I am surprised that Jose Barroso of the EU has said that Scotland would have to re-apply for mebership of the EU if it voted for independence but omitted what seems to me to be quite an important detail.
The detail he omitted seems to me to be that if he is right then surely the remaining part of the United Kingdom would also have to apply for membership as well?
I cannot quite see why it is assumed that if the United Kingdom split Scotland would be a new state but the remaining bit (surely, not then the United Kingdom, almost by definition) would carry on as before.
Making this assumption the EU appears to make very clear that it thinks that Scotland is not now a separate country, and yet it has some very clearly defined characteristics, such as a separate legal system that pre-existed its joining the UK that clearly indicate that it is. It also has a very obvious independent history. But the EU logic is that Scotland is simply a province and not a partner when the very name of the UK implies not.
And what I cannot quite accept is the EU logic that if the UK splits then England is the heir. This appears to me to have dubious foundation in logic that is worrying even if the Union survives and suggests that it will need to take a very different form if it does, that may actually be harder to manage.
PS I am aware a former EU judge thinks Barroso wrong.
PPS Tax diversity is what will challenge the union if it survives: unfettered internal tax competition could ruin any chance of funding viable states within a union
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I’m not aware that anyone thinks both the rump UK and Scotland would have to reapply – there is plenty of precedent of states splitting (the USSR being the most obvious) and the usual position is that the element that doesn’t leave remains party to the original state’s treaties.
The controversy is whether Scotland has to reapply. As a matter of international law it is a new state and does not remain party to previous UK treaties. The difficult question is whether the EU treaties should be interpreted differently. That is not really my area, but the debate is clearly dominated by the strong resistance to sessionist movement in other member States, and so sadly the actual legal position may end up being moot (as a three year trip to the ECJ is most unlikely to happen).
Scottish independence would be terrible news for tax competition, because the SNP has made clear they intend to compete with the UK and have a lower rate of corporation tax. The ease of migrating across the border makes this a real problem.
I agree on your last point
I think that a massive threat if w have a Union still, by the way
One has to keep basic numbers in perspective… If Scotland goes its own way, which I doubt will happen in the end, the UK loses give or take 10% of its GDP, which in order of magnitude is not so much different from the latest crisis… (I ignore the GDP/head number here, which would make no real difference depending on how the oil revenues are treated).
Therefore there clearly is a rump, which represents continuity.
As for Barosso (or Van Rompuy), well their paymasters are the EU’s 27 governments and none of them wants to promote ideas of independence. So not surprising that he sings their tune, irrespective legal considerations.
I come from a country where there is a 60/40 split between 2 groups who should have been separated quite a while ago, if it was not for the UK, Spain and even France doing all they could within the EU to prevent that to happen. If the Flanders were to be given the freedom to separate, it would give all the other candidates bad ideas. Well, now Scotland is trying to do it. It’s like floods or any other natural force. You cannot prevent groups of people to think they can make it independently when the external threats are removed.
In a 60/40 split, ignoring the issue of Brussels, the issue of the surviving state is far more complex.
And in Belgium the issues are far starker than here. One has a prosperous North, with unemployment down to 3% in some parts and a “politically antiquated South”, stuck in another century. The 2 regions have nothing in common anymore, save the national debt and the social security that generates massive transfers from one region to the other.
So yes, the UK (minus Scotland) is the surviving entity, and a member of the EU, if Nigel F doesn’t get his way!
“Scottish independence would be terrible news for tax competition, because the SNP has made clear they intend to compete with the UK and have a lower rate of corporation tax.”
Might be interesting when the SNP are in power and have to start paying for everything and the remainder of the UK decides to cut taxes further…..
…plus of course if Scotland goes ‘foreign’ it can kiss goodbye to any future BAE Systems work.
“if the UK splits then England is the heir”
Wales? Northern Ireland? They are also in the Union, remember.
I agree, entirely
But if Scotland is treated this way so are they, but only worse
The real statement most likely is that Catalonia will have to reapply. That is the independence referendum they are really worried about.
As for Scotland certain figures have some very strange views about what independence means. They seem to believe that Scotland will have no share of UK assets but a full share of the debt. It was reported on Friday that sources close to Cameron were saying that a Yes vote would be ignored if the Scottish Government did not accept this.
