“Yes to the UK” is a blog dedicated to keeping the United Kingdom of Great Britain and Northern Ireland together, ”run by a passionate (Scottish) unionist as a forum for presenting the case for Union. It is intended to highlight the many benefits of continued unity and to highlight the many flaws in the separatist argument.
This a cross-post of an article examining further the intricacies of Scottish membership of the European Union in the case of Scotland separating from the rest of the UK.
The legalities of splitting up the UK have come under scrutiny this week. Pressure continues to build on the SNP government, who are being asked to publish the advice they’ve been given – or at least confirm they HAVE some – about the potential implications of a split on Scotland’s position in Europe. I’ve spent some time looking at this and the wider implications under international law, and thought I would make my observations the subject of this latest Lies, Damn Lies and Nationalists post.
Before continuing, it’s important to note that this is a VERY complex issue. As a result, today’s post is quite long (it takes a lot of explaining!) and even then can’t confirm with absolute certainty what might happen. Indeed, we’ll never know for sure unless we’re actually faced with the situation.
That said, it’s clearly too important an issue to ignore just because it’s complicated. So, to business…
The first thing to clear up is this ongoing spat over who has what advice.
On the one hand we have Holyrood, which refuses to share what they’ve been told, or even to confirm they’ve been told anything at all. Indeed, they’re so opposed to tipping their hand that they’re apparently intending to spend public money on trying to keep their cards hidden.
On the other hand we have Westminster, which is notably silent on this issue. In fact, their silence is part of the SNP’s justification for their position; they point – with more than a little hypocrisy (given their frequent and vocal criticism of all things Westminster) – to the UK Government’s own silence as an excuse for theirs.
Unfortunately, though, this alleged silence from Westminster is not true. Far from keeping things secret, they have completed research into it and have made the results available in a parliamentary briefing (which you can find here). To summarise it very briefly, the paper discusses the different possible scenarios and ends by concluding that there is NO definitive answer in law. It would, so says the author, primarily come down to political negotiations.
Now, I don’t dispute that Westminster has not given this report the “Ta da!” presentation being asked of the SNP. However, it’s hardly their place to do so, especially against the backdrop of a Scottish Government that continues to insist it be left to run the whole referendum on its own. Indeed, the fact that they’ve chosen not to enter into an “I’ll show you mine if you show me yours” contest with Holyrood could be for any number of reasons; perhaps they want to avoid any further tit-for-tat exchanges with MSPs, or else they don’t want to yet again be accused of interfering?
In any case, the conclusion of this briefing leads on to the second big falsehood the separatists are guilty of perpetrating: claims that Scotland WILL be considered a successor state to the UK and thus keep its place in the EU etc – not MIGHT, or even SHOULD, but WILL – are blatantly false. Indeed, the fact that it is IMPOSSIBLE for them to be so certain is no doubt the main reason for their caginess.
So if the SNP are wrong to assert with such certainty that they’re right, what can really be said about the legal implications of dividing up the UK?
Of the three, it’s separation that the SNP would like Scots to believe wholeheartedly in. That’s a somewhat ironic development, given their vociferous objection to any use of terms like “separation” by the likes of the BBC and other media. After that, their second choice is dissolution, while they apparently refuse to entertain the possibility of C&S at all.
However, the third option of C&S is the one unionists would have you believe IS the most likely outcome. Specifically, we suggest that rUK would be considered a continuation of the current UK, while Scotland would be a new country.
But which is right? It is, as I’ve said, by no means certain, but it is possible to present what might be the most likely candidate by considering the legal and political circumstances of each.
Option 1 – Separation
In this scenario, the UK would be judged to have legally separated into two new countries – rUK and Scotland – which would BOTH be considered successors to the current UK. This would entitle both parties to inherit the UK’s treaty obligations, including for instance its EU and NATO memberships.
Separatist support for this outcome is no doubt based on the fact that it is by far the best deal for Scotland. Whereas the other two would see Holyrood having to start from scratch to build their international reputation, separation could at least allow them to commandeer SOME of the UK’s credibility.
