continued membership in the EU were ‘smooth and straightforward’, Douglas-Scott provides no answer to the question as to what kind of member an independent Scotland would be (Europhile? Eurosceptic? Europhobic?) and what the terms of membership would be. Instead, her contribution perpetuates the language of continuity for membership and for citizenship which, given the UK’s often fractious relationship with the EU, is not necessarily a good thing. The outside observer is none the wiser as to the characteristics, indeed the meaning, of ‘independence’, and completely in the dark as to whether an independent Scotland would welcome the EU.

 

Dr. Jo Eric Khushal Murkens is an Associate Professor at the Department of Law of the London School of Economics and Political Science (LSE).

This posted originally appeared on the Verfassungblog, and is now reposted on this blog as part of a collaboration between UKCLA Blog and the Verfassungblog.

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Debate: J. H.H. Weiler: Scotland and the EU: a Comment

Joseph-H.H.-Weiler-avatar-1409860918-96x96The Scottish referendum on independence is upon us. At some levels it is an easier and ‘cleaner’ case than that of Catalonia: The United Kingdom, in a mature political decision, has allowed this referendum thus removing any objection from either a British constitutional perspective or from public international law.

The people of Scotland, many of them at least, resent ‘outside interference’ in what they consider their internal business – the exercise of a right to self-determination. It is indeed their business; but this does not mean that outsiders cannot, or should not, have a view and express that view driven by both prudential and normative considerations.

The issue of greatest concern outside Scotland and the United Kingdom concerns the future, or otherwise, of an independent Scotland within the European Union. Membership would not be automatic – I find the argument for automaticity based, as it has been by some, on the fact that the people of Scotland are citizens of the Union unpersuasive. Citizenship of the Union is predicated on being nationals of a Member State. And if Scotland becomes independent, her people, by their own sovereign decision, would no longer be nationals of a Member State. They are becoming independent from the United Kingdom. (Let me open a first parenthesis. In part the matter is one of framing: If, say, Belgium were to decide to split, it would not be nearly as clear which, if any, of the two – Wallonia, Flanders – would “remain” a Member State and which would have to accede. Perhaps neither.)

Be that as it may, there should be no legal impediment for Scotland to become a Member State if she satisfies the condition for Membership, political and legal, one of which is a unanimous decision of all Member States. On the technical side it should be a relatively easy accession, since the European legal acquis is part of the political and legal fabric of Scotland. The adjustments necessary will be, for the most part, of a technical nature. (A second parenthesis: It is said that for Scotland to accede she would first have to be an independent State i.e. forcing her into an interregnum of non-membership. That is why some lawyers suggest Scottish “accession” through Treaty amendment rather than through Accession. I think Treaty amendment is a circuitous way, and normal Accession is the correct route; but I do not think a real interregnum would be necessary. The would-be independent Scotland could negotiate her accession in her current status, go through all the European constitutional hoops save the final signature of the Act of Accession. That can be planned to take place, literally on the very same day that Scotland becomes formally an independent State. One would first complete the last formal act of independence – some piece of paper will be signed by, presumably the British Monarch and the Scottish authorities and immediately the Act of Accession could be signed. Scotland would be a non-Member State for the duration of it takes to sign those two pieces of paper. This is of course a short-hand for a fairly complex procedure but it could be done.)

The issue, therefore, is not legal but political. Should the Member States of the European Union embrace an independent Scotland? In an Editorial in EJIL some time ago I took a dim view of plans for Catalan independence – which earned me the ire of many. I do not think that any editorial I wrote provoked so much hate mail. I take a similarly dim view of the Scotland case. Make no mistake: I harbor great affection for Scotland and its people. My father admired them, as he did any small people living in the shadow of a giant and yet managing to preserve a keen and rich sense of distinct national identity. I also do not doubt their distinctiveness as a nation.

Why then this dim view? One consideration, not trivial, is prudential: I am convinced that Scottish independence coupled with simultaneous, or close to simultaneous, membership of the Union will provoke a domino effect among many nations and regions in Europe. Independence pure and simple is in many cases threatening and unattractive. There is a long list of candidates, in Spain, France, Italy and elsewhere who would be emboldened by the Scottish example. Feeding this frenzy for secession and independence in Europe is the premise that all these new States will somehow find a safe haven as Member States of the European Union. Absent that assumption, appetite for independence would be significantly muted the rough seas of “going it alone” far more threatening.

