Scotland, independence and the EU: the Barroso intervention

Aidan O’Neill QC

The President of the European Commission, José Manuel Barroso, has responded to an invitation from the House of Lords Economic Affairs Committee for the European Commission to contribute to the committee’s inquiry into “The Economic Implications for the United Kingdom of Scottish Independence”.    Surprisingly perhaps, his response does not, however, deal with any economic issues should the 1707 Treaty of Union be dissolved and Scotland become an independent State, but rather with legal ones. Mr. Barroso’s first degree is in law, and he undertook postgraduate studies in economics and in international relations. It is to be expected that his views will be legally informed and clearly reasoned. The relevant paragraphs of his letter to the House of Lords on the issue states as follows:

(1)  “The EU is founded on the Treaties which apply only to the Member States who have agreed and ratified them.

(2)  If part of the territory of a Member State would cease to be part of that state because it were to become a new independent state, the Treaties would no longer apply to that territory.

(3)  In other words, a new independent state would, by the fact of its independence, become a third country with respect to the EU and the Treaties would no longer apply on its territory.

(4)  Under Article 49 of the Treaty on European Union, any European state which respects the principles set out in Article 2 of the Treaty on European Union may apply to become a member of the EU.

(5)  If the application is accepted by the Council acting unanimously, an agreement is then negotiated between the applicant state and the Member States on the conditions of admission and the adjustments to the Treaties which such admission entails.

(6)  This agreement is subject to ratification by all Member States and the applicant state.”

While propositions (1), (4), (5), and (6) are undoubtedly correct, the claims made in statements (2) and (3) are perhaps more complex than Mr. Barroso’s brief account would indicate.

The EU Treaties have been concluded for an unlimited period – see Article 53 of the Treaty on the European Union (“TEU”). Indeed, until the insertion of a new Article 50 TEU by the 2007 Lisbon Treaty, the Treaties contained no provisions for the secession or unilateral withdrawal of a Member State from the EU. 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.

The only precedent for part of the territory of a Member State leaving the EU is the case of Greenland which in 1985, left the EU after negotiation and agreement among all the Member States resulting in a formal amendment of the Treaty. So, such precedents as exist would indicate that an existing territory within the European Union has to be negotiated out of the EU, rather than for there to be any immediate automatic cessation of the applicability of EU law within that territory on its secession from a Member State.

Further, Article 52(1) TEU specifies that the Treaty applies to “the United Kingdom of Great Britain and Northern Ireland”. There is a respectable legal argument to be made that – given that Article 1 of the 1707 Articles of Union provides “that the two Kingdoms of Scotland and England shall upon the first day of May next ensuing the date hereof, and for ever after, be united into One Kingdom by the Name of Great Britain” – the revocation of the British Union would mean not only independence for Scotland but also the dissolution of the United Kingdom of Great Britain and Northern Ireland. If Barroso’s automaticity argument has any purchase, then it could be said that from a matter of a strict literalist reading of the Treaties – against the background of the constitutional history of the formation of the UK – a disunited Kingdom without Scotland would no longer be the Member State which originally signed up to the European Union and therefore the dissolution of the UK into separate States would result in none of the territory of the former United Kingdom remaining within the EU.

Normally in international relations, politics trumps law.  Not so in the European Union however where the Court of Justice of the European Union has long made it clear that it alone (and not the Commission or the Member States) is the fundamental guardian and interpreter of the European Treaties. And the issue of whether an independent Scotland or the continuing UK remain members of the EU or have to reapply for membership affects not just states but individuals not least because, by virtue of Article 9 TEU, every national of a Member State is also an EU citizen. The Grand Chamber CJEU decision in Rottmann v Bavaria shows that decisions concerning the continuing national status of Member State nationals fall within the ambit of EU law and the supervisory jurisdiction of the CJEU precisely because changes in individuals’ national status may impact upon their acquired EU law rights qua EU citizens. Again, if the Barroso thesis is correct we may then be left with the paradoxical consequence that an independent Scotland would not be entitled to be accepted as a Member State of the EU, but all its (formerly British) nationals would continue to be EU citizens able to enjoy the protections and privileges conferred by EU law while their independent Government incurred none of the responsibilities. That might turn out to be for Scots – in the words of Candide – “the best of all possible worlds” but it is not perhaps a result which, for example, Spanish fishermen suddenly deprived of access to the newly exclusive territorial fishing grounds of an independent Scotland outside the EU would relish.