When it comes to backing their chosen horse up with evidence, they would most likely put forward the notion that the UK is in fact a treaty between nations, rather than a single country. They would no doubt contest that Scotland has always remained a legally separate entity – a view they could claim is supported by the existence of things like a separate Scottish legal system – and that an end to the Union is simply an end to an EU-style political relationship with England.
Unfortunately for them, though, there are considerably more problems than solutions to be found if going down the separation route.
For one, the interpretation of the Union I suggested above – which is the only potential argument that could really support this route – is not reflected by reality. For it to be true, the UK would need to be considered not a country but an international organisation like the EU. This is clearly not the way it has worked in practice; the UK is considered a single legal entity – or unitary state – by every other country and organisation in the world.
The domestic problem is compounded further by the Acts of Union themselves. Far from preserving the individual component nations – as the case for separation would rely on – the Acts of Union specifically state that the two Kingdoms were fused into one Kingdom of Great Britain. And while things like the distinct Scots Law system were indeed protected, this is no different in reality to, for instance, the separate legal systems within the United States. In both cases, the existence of certain separate functions does NOT mean the wider state – be it the UK or the US – is not a single country in the eyes of international law.
Outside of domestic law, another legal snag arises with the EU. Though the division of a member state is not specifically provided for within EU law, what IS clear is that a change in the number of member states CANNOT be achieved without unanimously agreed treaty changes. Since separation would require that rUK and Scotland would both AUTOMATICALLY inherit the UK’s membership – in practice increasing the number of EU member states by one – it’s arguably not a legally enforceable option.
Political difficulties would also likely ensue in a separation scenario.
NATO membership, for instance, could prove politically tricky. Though the SNP announced just recently that they now propose supporting continued membership of the alliance, their terms for doing so seem unlikely to curry favour.
It doesn’t end there, though. They also suggest that Scotland would withhold support for any NATO actions they didn’t expressly agree with. Given the nature of the alliance, it seems highly unlikely that this would be a popular position.
As well as this, other political relationships would also seem to preclude separation as an option.
Take, for instance, the UK’s recently signed defence pact with France. Do you imagine they would be happy with a separation outcome, which would force them to honour an aircraft carrier sharing agreement with a carrier-less Scotland? Or what about the intelligence-sharing agreements between the UK and US? Do you imagine Washington will be supportive of the separation route, given that Scotland would have no intelligence agencies whose information they could share?
It’s clear, then, that a considerable number of legal arguments could be put forward against Team Tearaway’s preferred option. As well as that, it’s likely that there would be huge political opposition to such a route, e.g. from NATO and other UK treaty partners.
Option 2 – Dissolution
In this second scenario, the two countries that resulted from the breakup of the UK would BOTH be considered completely new. That is, neither would be judged the successor to the current UK and both would lose all claim to treaty agreements etc. In such a situation, both new countries would need to re-establish their standing in the world, for instance by reapplying for their lost EU and/or NATO membership.
As with separation above, evidence in support for this reserve option of separatists appears to draw from the same “UK as treaty” interpretation as separation. Thus, the legal problems with this view are similar; again, over 300 years of treating the UK as a unitary state combine with the actual wording of the Acts of Union to do considerable damage to the view that the UK is an EU-style international agreement.
Another piece of legal support pointed to by separatists is the precedent of the Velvet Divorce, in which Czechoslovakia split into two new countries – the Czech Republic and Slovakia – both of which were considered new countries and neither of which inherited the legal status held by the former state.
However, the big problem with the Czechoslovakian comparison is the nature of the proposed breakup of the UK. Specifically, a Scottish departure would be a unilateral act by the people of Scotland – rUK is not getting a vote, remember – which was NOT the case in the bilaterally-agreed Velvet Divorce.
Consider the difference. When Czechoslovakia was dissolved, it was a mutual agreement; both peoples wanted the split, and so dissolution was a fair and democratic solution. However, in the British case, a split is being sought only by Scotland; it would be a unilateral decision. As a result, it’s extremely undemocratic, VERY unfair and thus arguably illegal to suggest the people of rUK should have their status changed on the basis of a decision they have no control over.
