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