European law makes uncomfortable reading for supporters of ‘Independence in Europe’, suggests IAN SMART


I have thought long and hard as to how to make this anything other than boring. That’s the problem with the law. In the end, I have concluded that it is best to start with a basic legal tutorial. Lawyers can skip this bit.

“What is the law” is a question to which an entire academic discipline, jurisprudence, is devoted. Indeed, a very long time ago, I survived an oral exam on that very subject conducted by the very distinguished academic and Scottish Nationalist, Professor Sir Neil McCormick. I was rather discomfited that more than ten years later, when I was introduced to him on holiday by a mutual friend, within minutes he recalled the mess I had made in confusing positive and negative rules. I certainly remembered with a shudder his observation at the time of our first encounter that “Really, I would have thought it was the exact opposite of what you’ve just said!”

Anyway, in the end I passed the exam, so I must know what I’m talking about.

The law is a set of rules agreed or at least enforced upon those subject to it. Most law remains stubbornly domestic whether civil  (e.g. The Children (Scotland) Act 1995) or criminal (e.g The Sexual Offences (Scotland) Act 2009). It can of course, under a devolved settlement also be “British” Law (e.g. The Employment Rights Act 1996 or the Misuse of Drugs Act 1972). Then there is the common law… but that’s not really necessary to explore here.

This domestic law falls to be distinguished from International Law, which is much more obviously entered into voluntarily by its participants and despite the best efforts of institutions such as the International Court of Justice, also subject in the end largely to observance for reasons of politics rather than the threat of meaningful enforcement, at least against major powers. Whether the Iraq War was “legal or “illegal”, what difference did it actually make?

But you do get international law which does have meaningful domestic meaning and observance. I choose simply by way of illustration, the Hague Convention on International Child Abduction which seeks to determine which court should have jurisdiction (and thus the final say) in cross-border child custody disputes. Nonetheless, although the Hague Convention does form part of our law, it does not do so directly simply because the British Government signed the Convention. It does so because the Convention was then enacted into our law by the terms of the Child Abduction and Custody Act 1985.

All of that is however only by way of introduction, for the law I want to write about is supranational law or more specifically, European Union law, which is the only major functioning example of supranational law. Supranational law (hereinafter EU Law) is law made outwith the otherwise sovereign United Kingdom and potentially against our wishes but which, nonetheless, has direct applicability here. The fact that we have signed up to observe more and more EU Law since the original European Community Act of 1972 is what most outrages so many of the eurosceptics, or at least most outrages the rational ones. For what it’s worth, that has never bothered me since I’ve always been in the ever closer Union camp. EU Law is however what the Scottish Government is relying on to justify their statement that an Independent Scotland would “be” (as opposed to “would wish to be”) a part of the European Union. In that they are fundamentally, deliberately or otherwise, misinterpreting the sources on which they themselves seek to rely.

The lawyers are welcome back now.

I’ve simply never understood the principled commitment of the SNP to being part of the EU. There is simply no logic to being against laws being “imposed” on us from “England” and yet utterly relaxed about them being “imposed” on us from France or Germany. Indeed, you don’t have to dig very far to find thinking nationalists who realise that themselves. For what it’s worth however, those who see a possible solution in EFTA misunderstand the rules of that organisation.

In reality, the SNP’s calculation is a short term political one. The assumption is that membership of the EU, like the now proposed membership of NATO, will provide further reassurance to the vast ranks of the unpersuaded that Independence can be achieved without anything very much changing on a day to day basis. And of course, if you read the small print, they slip this past their own activists on the basis that it can all be revisited “after independence”.

The problem is that the same considerations of Party management have led the Nationalists into a bizarre insistence that Scotland would “automatically” be a member of the European Union. But, if we were to be automatically a member a number of reasonably obvious questions could be answered now. How many MEPs would Scotland have? How many votes under the Union’s system of qualified majority voting? As the 5th richest country in the world (sic) what would the (presumably substantial) level of our net contribution? Would we still be entitled to a share of the “British” rebate? If so, why?

Now Eck’s answer to this is that all of these things would be matters for negotiation and that the EU would want us to stay in. That might well be true, although, as with so much Eck says, it is surely a matter for others than him to dictate. But in any event, something which is “automatic” does not require negotiation. I have the automatic right to enter my own house. I might be more than welcome at my brother’s house but it would still be a matter for him as to when it is convenient for me to visit or indeed as to how long I was welcome to stay.

So let’s at least accept the possibility that Brussels might not be inclined to give Eck absolutely everything he wants from his negotiations. What happens then? The only logic is that, since this whole thing proceeds on the basis that we don’t want to leave, indeed can’t afford to leave, the only conclusion possible is that we’d just have to accept whatever terms Brussels offered. Some Independence that.