Moving on, dissolution has difficulties within EU law as well.
For instance, as separatists rightly highlight, there is no provision within EU law to arbitrarily expel members. They do make one mistake, though, in that they present this as evidence in support of THEIR argument that both rUK and Scotland would retain membership.
Where the flaw in their reasoning appears is in their suggestion that the expulsion of Scotland would be arbitrary. This is because any ejection from the EU would arguably not be imposed upon Scotland, but rather would be a voluntarily accepted consequence of supporting a breakup of the UK.
Consider the different positions. If a break up were to lead to Scotland having to leave the EU and reapply, this could be factored in to the decision of the electorate when voting in the referendum. As a result, Scots would be deciding whether or not they retained EU membership; it would NOT be arbitrary or automatic, since it would ONLY be happening if the Scots voted for it to happen.
Now consider the position of rUK. In a dissolution scenario, they would also be ejected from the EU, despite having no say on the vote that would cause it to happen. They would NOT have had the chance to choose their path and so WOULD be having their ejection arbitrarily and illegally imposed upon them.
There are again other arguments, but even these few examples highlight how problematic a dissolution approach would be. Indeed, though I am again only guessing, I would go so far as to suggest that the hugely unfair implications it would have on rUK would make it the least likely scenario in the event of a split.
Option 3 – Continuation and Secession
In this final scenario, one of the two countries created by a breakup of the UK would be considered “new”, while the other would be considered a continuation of the current UK. In effect, this would mean that one party would retain the UK’s legal standing, while the other would have to start from scratch in creating its own.
At this suggestion, separatists go on the attack; they reject this option by pointing out the United Kingdom is a union between England and Scotland. As a result, so Team Judas would likely have it, the departure of Scotland by default ends the “United Kingdom”.
However, this reasoning is again arguably flawed. First, the “United” part of the UK is NOT a union between England and Scotland, but between the Kingdom of Great Britain and Northern Ireland. A Scottish departure would thus bring an end to the Kingdom of Great Britain, not the United Kingdom of Great Britain and Northern Ireland.
Legal precedent supports a C&S approach as well. The dissolution of the USSR, for instance, saw the Russian Federation declared the continuing state based on its majority share of the population, GDP and territory of the former state. Under these criteria, rUK would qualify as the continuing state. The departure of the Irish Free State (now ROI) from the UK is another example that’s arguably even more illustrative; in that case, the UK-less-Ireland was the continuing state. Indeed, of particular concern to separatists would be that it was achieved without any of the dire domestic law consequences they would appear to be relying on to support their argument.
On the political front, organisations such as NATO and the UN are also likely to support a C&S approach. For NATO, it removes any suggestion that it might be forced to accept a recalcitrant Scotland into its ranks, while at the same time allowing rUK to retain its membership (again following democratic principle). For the UN, it avoids potentially complex arguments between rUK and Scotland and allows them to pursue the much easier route of admitting Scotland as a new member.
Even general political principle supports the C&S approach. It is clearly the fairer option for rUK – remember, they don’t get any say on this – and is thus the option countries will need to support if they want to retain the goodwill of the Westminster government. And given that rUK would still be a lot more influential, both economically and politically, than a new-start Scotland, it’s likely that a good majority of them would want to do just that.
To conclude, then, I’ll say again that there is by no means one definite legal outcome of a Scottish departure from the UK. However, this applies just as much to separatist assurances that all would be rosy as it does to unionist predictions of a rockier road. In fact, unless separatists are able to fault the logic in my observations here today, I’d go so far as to say that the unionist predictions are a good deal more likely to be accurate.
As I’ve said before, I don’t know which one would be better.
Our thanks to “phantom” for allowing us to cross-post this exhaustive analysis of a complicated situation which the SNP is pretending is cut and dried.
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Lies, Damn Lies and Nationalists Vol. 4: The European Union | Open Unionism
August 20, 2012 at 3:48 am (UTC 0) Link to this comment
[...] retain membership automatically, under the terms presently in place on the UK. As I noted in an earlier post, though, this would appear to be highly unlikely given the legal and political implications of a [...]