Really? Scotland can have a share of UK assets….I doubt though that they’d be able to afford to keep ’em running….
http://thinpinstripedline.blogspot.co.uk/2013/11/assessment-on-proposals-for-scottish.html
….which is why I think for all the talk of independence, the actual ‘nuts and bolts’ of any separation agreement will take years to sort out.
This comment has posted further to point 5 of the comments policy to which attention is drawn.
I’ll bet the Welsh and Irish are delighted that you consider them to be irrelevant to the Union. I suspect the EU logic is that the remaining 3 elements of the Kingdom still constitute a Kingdom and Scotland has merely left it. Doubtless parallels are already being mentally drawn for the equivalent situations re Spain/Catalunya atc.
I don’t consider them irrelevant
I think they should be angry they are treated the same way as Scotland – mere provinces
The problem is practical, not legal. The EU is already unwieldy. The last thing they want is more members, particularly small ones. And of course, Scotland has to be treated the same as Catalonia. And as Spain will do anything to prevent an independent Catalonia, that means Scotland needs to be harshly treated.
As with most things, realpolitik trumps the law.
The funny thing is that we in the UK regard it as uncontroversial that if the Scots vote for independence they should have it. This is very much not the case in Belgium, French, Italy or Spain with respect to their secessionist movements.
Anyone know why this is?
Because the Scots are not a secessionist movement
Scotland is a country already
Since when did the regions of those other states, for example, play in their own right in international sporting competitions?
Scotland is only a country in identity, not in law. It doesn’t have anything close to the rights and power than any independent country has. They aren’t really the same thing.
In fact, the Channel Islands governments have more autonomy and legal power over their jurisdictions than the Scottish government does over Scotland. But you wouldn’t call the Channel Islands countries.
I think you confuse the realpolitik of this
The CI are not countries and never have been
Scotland has been and is in Union – albeit a long union – by choice and yet does retain many characteristics of an independent state e.g its own law
We should remember that Italy -a unified Italy only dates from 1870, a single Germany likewise. There are centuries of separate identities for regions.
Ciaran,
This is a very good point.
As I said somewhere else, for a long time, the nation states of Europe have had all interest for these splits not to happen. Hence my own country, Belgium, where it should have been separated for a long time, was seen as a risk factor by all nation states (Spain, France, Italy and the UK).
Your question as to why in the UK, is partially due to what Richard describes as the history, i.e. United Kingdon of nations, as opposed to the more artificial recent constructs of Germany and Italy.
BUT, I also think that the UK is the most democratic of all these countries. If that is what the Scots want, give the credit to Westminster to give them their chance, albeit without the Pound. You have to give Westminster their right to defend themselves, after having given their consent to a referendum. And Cameron and Co. are using all their friends to defend the Unity.
One may or may not like the intervention of Barosso, but hey, I am not sure Salmond is always totally straight either…
What is rarely addressed, is that in some parts of Europe, from Catalonia to the Flanders, there is a concept of the Europe of the regions. One may indeed wonder why one needs national governments between the regions of Europe and Brussels/Strasbourg. Take Richard Murphy for example, he probably has as much influence (if one takes what he says fro fact) in Brussels as in London. Let the Scots decide how they want to tax themselves, the English be who they want to be and my Flanders become a region of Europe. I can see taxes there drop massively once they loose the South… I may move back!
Cant the rest of the UK give the Scots our membership. Then the UK reapply their own terms for EU membership if needed.
I suspect (but I’m not a constitutional lawyer) that the point at issue is that Scotland would be leaving the UK. For it to be a ‘split’ creating two new countries, both Scotland AND the rest of the UK would both have to vote yo end the union. It’s not about how Scotland is ‘treated’ it’s about what the referendum decides.
Richard,
When the Soviet Union split up, the new Russian Federation did not have to reapply for membership of the UN etc. Russia took on the legal identity of the former USSR, whereas it was the seceding countries that had to reapply. Russia took on all the treaty obligations of the USSR.
If Scotland leaves the UK, the UK as a legal entity will continue, just without Scotland constituting a part of it’s legal territory. Therefore all treaties that have a signature on from the UK government will still apply, because the UK still exists.
That being said, the UK will be less influential and any treaties that have a clause allowing for their amendment may well be exploited by other parties (e.g. the EU rebate may be reduced).
There may be different legal opinions on this (put two lawyers in a room and you’ll end up with three opinions), but from my understanding of EU law (I have a law degree) it seems pretty clear cut to me.
