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Colin Mair: Scottish Independence and State Continuity: Does it Matter?

The UK Government’s Scotland Analysis series kicked off with very firm statements that the Residual UK (R.UK) would be the “continuator state” if Scotland became independent, and that Scotland would (almost certainly) have to (re)apply for membership of international organisations as a new state (UN, NATO, EU, etc.).  This was supported by an extensive legal opinion by two eminent Professors of international law.  This has been subsequently amplified in political and media discussions as creating significant, even existential, risk for a post independence Scotland. 

In fairness to Professors Crawford and Boyle, their analysis is cautious and meticulously documents the mixture of principle and pragmatism that has shaped precedent on state succession.  Where there are known “unknowns”, the absence of precedent, the “speculative” nature of analysis, or the likely dependence of outcomes on “negotiation” are noted.  The only caveat to make is that almost everything that practically matters to anyone thinking about their vote in the Referendum falls into the unprecedented, “speculative”, or “subject to negotiation” categories.  This is because the professorial muscle was quite narrowly commissioned to focus on “status in international law” and “principles”, not on the probable outcomes for Scotland. 

If it is allowed for the moment, therefore, that the R.UK will be the continuator state and an independent Scotland would have to (re)apply for membership of international organisations, the most evident question is “so what?”  What actual risk would there be that a post independence Scotland would be internationally excluded from NATO, UN, EU, etc., or would experience a substantial break in its membership of such organisations, or would have to submit to major new conditions for membership of such organisations? 

The review of “state practice” in the opinion indicates that decisions about continuity, succession and accession are as much levered by circumstances and interests as they are by abstract principle.  Both circumstances and interests would tend to point to smoothing Scotland’s path.  The circumstances of Scotland’s independence would have been created entirely by the UK Government.  As this may seem a counterfactual proposition, it is worth spelling out in more detail. 

(i)            Scotland’s constitutional position is not a devolved matter, and it is solely the UK Government that has enabled a decisive and binding referendum. 

(ii)           That the SNP won a majority of seats in the Scottish Parliament in no sense required the UK Government to enable a referendum.  The 2011 election was a multi-issue election and the psephological evidence before and after the election suggested the SNP won a majority on their record as a devolved Government, not on their independence commitments.  Although a quasi-constitutional rhetoric was put around this decision, it was a straightforward political choice by the UK Government. 

(iii)          The UK Government signed the Edinburgh Agreement on an equally voluntary basis and committed themselves to respecting the outcome of the referendum.  To get a sense of how odd this was, it is worth noting that the UK Government in essence agreed that a referendum vote in Scotland alone would be a necessary and sufficient condition for the continued existence of the current UK, or not. 

(iv)         More oddly, and as a basis for signing the agreement, the UK Government insisted that the referendum question be restricted to independence, and should not include “devo max”/”fiscal autonomy” options.  While this was no doubt aimed at enhancing the likelihood of a “no” vote, it also has the probable effect of enhancing the “yes” vote by denying voters other options for which there is substantial support. 

(v)          Finally, as the Scottish Government has no locus here, Scotland can only “leave” the UK if the UK parliament legislates to allow this to happen, i.e. the current UK arrangement would end not by Scotland arbitralily ‘leaving’, but by an act of the UK Parliament.  The commitment in the Edinburgh Agreement to an outcome that will be respected implies this if there is a yes vote. 

I have laboured the above to show that media and political narratives of Scotland “leaving” the UK are misleading in constitutional and legal terms.  This process has been led by the UK Governments choices throughout and Scotland could not “leave” the UK without the UK Parliament explicitly willing the legal means to do so. 

Under circumstances where the terms of the referendum and the resolution of the outcome were set by the sovereign UK national government, it is hard to see why international organisations would disrupt or set major new conditions on Scotland’s membership.  The period from the referendum result to an independent Scotland being initiated would allow substantial time for Scotland’s continuing membership of international organisations to be (re)negotiated. Given the UK Government role in creating the conditions for independence, it might be anticipated that they would be a supportive partner in such negotiations. 