But if the better thesis is that an independent Scotland would have to negotiate its way either in or out of the European Union, then it may be that any referendum on Scottish independence should indeed contain a second question to guide its Government on this point: do you want an independent Scotland to be in, or out, of the EU ?

17 thoughts on “Scotland, independence and the EU: the Barroso intervention

  1. Thank you for learned confirmation of my own reading of the situation. The stark nature of either a ‘successor’ or ‘third country’ definition in European law and by implication and effect on International law, will be Scotland’s obligations to a successor states debt. All previous British ‘secession’ has resulted in Ireland, Canada, New Zealand, Australia, India, etc. etc. leaving with no responsibility for ‘British’ (UK) national debt. Not something that I would promote, but in the circumstance of an expulsion of EU citizenship, forced re invention of current international treaties and the basic intergovernmental agreements on northern european human rights, I would demand as simple compensation. Am I being too reasonable? Could the EU or the rUK have ever formed with this absolutist rhetoric being espoused by the current encumbents.

  2. Very interesting take, but in terms of legal/historical nomenclature, the “United Kingdom” was not created by the the Acts of Union in 1707. These Acts did unite the kingdoms of England and Scotland, but the new entity was actually called the “Kingdom of Great Britain”.

    It was not until the Acts of Union of 1800 uniting the “Kingdom of Great Britain” and the “Kingdom of Ireland” did the “United Kingdom” (of Great Britain and Ireland) come into existence.

    This means the “United Kingdom” would logically remain extant if Scotland left the Union (although Great Britain as a political entity would not) resulting in something like the “United Kingdom of England, Wales and Northern Ireland”.

    In contrast, if Northern Ireland left the Union (as the rest of Ireland did in 1921) instead of Scotland, then at least in historical terms, the United Kingdom would cease to exist. We would be back at the pre-1801 status of the Kingdom of Great Britain.

    • Can you clarify this for me, and apologies if this is “basic” stuff. But …

      If the Act(s) of Union passed by the respective Parliaments of England (including Wales) and Scotland formed “Great Britain”, and later it was Great Britain that formed the “UK” with Ireland, would it not be the case that should the Acts of Union be repealed, then “Great Britain” would no longer exist (legally) and so the later “UK” act would also fall, as one of the co-parties no longer exists?

      Thanks in advance.


    • I take issue with “sabremesh” in that the “United Kingdom” has continued as a constitutional anomlay since 1922, following the creation of the ‘Irish Free State’ and ‘Northern Ireland’ from the (former) ‘Kingdom of Ireland’. As the ‘Kingdom of Ireland’ was dissolved in 1922, the ‘United Kingdom(s) of Great Britain & Ireland’ simultaneously ceased to exist. Given that ‘Northern Ireland’ was not a ‘kingdom’ in its own right, the title of the remainder should at that time have reverted to the ‘Kingdom of Great Britain & Northern Ireland’, there being no additional ‘kingdom’ with which that of ‘Great Britain’ could be termed “united”.

      Therefore had such been the name of the state post-1922, it would follow that should Scotland revert to being an independent sovereign state, (in the form of the ‘Kingdom of Scotland’), the remainder would then be correctly styled the ‘Kingdom of England & Northern Ireland’. (Wales having been legally incorporated into the ‘Kingdom of England’ by Henry VIII, under the dual Laws in Wales Acts of 1535 and ’42).

      Instead, the the Royal and Parliamentary Titles Act (1927) retained the style “United” in the form of the “United Kingdom of Great Britain & Northern Ireland”. Another anomaly was the retention of the Union Flag showing the counterchanged Cross (Saltire) of Saint Patrick, this having been incorporated into the design in 1801 to represent the (former) Kingdom of Ireland.

      Therefore the “United Kingdom of Great Britain & Northern Ireland” could yet be the style retained by the remainder in the event of Scottish independence, Westminster having already demonstrated in 1927 its ability to adopt forms of title, style and symbols of state which defy logic and pay no heed to constitutional accuracy.

