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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Debate: Sionaidh Douglas-Scott: Why the EU should welcome an independent Scotland

Sionaidh-Douglas-Scott-avatar-1409859580-96x96With the Scottish referendum vote imminent, every issue of relevance to the debate on Scottish independence takes on crucial significance.

In the context of Scotland’s EU membership, there has been a polarisation of approaches, which in the arena of politics is probably only to be expected. The UK Government and ‘Better Together’ view may be roughly summarized as arguing that standard rules of international law would govern the process of an independent Scotland’s EU membership, and that Scotland would have to apply through the standard accession provision in the Treaty, Article 49 TEU, in the same way that totally new countries, such as Croatia, have done. This view assumes that in voting for independence, Scotland would also be voting to leave the EU, an approach vehemently denied by the Yes Scotland campaign.

In contrast, the Scottish Government argue that an independent Scotland’s EU membership could take the form of an ‘internal enlargement’ of the EU, using the procedure for treaty amendment in Article 48 TEU. Alex Salmond’s, characteristically trenchant response to arguments that emphasize the difficulties of Scotland’s EU membership has been to argue that,

the only threat to Scotland’s place in Europe comes from David Cameron’s in-out referendum as Westminster dances to a UKIP tune and flirts with the exit door of the EU.

My approach, set out at length elsewhere, has been to examine the issue from the perspective of the EU itself and EU law. Writing as a Scot who lives in England, and thus is not entitled to vote in September’s independence referendum, I aim to be neutral on the issue of independence, seeing good and bad arguments on both sides of the debate. However, I might add that I have been influenced by many of the writings of the late Neil MacCormick (an enthusiastic supporter of an independent Scotland within the EU) in the fields of jurisprudence, EU law and public law, fields that I have myself researched and taught for 25 years. MacCormick’s work was ever open to the newness and special nature of the EU, as well as to the need for an understanding of law alert to law’s relation to public values, and its impact on human beings. The comments below focus on the importance of an EU perspective on an independent Scotland’s EU membership, highlighting the EU as a distinctive, sui generis and new type of legal organisation. They argue that a strong case can be made for Scotland’s continued EU membership on the basis of EU law itself. Bearing this in mind, the crucial issues seem to be these:

  1. The issue of a newly independent Scotland’s EU membership is not addressed explicitly by EU law

Within EU law, there exists no precedent for what happens when a territory of an existing Member State becomes independent, and wishes to retain EU membership. The EU treaties do not provide for such an event. While Article 49 TEU deals with the situation of new applicant countries, Article 48 TEU deals with amendments to the treaties by existing members, but neither deal with Scottish situation directly or explicitly. The process by which a separate Scotland may become a member of the EU is therefore subject to speculation. Notwithstanding, the UK Government has taken the view that an independent Scotland would have to reapply for EU membership using the Art 49 procedure. This is also the view taken by former Commission President Barroso, and some academics and practitioners. However, this view is not inevitable, and may not even be well reasoned.

  1. Barroso and the UK Government view ignores the distinctive nature of EU law

The problem is that this view misconstrues both the EU itself and EU law. In stating that: ‘If a country becomes independent it is a new state and it has to negotiate with the European Union’, Barroso was looking to international law, rather than the more specific and singular concepts that EU law has built up over its near 60 year history.

The EU is a sui generis organisation and the European Court of Justice has long held that, while a creation of international law, it constitutes a distinctive new legal order.As the Court famously stated in Van Gend en Loos, ‘the Treaty is more than an agreement which merely creates mutual obligations between the contracting parties’. Perhaps the most striking way in which EU law early distinguished itself was by its focus on individual rights (not traditionally a concern of international law). Moreover, EU law does not have a straightforward relationship with international law, in which international law always takes priority. Indeed the European Court has on occasion refused to apply international law measures on grounds of their incompatibility with EU law, such as UN Security Council Resolutions in the 2008 Kadi case.

EU law therefore manifests itself as a new and singular legal order that goes beyond the traditional state-based concerns of international law, differentiating itself from other international organisations. EU law also characteristically takes a pragmatic and purposive approach to pressing issues that are not dealt with by specific treaty provisions. There was no explicit provision in the treaties capable of dealing with the situation of German unification in the 1990s. But the (then) EEC Institutions responded to this event in a practical and expedient manner, enabling a united Germany to become a member of the EU without long drawn out negotiations, accession proceedings or legal wranglings. I argue that such a pragmatic approach should be applied in the case of Scotland.