Accepting the legal opinion on “continuator state” status, it is worth noting also its view that this circumstance is unprecedented within the EU and that any analysis of the likely treatment of an independent Scotland is “speculative”.  The comments by Prodi and Barosso on the likely treatment on a newly independent state formed by part of a pre-existing member state are just that: comments by bureaucrats.  They represent no definitive judgement by the legal and political institutions of the EU.  Given the very distinctive circumstances noted above, and the fact that Scots would continue to be UK and EU citizens for some substantial time after a “yes” vote, the EU would have a duty of care during that period. 

Any analysis of the interests of international organisations tends also to support that conclusion.  The contentious points in political and media commentary have focused on NATO and EU membership, and the legal opinion itself makes it clear that membership of other international organisations such as the UN would be unproblematic.  We focus therefore on these two. 

For NATO, Scotland has been a member through being part of the UK and hosts the major UK nuclear base.  (The SNP current policy position on being a non nuclear member of NATO is just that: the current policy position of a single party in Scotland.)  It is hard to see why NATO would wish to exclude Scotland, and equally hard to see why it would matter very much if they did.  NATO would lose contribution and capacity, and defensive support for the rest of the UK would unavoidably provide such support for Scotland as well, i.e Scotland will benefit from NATO whether it belongs to it or not.  If Scotland is willing to contribute as a member, why would NATO not want that contribution?

EU membership is the crux issue.  The UK legal opinion is right on two counts.  First, if Scotland was a successor state, not the continuator state, it would not automatically be a member of the EU.  Second, the current EU citizenship of Scots is contingent on UK membership of the EU.  It in no sense follows, however, that an independent Scotland would not have continuity in Europe or that, in the interim between a referendum and the formation of an independent Scottish state, the EU would not have a duty to protect the EU citizenship rights of Scottish people.  This is perhaps especially true given the leadership role the UK Parliament and Government would have played in the creation of the Scottish state. 

As Scotland has significant oil and gas reserves, hosts major multi-national corporations and would remain highly interpenetrated with the R.UK and European economy, it is very hard to see the practical gain to the EU, or the R.UK, in excluding Scotland or imposing disruptive conditionalities (such as Euro membership) on Scotland.  As the value of the R.UK trade with Scotland would be in excess of the value of Scotland’s trade with the R.UK, any discontinuity or disruption of terms of membership would be damaging to the R.UK.  Equally, EU citizens from other states living and working in Scotland , and businesses trading in or with Scotland , would be affected by termination or disruption of Scotland’s membership.  It is improbable therefore that either the RUK or the EU would have any practical interest in being disruptive, and the distinctive and ‘unprecedented’ circumstances of Scotland’s independence would provide cover for facilitating continuity. 

The legal opinion is right to note that any such outcome would be subject to negotiation and is to that extent hypothetical.  However, “hypothetical” is not equivalent to “fanciful”.  Those who object to the analysis above can develop a counter analysis but it would have to produce a reading of both circumstances and interests that would imply termination, discontinuity or major new conditionalities on Scotland’s membership of the EU, or other international organisations. 

It is no doubt possible to construct a scenario where a consciously obstructive approach to Scotlands membership of the EU would be adopted  “pour encourager les autres “ but, as it would be against the practical interests of all those involved, it is very hard to make it credible.  Such a scenario certainly cannot be derived from the legal opinion. It does exactly what it says on the tin: it provides analysis of “status in law” and “principles”.  It supports no judgement at all of probable outcomes in terms of Scotland’s membership of international organisations. 

None of the above constitutes an argument for independence, or against it.  It is an attempt to declutter the debate by taking off the table claims about risk based in treating a legal opinion as if it was a substantive prediction of probable outcomes.  The reading above is entirely open to challenge but those challenging will have to spell out why an alternative outcome to that suggested would be in the interests of the RUK, the EU, or other international organisations. The legal opinion is utterly irrelevant to the debate.

Colin Mair is chief executive of the Improvement Service.


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