Brandon Malone: rUK can’t claim continuing state

Would other EU states would allow rUK to inherit membership without negotiation? Picture: Getty

EU membership for Scotland after a Yes vote has been one of the most contentious issues in the referendum debate so far, and publication of the Scottish Government’s independence blueprint has thrust it back under the spotlight.

The white paper section on Europe can be seen as a direct response to a UK government paper, Scotland analysis: Devolution and the implications of Scottish independence, published earlier this year, examining, among other things, EU membership.

The coalition’s argument, based on the legal opinion annexed to the paper, is that in the event of a Yes vote, Scotland will be a new state, inheriting none of the treaty privileges and obligations of the current UK, and that accordingly Scotland will have to apply for membership of the EU and other treaty-based organisations, while the rump of the UK will continue to enjoy automatically all such privileges.

The opinion concludes: “If Scotland were to become independent… it would be with the UK’s agreement rather than by unilateral secession. In practice, its status in international law and that of the remainder of the UK (rUK) would depend on what arrangements the two governments made between themselves before and after the referendum, and on whether other states accepted their positions on such matters as continuity and succession. But there are a number of legal considerations.”

Taken as a whole, this is the one of the most sensible summaries of the reality of a Yes vote for Scotland’s constitutional position that we have seen to date. It is clear there is no exact precedent for Scottish independence, and that Scotland’s relationship with the EU and the world will depend on a series of negotiations with rUK, other states and supra-national organisations.

However, the paper goes on to consider possible outcomes in international law, concluding the most likely is that Scotland will be regarded as a new state, with rUK seen as the continuing state for all purposes, including EU membership.

The problem with this is that having correctly observed that the actual outcome will depend on negotiation, the advice then analyses the position as one where Scotland and rUK are contesting the right to continuing state status. This gives the false impression that has allowed the UK government to claim rUK will be the continuing state, and Scotland will have to apply as a new state to various international bodies, including the EU.

There is little doubt that, viewed from the outside, the UK is a unitary state. Scotland has no independent legal personality and cannot enter into treaties on its own behalf. But to leave matters there is to ignore the Scotland’s constitutional status within the UK. The paper should have focused on the relationship between Scotland and rUK – and the principles that would apply to any negotiations between them – before purporting to present their view of the implications of Scottish independence as fact.

Scotland is no rebel breakaway enclave. What is proposed is the democratic, negotiated dissolution of what is, in the grand sweep of history, a comparatively short-lived union. Is it at all credible for the Westminster government to say that, in the event of a Yes vote, rUK will inherit the UK’s treaty benefits, including in particular EU membership, and Scotland will not? Is there a difference in principle between the division of that asset, and other UK assets (and liabilities)? Should it be acceptable to anyone in Scotland, however they may intend to vote, that the UK government should hold such a view of Scotland’s position within the UK?

Moreover, the paper gives insufficient consideration to Scotland’s position in relation to the EU. Given the EU’s culture, history and politics, and the rights that EU citizens from other member states enjoy in relation to its territory (eg fishing rights) and institutions (eg student funding), it is inconceivable that Scotland would be expelled, even on an interim basis.

While formal negotiations will have to wait, it would be beneficial to have discussions now, so voters can make an informed choice in the referendum. A sensible approach, consistent with Scotland’s position within the UK, would be to agree a joint approach to the EU asking it to treat Scotland and rUK as joint successors to the UK, and to renegotiate the treaties on the basis of a division of the current benefits of EU membership.

From rUK’s point of view, it is naïve to suppose that other member states would allow rUK to inherit the current benefits of EU membership – correlating as they do to the current UK’s size and population – without negotiation. There is only one beneficiary of the uncertainty caused by the UK government’s refusal to take a clear stance on these questions, and that is the No campaign. It may suit Westminster to continue the uncertainty, but if that does lead to a No vote, that result will not settle the independence question for long.

If the referendum is to “deliver… a decisive expression of the views of people in Scotland and a result that everyone will respect” (per Electoral Commission advice), Westminster has to stop being coy. It needs to engage with the Scottish Government, the EU and other international bodies to provide clarity to voters on the consequences of a Yes vote.

Its paper raises more questions than it answers and does nothing to set out the real choice facing Scottish voters.

• Brandon Malone is a member of the Law Society of Scotland’s Constitutional Law Sub-committee. This article expresses his personal view. A version of this article first appeared in the Journal of the Law Society of Scotland.