  1. EU law rather than international law governs the issue of an independent Scotland’s membership

In any case, those who provide support for the UK Government’s view, such as Alan Boyle and James Crawford, acknowledge that membership of international organizations such as the EU, ‘depend on the particular constitution or rules of each organization’,[1] rather than deriving from one comprehensive rule of international law. It all depends on the rules and practice of each organization and is often determined by negotiation and agreement rather than law. And many international organisations automatically recognise secession states as members.

However, in spite of acknowledging that even under international law, the practice is to look to the distinct rules of the specific organization, for some reason Boyle and Crawford do not consider that EU law provides an affirmative answer to the continuation of Scottish membership. In contrast, I argue that the particular constitution and rules of the EU provide sufficient resources for an independent Scotland to continue EU membership  through the treaty amendment route in Art 48 TEU. I shall now consider this argument in more detail.

  1. EU law provides the resources for Scotland’s continued EU membership

There are sufficient resources in EU law to deal with Scotland’s continued EU membership, a matter for which Boyle and Crawford – and others – do not make allowance. The relevant provisions in particular are Arts 4(3) and 50 TEU, but EU citizenship and EU values and principles also provide some pretty compelling reasons.

  1. THE PRINCIPLE OF SINCERE COOPERATION AND THE RELEVANCE OF ART 50 TEU

Art 4(3) TEU sets out a ‘principle of sincere cooperation’, by which the EU and Member States shall ‘assist each other in carrying out the tasks which flow from the Treaties’. It is clear that one of the most significant tasks that flows from the EU Treaties is the promotion of the EU’s Single Market.

A salient objection to the Barroso and UK Government position is that it would foster immediate discontinuity within the Single Market. For, according to this view, on becoming independent, Scotland would, as a non-EU state, be ejected from the EU. Its exodus would be automatic. Yet it is not clear from which treaty basis such an automatic ejection derives.

Automatic ejection certainly stands in contrast to the formal procedure for withdrawal from the EU in Article 50 TEU. Indeed, Article 50 is the only provision in the EU treaties for withdrawal from the EU, and it sets out procedures and obligations that apply to both the withdrawing Member State and the EU institutions, with the aim of minimizing dislocation and disorder. It obliges them to negotiate and to conclude an agreement, providing a 2 year period to do so, thus confirming that withdrawal is not to be automatic. The example of Greenland, which took well over 3 years to withdraw from the EEC as then was, illustrates just how long it can take for a territory to withdraw.

The presence of Article 50 acknowledges that acquired EU rights and mutual dependencies cannot be immediately extinguished. For example, nationals of other EU member states have directly enforceable EU law rights in Scotland regarding free movement of workers, free movement of goods, and freedom of establishment. Scottish nationals possess corresponding rights in other Member States. If Scotland’s membership were automatically terminated they would become illegal immigrants. The existence of Art 50 evidences the lack of any capacity in EU law automatically to terminate such rights, and Art 4(3) illustrates the obligation of EU institutions and states to recognise acquired rights and obligations through a duty of sincere cooperation.

2. EU CITIZENSHIP

A separate but related argument relies on the privileged position of individuals as subjects of EU law, to emphasize the crucial importance of EU citizenship. According to Article 9 TEU and Article 20 TFEU, ‘Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to national citizenship and shall not replace it.’ However, in 2001 Grzelczyk case, the European Court famously declared that ‘Union citizenship is destined to be the fundamental status of nationals of the Member States’, and, from the relatively humble roots of EU citizenship in the Treaty of Maastricht, the European Court has added flesh to the bones of this concept through a series of cases, most recently Rottmann (2010) and Zambrano (2011).

If Scotland were to lose its EU membership on date of independence, its citizens would still be EU citizens, because they will still hold UK nationality (unless, for whatever reason, they choose to revoke and disown their UK nationality, or the UK decides to revoke their UK nationality, which seems unlikely).

To be sure, the doctrine of EU citizenship cannot by itself engender automatic membership of the EU for an independent Scotland. It would be necessary for the treaties to be amended. However, we should not underestimate the central importance of EU citizenship to the issue of an independent Scotland’s EU membership, which requires that, as Aidan O’Neill argues, ‘rather than analyse the matter from the classic viewpoint of public international law (…) EU law requires one to look at the issue from the viewpoint of the individual EU citizen.’  Given this importance, it is unlikely that the European Court would consider that Scottish independence deprived Scots of their acquired rights as EU citizens.

3. AN EU OF VALUES

A focus on the Single Market should not eclipse fundamental issues that inspired the original EEC in the post-war period, namely a search for peace and stability in Europe and the protection of democratic values. Neil MacCormick found an apt description when he described the EU as a ‘commonwealth’ whose members have certain vital interests of peace and prosperity in common. Scottish self-determination is part of this democratic development, as it has evolved through the devolution process.