I agree there are precedents
But are they binding?
I am not convinced
Nor do I think this a mere legal issue
Imagine if a part of England, say Cornwall, wanted to become independent yet stay in the UK. I am sure that there would be a seamless transition and that the Cornish would remain British citizens.
The same principle must applie to the Scots being EU citezens.
In fact there is a real precedent for this when Northern Ireland “seceded” from Irealand in 1922 yet remained fully part of the UK. There was no reapplication bull or talk of NI being vetoed by Wales etc.
How can you be independent of, but stay in the UK? The same issues regarding currency union etc surely apply.
When Greenland left Denmark then Denmark stayed in the EU and Greenland did not. There is indeed precedent.
But I agree with the above: it’s all going to be realpolitik about Flanders and Wallonia, Catalonia etc (and possibly even Padania and others). None of the nation states want such regions to think they can just swan off to independence and stay in the EU. Therefore the system will make sure they cannot and if Scotland’s in the firing line then so be it from their point of view.
It is a shame that all the components of the UK aren’t having votes on whether they want to remain in the UK. However, there is no doubt that if they did vote next September, they would all vote in favour of remaining as part of the UK. Scotland is having a vote and there is the possibility that they will vote for independence, i.e. to leave the UK. The rest of us, England Wales & Northern Ireland haven’t decided anything and we will remain as we were as parts of the UK.
The Scots have every right to decide their future for themselves. What they don’t have the right to do is decide what country the rest of us live in.
It’s far from a foregone conclusion that the English would vote to stay in the UK, there would be huge support for casting the other members aside.. even more so if England leaving the EU were a side effect (there’s a reason why a referendum on UK membership is unwanted by EU supporters, and I’d say England alone is more Eurosceptical than the UK combined.)
As in Scotland, an English vote on UK membership would boil down to a narrow financial decision, and the perception that the other members take more than they give would be hard to rebut. The Scots, after all, seem likely to reject that premise.. at least emphatically enough to trump the political factors that make independence attractive (no more Tory rule, etc).
As for the post topic.. it’s very simple. The UK is an EU member, and that doesn’t change by Scotland leaving. If there were any legal reason to doubt that then we’d have heard about it before now. I don’t think Richard has stumbled upon something that all the people who actually understand constitutional and EU law have missed.
I did not claim for a moment that I had developed a new legal insight
I was asking a deliberately perverse question from a contrarian viewpoint. Sometimes they are worth considering. That’s why I put them forward sometimes
And what the law says is in some cases perverse. Surely we should acknowledge that?
I am not sure that Greenland is a precedent for a formerly autonomous country breaking away from a union. Not that I am an expert.
Neither is Kosovo, which was specifically mentioned by Barroso. His lack of caution in citing that case suggests that Richard is right: realpolitic overrules law.
Good debate. There may be a mild confusion though between international law and the operation of the EU. In international law – insofar as it exists because it’s mostly precedent, I’d say – London would be recognised as capital of the continuing state because it is the larger part of the territory splitting. Unless of course the world community concurs with the SNP that the Union was a joint project to create a new state and if one leaves, the legal entity of the common state, UK, is dissolved.
But the EU only loosely applies international law theories. It is a political bloc making its own rules to suit each situation. There is already evidence in Brussels to show BOTH Scotland and the rUK would be treated equally in the event of a Yes vote and both would have to go through a process of re-entry as for rUK number of MEPs, votes in Council and contributions change through loss of population. If that is so, it makes it difficult to believe that Scotland (or rUK) would be thrown out and forced to re-apply. There would be administrative chaos, legal claims, objections to losing EU citizenship and, of course, England might not WANT to go back in. This has the smell of a tricky morsel requiring a Eurocrat’s delicate expertise to solve while complying with the spirit of the treaties.
I think your logic is quite close to mine
Surely the only logical conclusion that can be drawn from the examples above, is that international law is extremely flexible and tends to be rather pragmatic. Scotland’s position post-independence will be worked out in the best interests of all concerned.
As an aside, a worrying thing for England’s people, however, is that their best interests are unlikely to be the same as England’s owners. I also wonder what opportunities Scotland’s independence might present to a Europe fed up with England’s destructive/obstructive membership of the EU; perhaps Westminster’s vitriol against Scottish self-determination reflects the fear that England’s place in the world is far less assured than they would claim.