  3. Barroso probably has very little knowledge of the Treaty of Union and Act of Union between Scotland and England. That aside, there are, I’m sure, many members of the EU who would welcome a reduction in UK power and are probably secretly wishing Scotland to be come independent. One thing is certain – the EU will not let resource-rich Scotland go – we will be accommodated. As for the Spanish, it’s not just fishing grounds around Scotland they will be mindful of, but the renewables industry too – Europe’s largest onshore windfarm is run by a Spanish company.

  4. Sabremesh

    If as you claim the United Kingdom is the sum product of the union between the “Kingdom of Great Britain & the Kingdom of Ireland” then we would now ONLY be Great Britain & NI by virtue of the fact that most of Ireland is now an Independent Republic and NI is a province and not a kingdom! The fact that the UK is mentioned at least 3 times in the Act of Union 1707 in relation to the unity of kingdoms & England/Wales proves the UKis a sum product of this union and no other! In other words the Kingdom of Ireland got into a union with the already existing United Kingdom of Great Britain. Therefore as the article above says when this union of Kingdoms ceases the very existance of the UK ceases with it! Leavaing only its constitutent parts the Fully restored Parliament of Scotland and the original English Welsh Parliament of Westminster with the Great Seal of England replacing the Great Seal of the UK in Westminster and the Great Seal of Scotland replacing it in the Scottish Parliament!

    • Paul:

      I think you should look at the orthography of the time before drawing conclusions. The words “United” and Kingdom” are indeed capitalised in several parts of the two acts as are many other words. The cistom at the time was to use capitals both for decoration and for emphasis on important words. Conclusions should not be drawn on the meaning of capitalised words and phrases in 18th Century documents by the application of the rules of 21st century orthography.

      • George

        Either orthography of capital emphisis or not would not detract away from the fact that reference to the Kingdoms in Unity appeared and applied before the Act of Union 1801 and the fact that we are still Kingdoms in Unity in spite of the “KINGDOM of Ireland no longer existing proving the reference parameters of the term United Kingdom applies to the Act of Union 1707!
        This means the United Kingdom is NOTHING BUT the Parliamentary Union between the Kingdom of Scotland and the Kingdom of England / Wales and is NOT a Sovereign state in its own right but a Union of Sovereign states allowing the United Kingdom Sovereign “Authority” by virtue of the SOVEREIGN AUTHORITY of the nation states within it! Destroying all credibility the No campaign has in their claims regarding Scotland within the EU within NATO within the UN ownership of the pound and BoE embassies the armed forces etc etc etc.

      • Paul:
        Whilst I agree with your sentiment, the crucial point is that it is the United Kingdom of Great Britain and Northern Ireland that is the signatory to the EU treates to which Mr Barroso refers. On the dissolution of the union between Scotland and England the Kingdom of Great Britain ceases to exist and could not be any longer, considered a valid signatory to any international treaty of any kind. The consequences of this would be mind-boggling. However, if both Scotland and the rUK were considered successor states this difficulty would be removed. The EU is, if anything, a political animal. I cannot see it taking a position which would result in the wiping out of 300 years of international treaties involving the UK! I am no international lawyer. It would be interesting to hear the writer’s opinion on this matter.

  5. There could be a legal argument regarding the fact that Scotland is not seeking national Independence at all! Scotland is already a fully recognised country state in its own right and what it is seeking is the full restoration of its own Parliament from the present union of equal Parliaments its in now! It has already restored part of its Parliament and is now in fact being “governed” from Hollyrood by its own “government” be it devolved and subject to the Scotland act! The criteria which determines what is and what isn’t an Independent country appears to blur in the present case of Scotland within the context of the UK as indeed does England’s position. In fact to claim that the UK could exist without Scotland is to claim that the UK is nothing but England on its own! A Kingdom in unity with itself! Unionists need to make up their minds either Scotland is not Independent of the UK allowing a UK to exist without it or it is already Independent of the UK and therefore an existing member of the EU and wont be a newly Independent state when it reforms its own Parliament!