Democracy is proclaimed as one of the EU’s values in Art 2 TEU and the EU is eager to vaunt its adherence to these values. As such, the EU’s very raison d’être is at issue here. How could an organization such as the EU, that has promoted the cause of democracy at home and abroad, act in such a way as to dispossess Scots of their acquired rights and EU citizenship as a result of Scotland using the democratic right to vote for independence? Such a move would seriously undermine the EU’s claim to be a promoter of democracy.

The EU’s respect for fundamental rights also provides a further argument. There exists a compelling school of thought in international law that human rights treaties automatically bind successor states.[2] The European Court in van Gend stressed the importance of rights. While the TEU and TFEU may not be predominantly human rights treaties, the EU Charter of Fundamental Rights is most certainly one, and, under Art 6(1) TEU, it has the same legal value as the Treaties. Moreover, in the 2008 Centro Europa 7 case, Advocate General Maduro asserted that, ‘Protection of the common code of fundamental rights accordingly constitutes an existential requirement for the EU legal order.’  In Kadi, the European Court stated that respect for fundamental rights is an integral part of the EU legal order. So there is a strong argument to be made that, as a Union based on human rights, EU law requires the recognition of the invocability of EU fundamental rights by Scottish citizens, rather than their termination by independence.

In any case, at the very time that members of the UK Parliament are trying to pass legislation to disapply the Charter of Fundamental Rights in the UK,[3] there is a dignity, if not an irony, in calling on fundamental rights as an added ground for Scotland’s continuing membership of the EU.

Therefore the EU and is member states should have regard to the values and principles of the EU, and indeed its very reason for existence, instead of making statements that counter and undermine its character. The case of Scottish independence makes very clear the need for the EU to self-interrogate as to its values, and to use arguments with a public reason character that take it beyond an instrumental economic rationale or a grounding in international law. I believe that the European Court, given its past record for purposive and expansive rulings that stress the importance of individual rights, provides in the rich body of EU caselaw an ally for Scotland in its search for a smooth transition to EU membership in its own right. The EU is very much a creature of law and the law is working in Scotland’s favour.

  1. A Principled and Pragmatic approach

However, it is not just EU law that can provide support for the Scottish case. More generally, the EU adopts a pragmatic, serviceable and functional approach that has enabled it to weather many apparently intractable crises, in which the treaties have been lacking in specific guidance. This ad hoc, practical approach is also helpful to Scotland, ensuring that both it, and the EU, can get through the issue of Scottish independence without a full-blown crisis. A way would be found, despite all the Cassandra like warnings emanating on this matter.

I have argued that the principled and practical route to take, should Scotland choose to become independent in September 2014, is that of Article 48 TEU, that deals with Treaty amendment. This would be a form of internal enlargement for the EU, and in this way, Scotland’s uninterrupted membership of the EU could be preserved. Such a route takes account of both member states’ and EU Institutions’ obligations under Article 4 TEU, as well as taking seriously the EU’s proclaimed statement of values, which include democracy and fundamental rights.

However, perhaps I am perhaps not so very far from those of my colleagues who insist on the Article 49 route. While preferring the Article 48 internal enlargement route, the primary concern is that Scotland’s EU membership remain uninterrupted, and that acquired rights and obligations be preserved. The fear is that the Article 49 route, by transforming an independent Scotland into a non-EU, candidate state, would cast Scotland into a non-EU wilderness. However, as noted, the EU characteristically takes a pragmatic approach to pressing issues that are not dealt with by specific treaty provisions. There was no explicit provision capable of dealing with German unification in the 1990s. But the (then) EEC responded to this event in a pragmatic manner, enabling a united Germany to become a member without protracted negotiations. I argue that such a pragmatic approach should be applied in the case of Scotland.

Some warn of the danger of a challenge to an Art 48 treaty amendment being made by another member state, leading to protracted litigation, during which time Scotland’s membership remains in legal limbo. But even if there were to be such a challenge, would it be likely that Scotland’s membership be suspended in the interim? I doubt it.

While undesirable from the point of legal certainty, it is likely that, if legal challenges were made to Scottish membership, or if negotiations over Scotland’s membership were not completed by March 2016, or even if the Art 49 accession route were to be followed, then a provisional arrangement would be made to continue Scotland’s existing relationship with the EU, to ensure that EU citizens’ rights and obligations were respected, and the Single Market not compromised. This would not be the same thing as a Scotland ejected from the EU, as warned by disaster mongers of the UK government. The very nature of EU law, and its pragmatic and purposive approach, lead me to be skeptical as to any alternative result, other than continuity and respect of acquired rights and obligations.