There is an issue of England’s place in the world. From commanding an empire on which a national story was told and a myth created of domination, power and superiority, it has seen it depart bit by bit until the core is now disintegrating. The Scots rode shotgun on the Empire journey but have now grasped the reality of their place as a small nation. England’s elite has failed to do this so far. That’s what Trident and Special Relationships are about. We all need a reality check. A federal UK in Europe with modest ambitions to be a good neighbour and stop sell ing weapons to everyone might be attainable but the Cameron Miliband cohort is in denial. London’s response to Scotland has already turned nasty and is based on a Master-servant mentality. They can’t help themselves and yet this is exactly what will push Scots into going.
I wish people would simply accept correct use of nomenclature.
The United Kingdom, UK, is so called because it shares the same monarch. It existed between 1603 and 1707 without any union of the Parliaments. The union of Parliaments was agreed by an international treaty between two sovereign countries. If one of those countries wishes, by democratic vote, to end the union then the two states revert to their original condition. For the larger state to claim all the assets built up during the union is simply illogical, arrogant and unacceptable.
As an English born individual living in Scotland for the last 40 odd years I am ashamed at the level of ignorance displayed by the opionated rants on this thread.
I agree with your position
“For the larger state to claim all the assets built up during the union is simply illogical, arrogant and unacceptable.”
Totally agree but on the other hand the Scots don’t seem to be that keen on sharing the debt either. They can’t have it both ways.
The reluctance is based on a refusal to share the currency.
That makes sense
You maybe interested to know that Downing Street is briefing journalists that unless the Scots agree to share the debt – without access to the currency – they will grab the North Sea oil, refuse to release a percentage of shared assets and will erect a border again. This of course is bluff to frighten people but it shows how they have mishandled the currency issue and have been caught out by the No Debt response. If they keep this up they will precipitate an equally unreasonable reaction. It makes me wonder why they are so intent on retaining Scotland if it’s contribution isn’t vital to UK national interest.
“refuse to release a percentage of shared assets and will erect a border again.”
If Scotland dos join the EU, it will have to agree to join the Schengen Area – because if Scotland chooses not to do so, it will give even more ammunition to Spain et al. as to why Scotland should not be allowed to join the EU….
….thus if Scotland does join the EU, it will need to police it’s border with the rest of the United Kingdom – and that won’t be cheap.
As I’ve said before, for all the shouting and downing of the whiskey in Edinburgh should Scotland ‘go indie’, the actual ‘nuts ‘n’ bolts’ of how an independent Scotland and the rest of the UK will relate to each other will take years to deal with…
….and even then, I’m not that sure that Scotland will be that ‘independent of the UK’…..
I wish folk would get their heads around the fact that Scotland is in the EU now and that there is no mechanism for removing EU citizenship from 5,000,000+ Scots. Most experts on EU law confirm the need to renegotiate the specifics of our relationship with the EU, but not the fact of our continuing membership. Barroso, you may have noticed, is already back-tracking, as his attempt to use Kosovo’s situation has no validity whatsoever.
And as far as Spain is concerned, their Prime Minister stated quite clearly a couple of weeks ago that they have no problem with an independent Scotland.
As for Schengen even the No campaign’s newly appointed adviser, Professor Jim Gallagher, acknowledged that an “accelerated” membership negotiations would be likely and that “immediate requirements to join the Euro or the Schengen agreement can surely be avoided”.
And what has the “downing of whiskey (sic)” have to do with anything?
“I wish folk would get their heads around the fact that Scotland is in the EU now…”
Respectfully Scotland is not in the EU – the United Kingdom is the country in the European Union. I do agree though that it might be better in practice if the current border arrangements between Scotland and the rest of the UK remain in place…..
…but there is no guarantee that Scotland would be allowed to join the EU – if only because of the wishes of other countries.
As to the drowning of the booze – I was trying to use a shorthand to state that the celebrations at ‘indie’ are the easy bit and for all the partying with booze, bagpipes and fireworks, the real work would start the morning after when a whole raft of issues would have to be addressed.
Not that there would be no solution – practical necessity will drive solutions but I suggest that if the Scots shout too hard or demand too much, they might find a very nationalist govt. would be voted in by the majority of English voters and that would put a total different complexion on HMG given that Scottish MPs would no longer be allowed in the HoC……
…and that means the Labour would take a right kicking…..