I do not believe that given the decisional structure of the Union, even on the most optimistic ideas for reform, it would be helpful for Europe to have a growing number of Member States. Saying Yes to Scotland would require saying yes at least to all other constitutionally lawful secessions.

But the main consideration is not prudential. I do not take the view, normatively speaking, that having a distinct national identity within a democratic State in and of itself justifies independence. It is simply ethically  demoralizing to see the likes of Scotland and Catalonia reverting to an early 20th Century post World War I mentality, when the notion that a single state could encompass more than one nationality seemed impossible – hence the special treaties on minorities which abounded in the breakup of the Ottoman and the Austro-Hungarian Empires. These arrangements were well intentioned but lacking in political imagination and eventually, let us not hide the ugly facts, feeding and leading to that poisonous logic of national purity and ethnic cleansing. Again, make no mistake: I am not suggesting for one minute that anyone in Scotland or Catalonia is an ethnic cleanser. But I am suggesting, that the “go it alone” mentality is associated with that kind of mindset.

More than any other country with which I am familiar, the current constitutional arrangements in the UK allow a full vindication of a Scottish cultural and distinct political identity. Scotland is not a Chechnya. So what is the case for independence? It is precisely that notion that having a distinct national identity justifies secession, a notion fueled in my view by a seriously misdirected social and economic egoism, cultural and national hubris and the naked ambition of local politicians.

But the reality is more mundane than this. I watched the televised debates. Most of the sparring was utilitarian: Will we better off, especially economically. More employment, yes or no. Better social network, yes or no et cetera et cetera. So this is what will ultimately decide things.

This runs diametrically contrary to the historical ethos of European integration. The commanding moral authority of the Founding Fathers of European integration – Schumann, Adenauer, de Gaspari and Jean Monnet himself – was a result of their rootedness  in the Christian ethic of forgiveness coupled with an enlightened political wisdom which understood that it is better to look forward to a future of reconciliation and integration rather than wallow in past historical rights and identity. There were, of course, utilitarian considerations, but they were not at the normative core. The European Union is struggling today with a decisional structure which is already overloaded with 28 Member States but more importantly with a socio-political reality which makes it difficult to persuade a Dutch or a Finn or a German, that they have a human and economic stake in the welfare of a Greek or a Portuguese, or a Spaniard. Why would there be an interest to take into the Union a polity such as an independent Scotland predicated on a regressive and outmoded nationalist ethos which apparently cannot stomach the discipline of a multinational nation? The very demand for independence from the UK, an independence from the need to work out political, social, cultural and economic differences within the UK, independence from the need to work through and transcend whatever gripes there might be, disqualifies morally and politically Scotland and the likes as future Member States of the European Union. Do we really need yet another Member State whose decisional criterion for Europe’s fateful decisions in the future would be “what’s in it for us”?

Europe should not seem as a Nirvana for that form of irredentist Euro-tribalism which contradicts the deep values and needs of the Union. Thus, the assumption of Membership in the Union should be decisively squelched by the countries from whom secession is threatened and if their leaders, for internal political reasons lack the courage so to say, by other Member States of the Union.

It would be hugely ironic if the prospect of Membership in the Union ended up providing an incentive for an ethos of political disintegration. There really is a fundamental difference to the welcoming into the Union of a Spain or a Portugal or a Greece or the former Communist countries emerging from ugly and repressive dictatorships and a Scotland, which is part of a functioning democracy which recognizes in word and deed the distinctiveness and wide and deep autonomy of Scotland and its people. In seeking separation Scotland would be betraying the very ideals of solidarity and human integration  for which Europe stands.

I hope the people of Scotland will  reject the seduction of separatism and tribalism. And if they do not – well, let us wish them, as I wished the Catalans, a Bon Voyage in their separatist destiny.

Joseph H.H. Weiler is President of the European University Institute (EUI).

This posted originally appeared on the Verfassungblog, and is now reposted on this blog as part of a collaboration between UKCLA Blog and the  Verfassungblog.

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