  1. Conditions of membership

Finally, problems in securing certain conditions of Scotland’s EU membership are often cited as insurmountable obstacles to continued Scottish membership – in particular the issues of the UK Budget Rebate and opt-outs from the euro and Schengen. Space prevents any detailed consideration of these matters here. However, while these raise some important issues, I do not believe them to be the huge obstacle that some do, largely on the basis of the arguments already made elsewhere, namely the likelihood of a pragmatic and practical approach being taken by the negotiating parties. I do not, however, see any way that an independent Scotland could continue to charge university fees to rUK students. Such a measure would simply be inimical to key provisions of EU law on free movement and non-discrimination.

  1. Conclusion

In closing, we might remember the words of the late Neil MacCormick, who wrote of the EU in the following words:

For this is a new form of political order, a new kind of ‘commonwealth’, which offers the hope of transcending the sovereign state rather than simply replicating it in some new super-state . . . It creates new possibilities of imagining, and thus of subsequently realizing, political order on the basis of a pluralistic rather than a monolithic conception of the exercise of political power and legal authority.’[4]

I cite MacCormick at length because I believe the nature of the EU – this ‘new kind of commonwealth’ – to be crucial here. EU law is not just a branch of international law. It is a new kind of legal order, very much concerned with individuals and their rights. It cannot ignore those individuals and their rights in the case of an independent Scotland. This issue should not be straitjacketed by existing modes of international law, nor by the exigencies of the ‘monolithic conceptions’ of political power of which MacCormick writes. Whatever the result on September 18, the EU would do well to remember its heritage, its special nature and its mission for the peoples of Europe, if it wishes to capture the hearts and minds of its citizens. Otherwise, the causes of euroscepticsm will flourish, and arguably, we will all be worse off.

[1] Boyle and Crawford, in their Opinion at para 184, refer to Article 4 Vienna Convention on the Succession of States in Respect of Treaties 1978, which expressly states that succession to constituent instruments of an international organization is: ‘without prejudice to the rules concerning acquisition of membership and without prejudice to any other relevant rules of the organization.’

[2]Such a view is evidenced by the UN Human Rights Committee’s General Comment No. 26 on the continuity of obligations

[3]House of Commons European Scrutiny Committee, ‘The application of the EU Charter of Fundamental Rights in the UK: a state of confusion’ Forty-third Report of Session 2013–14.

[4]N MacCormick, Questioning Sovereignty  (OUP, 1999) at 191.

Sionaidh Douglas-Scott is Professor of European and Human Rights Law in the University of Oxford.

This article previously appeared on ScottishConstitutionalFuture.org. It was reposted on Verfassungblog, and is now reposted on this blog as part of a collaboration with the Verfassungblog.

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Robert Thomas: Administrative Justice, Better Decisions, and Organisational Learning

thomasEvery year, government takes millions of decisions on matters such as individuals’ entitlement to social security, their immigration status, and tax liability. Often, people can challenge negative decisions to a tribunal or lodge a complaint. This is the wide and variegated field known as administrative justice, that area of the legal system which most engages people, but which is often overlooked (there are more hearings before administrative tribunals than double the combined number of civil and criminal justice hearings/trials). Hence the establishment of the UK Administrative Justice Institute.

For many years, there have been significant and pervasive concerns about the quality of initial administrative decisions. Poor initial decision-making means unnecessary appeals and challenges, increased costs and time, and stress for the individuals involved. The “right first time” agenda has been advanced as a solution to this problem. The argument goes as follows. If government could make better initial decisions, then this would reduce the volume of appeals, reduce costs, and be less stressful for individuals who. In this blog, I explore the issue of the quality of administrative decision-making and suggest some possible solutions. My argument, developed in more detail in a forthcoming paper, is that government departments need to engage better organisational learning in order to raise decision-making standards.