  6. Not sure if I am missing something here, but isn’t the unspoken point something that is not catered for by a 2nd referendum question asking “In/Out of EU”? Scotland would obviously qualify to join and the EU would welcome any new member but would not try to force anyone to join. So surely the point is what terms Scotland would join on, which is much tougher to put into a referendum. The UK’s terms are a 1-off (not just being outside the euro, but all the derogations), no doubt now seen by most Member States as a never-to-be repeated mistake. Not much less than half the current MSs joined on the basis that they were told in no uncertain terms that the full acquis was to be swallowed, take it or leave it. They would take some persuading that Scotland should be given terms any different from theirs, and particularly that it should be allowed to have the benefit of what they would see as a troublesome historical freak in the terms the UK managed to obtain. Can the referendum really say “please tick 1 exit EU, 2 join only on current UK terms or similar, 3 join on any terms that can be negotiated”, and allow for your view on leaving the UK to be dependent on the result of the EU negotiations.

  7. As Aidan O’Neill makes clear, it is the CJEU which has jurisdiction on these matters and not the Commission. Commission President Barosso’s motivation for delivering this rather tendentious juristic opinion beyond his area of competence can only be speculated on.

    One can turn the matter on its head and thank President Barosso for confirming that Scotland would not be bound by any existing EU treaty obligations after independence. This would greatly improve Scotland’s negotiating position, either inside or outside the EU.

    It would mean for instance that access to Scotland’s fishing grounds which were negotiated away by Westminster decades ago revert to Scotland without negotiation.

  8. Its pretty clear that Barroso is playing politics here, closing ranks with the the existing UK government. Didn’t one of the EU’s senior law officers not express precisely the opposite view only a couple of weeks ago? Cameron has probably had a word in his ear, panicking about the political ramifications of Scottish independence. He knows that the English economy is in no state to handle the economic hit England will suffer if Scotland votes yes. Just think of all that lovely public infrastructure that wont be developed in the south east when Scotland’s tax surplus disappears. Funny that the head of the EU would choose to side with the “good old” British Empire, given that it was financial regulators supposedly working in the City of London, that allowed Barckleys to destroy much of the mainland’s banking sector with toxic derivatives.

  9. Thank you for such an entertaining article. I would point out that the Treaty of Union specifically precludes enacting any legislation which contravenes the treaty. Any act which sought to end the treaty would be in violation of Article 1. When looking at a contract or treaty, any court will examine the wording to get a feel for the intentions of the signatories. In this case it would be abundantly clear that the intention was to create a permanent nation which could not be dissolved by either party. Scotland’s only course of action is secession.

    The Greenland comparison, I am sure, was made with tongue firmly in cheek. The negotiations and subsequent amendment were a failed attempt by Denmark to negotiate exemptions for Greenland with respect to fisheries and sealing. In any event, Greenland did not secede and that is the crucial difference. Scotland’s position is more closely related to that of Algeria where the scenario described by Barroso actually occurred.

    • Secession from what? the treaty of union also makes it clear that the UK is the sum of its parts so secession is not an option at all! You cannot claim that the UK made from this treaty of Parliamentary union with Scotland included could possibly be the same UK with Scotland excluded with no Parliamentary union at all! I believe youre being very very loose with the law and trying to squeeze an apple through the eye of a needle.
      There is no treaty which obligates anybody for eternity! That is the only comparrison you can take with tounge in cheek! Marriage vows are taken on the grounds that they will be for life and in Holy communion with God at that! So please dont try to insult peoples intelligence by spinning legal supposition based on the ridiculous.

      • I know a number of people share your desire to believe the UK will be torn asunder, but if wishes were horses then beggars would ride. The very simple fact of the matter is that, should Scotland secede, the UK will carry on. It is pure Scottish vanity to think otherwise. Sadly, we will most likely never know the legal outcome. A ‘No’ victory is all but assured. The only question right now is the size of the ‘Yes’ side’s loss. Unless the SNP can get on track and provide more than an appeal to emotion the ‘No’ will take 81% of the vote. Such a result would be disastrous.

      • “Should Scotland secede” The point is they arent seceding from the UK because its impossible for them to do so due to the constitutional set up of the treaty by Parliamentary union!
        The vanity is in believing or pretending to believe that the UK is England and England is the UK.
        And if a No vote is assured why are the Unionists running with scare mongering stories telling us that companies and corportations are getting ready to pull out of Scotland in the event of a yes vote? If this were true then these corporations and companies dont believe its assured at all do they? And Independence doesnt have to be proven or explained its the preferred agenda of choice across the would including in Westminster itself! Its devolution which needs to be explained and proven. Who in the world has expressed a preference for devolution over their full Independence and what are the advantages in doing so? Perhaps you can explain them?

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