…as Labour would be the Opposition in Scotland whilst the other ‘UK Branches’ of Labour would have to make a decision as to whether to support English national demands and give the Scots a bit of a kicking….
….or stay quiet and be accused of favouring a foreign country – Scotland – over the interests of the rest of the United Kingdom.
Meanwhile from a Conservative point of view, I can imagine they’d be happy to get rid of the ‘dead weight’ of the Scottish Labour ‘block’ from electoral calculations in the rest of the UK.
Scotland is a country.
It is presently one of four countries which form the UK.
EU law is incorporated into Scottish Law, the law of country of Scotland.
Residents of Scotland are EU citizens.
EU citizenship cannot be withdrawn.
All experts, including those in UK government and NO Campaign, expect an accelerated ratification of Scotland’s EU member ship.
The country most often quoted as having a potential objection to Scotland’s membership, Spain, has said that it doesn’t.
Scotland expects England to negotiate in its national interest, as we will in ours.
The UK already has a vehemently nationalist government and Labour is a fully paid up member of the British Nationalist Westminster consensus.
Negotiations between sovereign states are subject to international law, this includes the division of assets and resources..
The “Scottish Labour ‘block'” makes no electoral difference to the outcome of UK elections.
The “booze, bagpipes and fireworks” is stereotyping, unnecessary and a wee bit offensive, although we’re well used to it.
The UK already has a nationalist government? Really….all the three main parties ate committed to remaining as part of the EU. Hardly a nationalist policy.
I was trying to make the point that for all the talk of EU law being in favour of Scotland joining the EU…the matter won’t be decided on legal grounds alone. I know it’s only anecdote but I know of Scottish fisherman who fully expect independence from England to give Scotland full and sole control of its fishing grounds like Iceland…..that is a position that is utterly incompatible with any nation wanting to join the EU thus assorted deals will have to be made by all and sundry.
Likewise, for other matters – the other nations of the EU will make or unmake EU law to suit their own interests – rather like the rest of the UK may decide to compete very aggressively with Scotland in matters of taxation and company law – a point made by Mr. M. in other posts.
In terms of the partying comment – that was simply a statement of the fact that after the celebrations on the night of the vote result, then the hard work will begin and I’m not certain either the Scottish government nor the government representing the rest of the UK will be able to deliver to their own supporters what they’ve all said they can.
Jumping from one strawman to the next, doesn’t make your arguments any more coherent I’m afraid.
As for Westminster nationalism, the UK’s centuries of war-making, fetishisation of Britishness, obstreperous and obstructive membership of the EU, rejection of Schengen and aggressively anti-immigrant policies don’t exactly turn it into a paean of internationalism. And I suspect that if you were on the receiving end of the chauvinistic, hostile British nationalism (which you so helpfully demonstrate above with your “give Scotland a kicking” phraseology) and to which we are daily subjected, you might feel a little differently.
On you last point, have you even read “Scotland’s Future”?
Finally, I do you the courtesy of replying to your points but the answers appear not to suit your preconceptions, so let’s call it a day shall we. I’m sure you’ll be happier talking to yourself.
Thanks for your original post Richard, and for your patience in moderating this stuff.
Robbie
You’re welcome
Thanks for trying
Richard
“Finally, I do you the courtesy of replying to your points but the answers appear not to suit your preconceptions, so let’s call it a day shall we. I’m sure you’ll be happier talking to yourself.”
Respectfully, RP – your description about the UK hardly seems to be based on rational facts – just your perception, thus I I might also say, “I’m sure you’ll be happier talking to yourself.” Incidentally, Scots helped to build and run the Empire – I hardly think they were forced to do it by London and of course when the UK last voted, it was on membership of the EEC….not did the subjects of the UK wish to join an all encompassing political union.
As to do the document Scotlands Future – I’ve actually read it but like all and any type of political paper – respectfully – I’d argue it is full of supposition that amount to “well, we think… ‘x’ because our experts have given us opinion ‘y'”
I stress, Mr. M., that I think the issues that involve an independent Scotland and the UK and the EU will not be settled purely on legal grounds – rather like items to do with taxation – those decisions are as politcal as they are legal.
Something you have pointed out Mr. M when it comes to how HMG choses to enforce tax law and how HMG allocates resources to HMRC.
If you will allow Mr. M., I too will respectfully draw ths debate to a close as well as clearly there are little grounds for agreement.