Nonetheless, the Nationalists and their hangers on continue to insist that Scotland would automatically be a member of the EU, so I’ve been forced to look at their supposed authority for that.

Two things happened last week that might be a guide to the sleight of hand they are attempting here:

First of all there was this exchange at First Minister’s Questions. The full exchange is here but I have chosen the key passage for effect.

Johann Lamont:  “Yesterday, the President of the European Commission said clearly: “A new state, if it wants to join the European Union, has to apply … like any state.” That means that the new state of Scotland would  first have to apply to be a member of the European Union. If it succeeded, we would have  to adopt the euro as our currency. The First Minister has no legal advice that contradicts the President of the European Commission, does he?”

The First Minister: Let me see whether I can help Johann Lamont on such matters, as I tried to help her predecessor. Scotland is not an accession state. We have been a member of the European Union for 40 years. Every single one of us is a citizen of the European Union  (my emphasis) — even Conservative Party members, whether they like it or not. We are not in the position of a country that is not part of the European Union. [Interruption.] …There must be  negotiations, as I have said in the chamber before. However, the crucial point is that those negotiations would take place from within the context of the European Union.”

The key is in the sentence that I have highlighted, for that is the straw that is being clung to.

That’s clearer if you look at at the other statement from the SNP, In an initiative wholly unconnected to what the FM had said the day before, the completely independent (sic) YES Scotland Campaign published this article  on Friday, the day after the Holyrood exchange. Its opening sentence structure is interesting (!), as intially it appears to proceed on the basis of First Ministerial Infallibility.

It does however eventually come up with some sources other the Scottish Government. One is the much quoted remarks of Lord Mackenzie-Stuart from… eh… 1992. Now, this may be news to some, but EU Law has moved on a long way since 1992, when Margaret Thatcher was still enthusiastically enacting the Single European Act. The second is Emile Noel, who is quoted without citation, and indeed, as far as I can discover, cannot be found saying this anywhere on the internet other than on various nationalist blogs. Still, since it is on the YES Scotland website, it must be true. When did he say it? Well he died in 1996 so I think we can assume it was before that. The third is Eamonn Gallacher, but the value of his contribution is rather undermined when you read it only to discover the authorities he is relying on are… Lord Mackenzie-Stuart and Emile Noel!

Finally however there is Aidan O’Neill QC. Now he’s a horse of a different stripe altogether. I myself previously described Aidan O’Neill, when he was maintaining that the Scottish Parliament did not currently have the power to hold an independence referendum, as our foremost practising public law lawyer. That may, on reflection have been unfair to Christine O’Neill (no relation) but he is certainly at the very top of that discipline. So let’s look at what he has to say

First of all, you will see the piece is in fact a commentary on a longer piece of research which Mr O’Neill refers to but YES Scotland have, perhaps understandably, chosen to ignore. I would however encourage its reading.

The meat however is towards the end.

Interestingly you will see that Mr O’Neill’s analysis is predicated on the proposition that the key issue is EU Citizenship. And what did Eck say above?

“Every single one of us is a citizen of the European Union”

Perhaps that’s just a coincidence!

And what conclusion does Mr O’Neill then draw from this, quoted with approval by somebody writing for YES Scotland, who clearly misunderstood this article entirely?

Seen from that angle, the question to ask is whether the CJEU would consider that the fact that Scotland became independent required that all (or any portion) of the previous UK citizenry thereby be deprived of their acquired rights as EU citizens? Given the CJEU’s high theology of the primacy of EU law, and of EU citizenship as being “the fundamental status of nationals of the Member States”, it is suggested that the most likely position that the Luxembourg court would take, if faced with the question of Scottish independence, would be the second scenario – “separation”, as outlined by Thorp and Thompson above. That is to say that the CJEU would rule that Scotland and EWNI should each succeed to the UK’s existing membership of the EU, but now as two States rather than as one. Such a ruling by the Court would affirm the primacy of EU law over national and international law, confirm the role of the CJEU as the final arbiter on such weighty matters of State(s), and be presented as EU law re-connecting with, and protecting the acquired rights of, individual EU citizens.

This is obviously the bit YES Scotland (thought they) liked, misunderstanding the use of the phrase “it is suggested”, not noticing the omission of the additional two words “by me”!

But read on! The next paragraph reads:

The very form and structure of the EU Treaties might also lead the CJEU to refuse to countenance the possibility of any form of automatic secession from the EU, whether by the splitting of a Member State into two or more international persons or by any other mechanism not expressly provided for in the Treaties. (my emphasis). The EU Treaties have been concluded for an unlimited period (see Article 53 TEU).  Indeed, until the insertion of a new Article 50 TEU by the 2007 Lisbon Treaty, the Treaties contained no provision for the secession or unilateral withdrawal of Member States from the EU. Before that, a State or part thereof might leave the EU not by unilateral act, but only after negotiation and agreement; thus, in 1985, Greenland left the EU after formal amendment of the Treaty. Article 50(3) TEU now provides that the Treaties shall cease to apply to a Member State from the date of entry into force of any withdrawal agreement; or failing which, two years from the date of notification of withdrawal has formally been given by the Member State to the European Council. In sum, a Member State can now lawfully get out of the EU, but only by timeously and expressly applying so to do.