The standard of administrative decision-making

People often have to engage with government as part of their day to day life. If someone wants a benefit, or an immigration status, to know what amount of tax they need to pay, temporary accommodation because of homelessness, or which school her child will attend, then dealing with a government agency is inevitable. What is the quality of the decisions produced by government departments and other agencies? It is impossible to know for certain because of the lack of system-wide data, but consider the follow. According to the Ministry of Justice’s tribunal statistics, in 2013-14, some 308,033 appeals against the refusal of Employment and Support Allowance by the Department for Work and Pensions were decided by the First-tier Tribunal (Social Entitlement Chamber) of which 44 per cent were allowed. The appeals cost £69.9 million. The appeals took an average of 25 weeks – nearly half a year – to be heard and decided. In the same year, the First-tier Tribunal (Immigration and Asylum Chamber) determined 67,449 immigration appeals of which 44 per cent were allowed. The average time to determine an immigration appeal was 28 weeks. In special educational needs cases, some 84 per cent of appeals are allowed (albeit that many appeals are conceded or withdrawn before they proceed to a tribunal). These success rates raise questions about the quality of initial decisions.

Such statistics can be supplemented by other evidence. In both the social security and immigration contexts, official reports have commented that the overall quality of decision-making leaves considerable room for improvement. In 2012, the Commons Public Administration Select Committee noted that government should aim to produce decisions which are right first time and command a high degree of confidence: “The scale of the injustice and the cost to the taxpayer caused by poor decision-making are wholly unacceptable.”

Bear in mind that tribunals only ever see those decisions where the individuals concerned appeal. But many people do not appeal for a number of reasons unrelated to the quality of the initial decision. They may lack self-confidence or be unable to access advice. What is the quality of all those initial decisions that are not challenged? It is impossible to know for certain, but there is reason to suppose that the quality of unappealed decisions is of variable quality.

It is important not to assume a simple correlation between appeals and initial decisions whereby the proportion of successful appeal is a clear indicator of the quality of initial decisions. Appeals can be allowed because new evidence is available, or because the tribunal takes a different view of the same evidence. Nonetheless, the standard of decision-making is often inadequate and could be improved. For instance, if appeals are regularly being allowed because new evidence is being supplied on appeal, then shouldn’t the department review its decision-making procedures to find out how such evidence could be captured through the administrative process rather than on appeal? The same point applies if a department and a tribunal are adopting significant differences of approach in how they handle particular appeals – for instance, if the Home Office is regularly refusing asylum claims lodged by nationals from a particular country and the First-tier Tribunal is allowing them. In such circumstances, the department should seek to learn from the tribunal – or, at the very minimum, exchange views with the tribunal to uncover which factors are driving the differential approaches.

Poor decision-making arises for a variety of different reasons, such as the skills and training of initial decision-makers and the environment in which they work. Decision-makers may be under pressure to make decisions quickly or lack proper guidance. Sometimes, the ‘culture’ of decision-making may exert a negative influence. For instance, it has long been argued that immigration decision-making is informed by a culture of disbelief. Resorting to appeal systems to correct poor initial decisions is costly, inefficient, and a source of stress and hardship for claimants. How can government do better?

Organisational learning

To improve the quality of public institutions and their decision making, government agencies need to become learning organisations that seek to improve their performance by learning from their mistakes. Organisational learning is an area of knowledge within the field of organisation theory that studies models and theories about the way an organisation learns and adapts. In the public sector context, organisational learning has been defined as “the ability of an organisation to demonstrate that it can learn collectively by applying new knowledge to the policy process or innovation in policy implementation” (R. Common, “Organisational Learning in a Political Environment” (2004) 25 Policy Studies 35, 37).

Organisational learning occurs when individuals within an organisation experience a mismatch between intended and actual results and inquire into it on the organisation’s behalf. This inquiry seeks to uncover the reasons for the disparity and ways of restructuring activities and behaviours so as to reduce the risk of such a mismatch re-occurring. To become organisational, the learning and understanding that results from the inquiry should become be taken up not just by isolated individuals within an organisation; rather, it needs to become embedded within the organisation’s cultures and routines. Organisations learn when they identify appropriate lessons from history which are then encoded into routines that guide future behaviour.

Government agencies that engage in organisational learning would start from the position that they would seek to produce good, robust, and well-reasoned decisions. It is dubious to suppose that any government department could ever produce excellent decisions all of the time. The next option is for departments to engage in organisational learning. Departments could do this by collecting information on their decisions, interpreting its relevance, drawing out appropriate lessons, and then embedding those lessons within their memory and processes. Departments could positively seek out feedback on their decisions with a view to enhancing decision quality. An allowed appeal would be seen not as a defeat, but as a learning opportunity. As James Joyce once noted, “Mistakes are the portals of discovery“.

How can the standard of decision-making be improved?

The challenge facing departments is precisely how to engage in organisational learning in order to improve their decision-making. Departments are often poor at organisational learning, especially those engaged in mass-transaction processing. Consider, for instance, the problems over recent years that have affected the Department for Work and Pensions, HM Revenue and Customs, and UK Visas and Immigration.