Now, the right of Scotland to unilaterally secede from the UK has never been disputed domestically. But such a view is not held across other European States in relation to their own historic nations and regions. Specifically, the Spanish Constitution expressly prohibits the unilateral secession of (eg) Catalonia and the French have always given short shrift to Corsican separatism. The English might therefore be content, legally, to let Scotland go from the UK, but the Europeans might not! THAT is what Aidan O’Neill is saying. Not what YES Scotland hoped he was.

For additional support for that European mindset we need only look  back to what the First Minister said in the Chamber last Thursday, for he quoted with approval President Barroso: “I see no country leaving and… many countries wanting to join”! These people don’t so much not do secession as find it inconceivable.

Now finally, does this mean Scotland can never be independent? No, for we could declare UDI and repudiate EU Supranational law in its entirety. International Law would allow that, I suggest. But that would not, for the avoidance of any doubt be “Independence in Europe”. Or we could, post referendum (sic) negotiate and see how we got on. But, for the avoidance of any doubt, nothing would be automatic. Don’t ask me, ask Aidan O’Neill.

Ian Smart is a lawyer and founder member of Scottish Labour Action. He is also a Past President of the Law Society of  Scotland. Follow Ian on Twitter at @IanSSmart. This post was originally published on Ian’s blog

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12 thoughts on “Scotland in Europe

  1. In 2003 the tiny Caribbean islands of St Martin and Saint Barthélemy voted to secede from Guadeloupe, which is an overseas region of France and therefore part of the EU. Crucially the newly independent islanders remained EU citizens and the territories inherited all the treaty rights and opt-outs of France and did not have to re-apply for EU membership.

    Does that “precedent” impact on your informed analysis in any way, Ian?

    1. Quite the contrary. They may still be EU citizens but their country is not a member of the EU.

  2. oK LETS TRY THIS !!

    Number of MEP’s and majority voting rights, surely would be the same as other countrys of a similar population size of 5 million plus, ie Denmark, Finland, Slovakia (all have 13 MEP’s)

    As for our contribution and possible rebate requirements, would we not be negotiating this in between our yes vote for independence 2014 and the time we actually become independent (maybe 2016).

    And as for the rest Scotland will decide its future, not the EU or Westminster.

    1. But the point is, we are being told there is no need for negotiations.

      I take it from your acceptance that there will be negotiations, that we may not get everything that we currently have from the EU – and that may include adopting the Euro?

      1. Nobody anywhere has ever said there will be no need for negotiations – of course there will. The negotiations will be over the terms of our membership, not over whether we are members or not.

        Does anyone really think there is any chance the EU is going to say “get out, and take your fishing rights, your oil and your 5 million people with you”?

        Does anyone really think Scotland will dig its feet in and say “we want double the MEPs that other countries our size get, and not have to pay anything to the EU”?

        So, given that we have two reasonable parties negotiating towards an outcome both want, it’s reasonable to say that Scotland WILL be in the EU, and there WILL be negotiations.

        As for the Euro, Sweden’s position is absolutely clear. They are committed to joining it, but there is no deadline, no timescale. Scotland’s negotiated position is highly likely to be the same.

        1. Here is where you make the same mistake as most nats.

          The debate is not about whether Scotland would become a member of the EU, rather it is a debate around the automaticity of such membership.

          If as you accept there will be negotiations then you must therefore accept membership is not automatic and would not guarantee all the exemptions we currently enjoy.

          To reduce the arguments of those who oppose you to a mere ‘you’re saying ni-one wants our oil or fish’ is one hand offensive to the argument you are faced with, while also concerning regarding your ability to robustly defend your own point of view without trivialising the opinions of others.

    2. The total number of MEPs has been agreed and the numbers divided between each nation. If Scotland separated from UK and had to increase to 13 MEPs where would the additional 7 come from?

      This would have to be negotiated which is the point here. If Scotland would automatically enter/remain in the EU the numbers would already be known and the countries who would lose representation would also be made aware of the impact of Scottish separation from UK.

      If the number of MEPs has not been agreed and negotiation on this point isd required then how are we ‘automatically’ members?

  3. With respect Ian, I think Professor McCormack might very well say were he still with us that he’d have thought your argument here was also the exact opposite of what is the case.

    The very form and structure of the EU Treaties might also lead the CJEU to refuse to countenance the possibility of any form of automatic secession from the EU, whether by the splitting of a Member State into two or more international persons or by any other mechanism not expressly provided for in the Treaties.