The prevalent impression is that departments accord a low priority to decision-making and to organisational learning. They normally focus upon processing the entire volume of incoming decisions rather than producing good robust decisions in each case first time. Once a decision has been made, it is no longer the agency’s concern. Tribunals are seen as a safety-net for correcting poor decisions – or, at worst, an interference. There is also the question of incentives for individuals inside departments. For instance, in January 2014, it was reported that Home Office presenting officers had been set a target of winning 70 per cent of asylum appeals and were rewarded with gift vouchers – hardly conducive to ensuring good decisions.

There are, though, a number of way in which departments can engage in organisational learning to enhance the quality of initial decision-making and which are outlined here. First, if tribunals are allowing appeals because additional evidence is only being considered for the first time on appeal, then departments could seek to ensure that such information is collected during the initial processing stage. Departments could review decisions before they are sent out to ensure that the reasons given are adequate and they can introduce reconsideration systems which enable the claimant to present further relevant evidence. They could also introduce quality assurance mechanisms whereby senior caseworkers review a sample of decisions to ensure they are robust. It should go without saying that the operation of such processes should be transparent.

Second, departments could draw upon the large amount of information that already exists on their decision-making contained in tribunal decisions. Most of the time, when a tribunal decides an appeal, the decision will simply be inserted into the case file and that will be it. A tribunal decision will usually only be examined if the department is thinking about an onward appeal. Yet, this is to overlook an important source of feedback. As the Independent Inspector of Immigration has noted, “appeal determinations provide an essential source of feedback for decision-makers, which is likely to result in improved decision quality”.

Previous efforts by tribunals to report on the standard of initial decision-making have often been unsuccessful. Between 1998 and 2008, the President of social security appeal tribunals produced an annual report on the standards of decision-making. The Tribunal President, Judge Robert Martin told the Commons Work and Pensions Committee in 2010 that he believed no one within DWP had listened to the conclusions and recommendations detailed in his annual report.

However, the importance of tribunal feedback is increasingly recognised. In 2013, the Home Affairs Committee noted that the substandard quality of asylum decision making is compounded by the inability of case workers to learn from their mistakes. The Independent Chief Inspector Immigration recommended in 2009 that the Home Office analyse the reasons why it was losing appeals in order to improve the standard of decision-making, but that recommendation had not been fully implemented. Recognising that not all successful appeals are the result of poor decision making or administrative failure, the Committee recommended that decision-makers should view every successful appeal as a learning opportunity. When an appeal is upheld, the decision-maker should, as a matter of course, have this drawn to their attention and be given the chance to discuss the reasons for the appellate decision with a more experienced peer or senior colleague.

The Ministry of Justice is also giving greater focus on improving initial decision-making as part of its strategy on administrative justice. The most significant and developed feedback scheme to be introduced has been the summary reasons project in social security appeals. Since 2013, the Department for Work and Pensions has been working with HM Courts and Tribunals Service to improve feedback from the tribunal. The Tribunal has produced summary reasons in a number of allowed appeals. A sample of summary reasons was then been analysed by the Department. According to the Department, the project has demonstrated the value of collecting and analysing tribunal feedback, which has resulted in training for decision-makers, reviewing the guidance for decision-makers, looking to identify trends, and pulling out useful case studies. In July 2014, Work and Pensions Committee welcomed more extensive feedback from appeals through the provision of summary reasons by tribunal judges, but noted that the feedback must be used effectively by the Department to improve the initial decision-making process.

There are other mechanisms available. Presenting officers from departments can provide feedback to initial decision-makers – though a recurrent source of concern has been the declining levels of attendance at appeal hearings by presenting officers. Tribunals can produce guidance decisions on how problematic and complex factual, procedural and legal issues should be handled. They can also engage in dialogue with departments. The Senior President of Tribunals can also raise matters of concern in his annual report on tribunals.

Another mooted solution has been to introduce a polluter pays principles, that is, to have financial incentives for departments to produce better decisions by requiring departments to contribute to the cost of appeals by reference to the proportion of successful appeals. This idea has been widely raised discussed as an incentive to induce departments to produce better decisions – the Government does not appear to be keen upon it – but it could have a role to play.

Conclusion

The standard of initial decisions is variable, but government can improve by engaging in organisational learning. This requires departments consciously to assume responsibility to understand the causes of poor decisions, and to seek to improve. They should seek to identify appropriate lessons from both failures and successes and expand their capacity to learn from the past to improve for the future. In particular, tribunal decisions contain much useful data on the quality of decision-making and on the nature of decision-making. Departments should collect and analyse such feedback and enter into dialogue with tribunals and other bodies. Some have made initial efforts to learn from tribunals, but much more could be done. Only if departments are able to improve the quality of their own learning, will we then start to see better quality initial decisions.

Robert Thomas is at the School of Law, University of Manchester.

This blog draws upon a forthcoming paper in Public Law, available here.

Suggested citation: R. Thomas, ‘Administrative Justice, Better Decisions, and Organisational Learning’ UK Const. L. Blog (9th September 2014) (available at http://ukconstitutionallaw.org)

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Mark Elliott: A lack of constitutional imagination lies at the heart of the Scottish independence debate

Mark

Opinion polls suggesting that the pro-independence campaign in Scotland may have taken a narrow lead have had an electrifying effect, causing the mainstream UK media and political establishment — both of which have been curiously disengaged from the debate so far — to sit up and take notice. The point of this post is not to make the case in favour of the Union. Rather, the point is to suggest that the nature of the debate — premised as it is on bald agreement or disagreement with independence — displays a lack of constitutional imagination.

The question lying at the heart of the independence debate appears to be an unambiguously binary one. Should Scotland be an independent country? Yes or no? But the terms upon which the debate has largely been conducted — particularly by those arguing in favour of independence — have often implicitly, and sometimes explicitly, eroded the ostensibly binary nature of the question. The obvious example is the pro-independence campaign’s insistence that an independent Scotland could and would continue to use the pound. The strategy is clearly an attempt to allay fears about independence by relying upon the relationship that — it is said — would persist between a newly independent Scotland and the United Kingdom. (I pass over, for the time being, the obvious point that while the question whether it should become independent is rightly and exclusively one for Scotland, the terms of an independent Scotland’s relationship with the United Kingdom manifestly should not and would not be settled only by Scotland.)

The controversy about currency arrangements is, however, merely a facet of a broader characteristic of the independence debate. A fundamental difficulty that has beset it since day one is that, in constitutional terms, we do not know what either a “yes” vote or a “no” vote would actually mean. Exactly how independent of the UK would an “independent” Scotland be? Conversely, what sort of Union would a post-referendum non-independent Scotland be a part of? The answers to these questions have never been clear, and nor — to the extent that they exist at all — have they remained constant. Both camps have shifted position over time. The pro-independence campaign has increasingly invoked the relationship which — it is said — would endure between an independent Scotland and the United Kingdom. Equally, however, the Better Together campaign has — particularly in recent months — placed growing emphasis upon the prospect of yet-greater autonomy for Scotland within the Union. The net result has been a degree of convergence, as independence has morphed into independence-lite, while the case for the Union has developed into a case for a (somehow) different kind of Union.

On one level, the way in which the two different camps have shifted their positions over the course of the campaign can be ascribed to nothing more than the practical political need to appeal to voters who occupy the middle ground. Viewed from a different perspective, however, the sort of convergence that has occurred during the course of the independence debate reveals something more profound about the realities of modern constitutionalism. One of those realities is that the sort of hard distinctions —independent or not independent? — that seem implicit in the type of question which voters in Scotland will answer in just under two weeks’ time are increasingly inapt. In the sort of economically, institutionally and legally interconnected modern world of which an independent Scotland would aspire to form a part, the very notion of independence is uncertain at best, anachronistic at worst. Independent of what, exactly? Not, it seems, of the United Kingdom — with which, according to pro-independence campaigners, Scotland would retain very strong connections. Nor would Scotland (when or if permitted entry) be independent of the wider community of nations that exists thanks to institutions such as NATO, the Council of Europe (and its Convention on Human Rights) and the European Union.

The fact that an independent Scotland would remain connected in these ways can be — and has been — presented as part of the case for independence, on the ground that independence need not raise the (to some) off-putting prospect of going it entirely alone. At the same time, however, this vision of a post-independence Scotland’s position in the wider world simply serves to demonstrate the elasticity — and, ultimately, intellectual emptiness — of the notion of independence. The devil is in the detail: and detail, particularly about how Scotland’s relationship with the rest of the United Kingdom would be calibrated, is notable by its absence.