    The quotation you provide above from Aidan O’Neill says nothing about other EU member states and their possible attitude to Scottish Independence. All it says is that the CJEU might be led to the view that if one member state becomes two or more states, that none of them will have seceded automatically from the EU as a result of so doing.

    That doesn’t mean that all of the the states created out of the old wouldn’t need to negotiate on budget contributions, number of MEPs, votes in the Council of Ministers etc. However, the quote you have chosen does lend rather more weight to the SNP view of the continuity of Scotland within the EU than it does yours.

    As for President Barosso’s remarks about seeing no country leaving the EU, he was answering a question which he hadn’t been asked, to avoid having to answer the question which had been posed. Reading between the lines, his posiiton can probably be best summed up as ‘I don’t want to intervene in what are internal national debates, but if it comes down to it, the thrust in the EU is towards enlargement rather than reduction, so any states newly created from the old are likely to find the fact of their EU membership unchanged, until and unless they express a desire to the contrary.’

  4. Now Ian says (or suggests) “There is simply no logic to being against laws being “imposed” on us from “England” and yet utterly relaxed about them being “imposed” on us from France or Germany.”

    Of course the answer to that is ‘choice’. Scotland, as an independent country can chose the course which is best suited to the inhabitants of Scotland when it comes to the negotiations for its citizens continued membership of the EU.

  5. So, Ian Smart, when has there ever a, “United Kingdom”, legal system?
    No such thing exists or ever has existed. Furthermore, there are also several assumptions being made. First of all the legal situation must start with the laws in force when the several steps to both the Union of the Crowns and the Union of the parliaments. In 1603 the law that was in force in England, Wales & Ireland was, “The Divine Right of Kings”. That meant the Monarch’s word was law and the monarch was thus Sovereign with a veto over Parliament. However, the law of Scotland is still, today based upon the Monarch NOT being sovereign as the People are Sovereign. So in 1603 when the Scottish monarch inherited the English Realm that had annexed Wales by The Statute of Rhuddlan, 1294, and Ireland by the “Crown of Ireland Act”, 1542. He, under The Divine Right”, would have added the English realm, (that included Wales & Ireland), to his existing Scottish realm and we would all be Scottish now. As history shows the two realms did not become a, “United Kingdom”, in 1603 and Scotland remained an independent Kingdom and simple shared her monarch with England until ONLY the TWO existing realms AND the TWO existing parliaments united in 1706/7 by the Treaty of Union. In, “Article I”, the two realms are united and specifically named by the Treaty, the United kingdom of, “Great Britain”. Article II only deals with the succession to the newly created united realm and article III is short and specific. It says : –

    Article III. THAT the united kingdom of, “Great Britain”, be represented by one and the same parliament to be stiled, “The Parliament of Great Britain”.

    It specifically names the realm, (Kingdom), and the Parliament, respectively as, “Great Britain”, and, “The Parliament of Great Britain”. Makes no mention of any other partners nor stipulates either realm or parliament is superior to the other.

    Thus there is no question that Scotland is leaving, (seceding), either the Kingdom, as she is retaining the Monarchy, nor the parliament as there can be no remaining partnership when one of only two partners ends their partnership. Furthermore, as an equal partner there is no 8.4% :91.6 split of assets or debits.

  6. As competition laws in Europe forced the privatisation of water in Scotland, branches of RBS to be sold by the end of this year to Private Sector at massive loss to the taxpayer – this is exactly why we don’t want to be in Europe

    If we stay out of Europe we can renationalise our railways, renationalise our water, renationalise our electricity, gas, ferrys, buses, national savings bank, post offices, Scottish Mail, telecoms – and get the carpetbaggers out of our public services.

    We are part of the Commonwealth – and the EU is not about “common wealth” but continent wide rip off.

    The EU is forcing Greece to privatise electricity – the EU is forcing Spain to privatise it’s NHS

    I for one don’t want to be part of the EU if Scotland goes independent. We have traded our goods with Europe before the EU and we will continue to do so.

    Also this means we are free from EU rules giving foreign students cheap access to our universities and EU nationals benefits they have made no contribution to get.

    If Scotland goes independent we will be free from the EU and from the House of Lords and free to leave NATO who are illegally waging war in Libya, Syria, Mali and other independent countries around the world (and they can pay for trident themselves). We are also free of Trident.

    Scottish people need to concentrate on what the Scottish government are up to and ensure we are free from EU enforced economic and privatisation madness.

    We don’t want to be independent of Westminster rule – only to have Angela Merkel and Co forcing us to privatise our health service instead!

    If Scotland is to be independent then it will be as part of the “commonwealth” where we can strengthen our ties and trading ambitions beyond just mainland Europe.

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