Yet this argument cuts two ways. It can just as easily be directed against the “no” campaign once it is acknowledged that the notion of the Union, whose defence lies at the heart of that campaign, is at least as elastic as the the idea of independence. Just as independence can be conceived of in terms ranging from total isolation to far-reaching integration with British, European and international institutional arrangements, so can the Union be conceived of in an enormous range of radically different ways. The nature of the Union that joins together the four constituent nations of the United Kingdom is not cast in stone: a fact that is borne out both by constitutional history and by constitutional theory. The relationship between the centre and the home nations, as well as between the home nations themselves, has been significantly re-conceived during the life of the Union, including, perhaps most notably, in the recent past through the introduction and subsequently deepening of devolution itself. As far as constitutional theory is concerned, one of the most-vaunted strengths (as it is seen by some) of the United Kingdom’s unwritten constitution is its flexibility: its capacity to adapt itself to changing political, cultural and institutional circumstances. It follows that choosing to reject or retain “the Union” is a choice that cannot be meaningfully be made by reference to any abstract or fixed notion of what the Union is, since no such notion exists. Rather, it is a choice that must, if it is to be a meaningful one, be informed by a sense of what shape the Union would take were Scotland to remain within it.

Here, then, we find what might be regarded as the most fundamental of all the difficulties with the independence debate. It presupposes that “independence” and “Union” are binary concepts that bear a fixed meaning, rendering each antagonistic to the other. The reality, however, is that neither term need — or does — bear such a meaning. Each instead represents a very wide spectrum of constitutional possibilities, the breadth of which is such as not merely to erode the distinction between the two concepts but to result in overlap. (Would, for example, an independent Scotland bound within the terms of a currency union enjoy greater “independence” than a non-independent Scotland endowed with extensive fiscal autonomy?)

So far, the main Westminster parties’ ability to reimagine the Union appears to be confined largely to the possibility of more-extensive devolution. This much was trailed by the main United Kingdom political parties in June; most recently, former Prime Minister Gordon Brown — apparently with the support of all three of the main pro-Union parties — has indicated that a “no” vote will result in the conferral of additional powers upon the Scottish Parliament by means of an expedited legislative process in Westminster. This, however, discloses only a very limited amount of constitutional imagination. In particular, it does not follow that devolution, or devolution in its current form, should necessarily form the constitutional architecture within which the future of the Union is considered. Properly understood, the question that now faces the United Kingdom is not concerned only with the amount of authority that is located outside London, but with the nature of that authority, the constitutional security of the institutions that wield it, and the constitutional framework within which these issues fall to be determined. The most obvious alternative to the present system is federalism, but here, too, we must be careful. Like devolution and independence, federalism is a broad church, and it is certainly no part of my argument that (say) a German or US-style federal model should be proposed in the United Kingdom as a panicked response to the now-real possibility of a “yes” vote in Scotland. The Scottish referendum — whatever the result — may well prompt fundamental rethinking about the nature of the United Kingdom’s constitution, but its shape must be determined reflectively and inclusively, not on the back of an envelope as the clock ticks. With less than two weeks until decision day, now is not, therefore, the time to begin confronting the technical minutiae of the sort of constitutional future to which the United Kingdom — whether or not shorn of Scotland — might aspire.

The point, rather, is a simpler one. It is that the decision which will fall to be made in Scotland on 18 September is one that is too complex to be distilled into a binary choice between “yes” and “no”: “independence” or “Union”? With only a little imagination, it is readily apparent that the geometry of the constitutional arrangements that might describe Scotland’s relationship with the rest of the United Kingdom are not confined to (on the one hand) the status quo and (on the other hand) independence. A “yes” vote on 18 September will most likely represent an irrevocable choice, foreclosing upon the possibility further exploring the part that Scotland might play in a post-referendum Union. A “no” vote will almost certainly cause that possibility to be explored —and explored, it is to be hoped, in a way that is at least open to possibilities more imaginative than merely the devolution of additional competence to Edinburgh.

Such options would have to be considered on a pan-United Kingdom basis, not only in the interests of fairness but also of pragmatism: substantial revision to the United Kingdom constitution without broad support across the Union would almost certainly stoke resentment, hastening the disintegration of the Union rather than making its survival more likely. But after 300 years, it is surely worth pausing to consider what might lie between the parameters presently represented by independence and the status quo. An understandable response to any newly discovered enthusiasm for United Kingdom-wide constitution reform is that is might be nothing less than a cynical ploy designed to ward off a constitutional crisis. So it might. But it would be mistaken to conflate impetus and consequence. Few countries end up contemplating, far less enacting, significant constitutional reform unless events provoke a “constitutional moment” that triggers such action. A “yes” vote would undeniably make 18 September 2014 Scotland’s constitutional moment. But a “no” vote might just make it the United Kingdom’s.

Mark Elliott is a Reader in Public Law at the University of Cambridge. This post was first published on his blog, Public Law for Everyone. Mark can be found on Twitter as @DrMarkElliott.

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