INIS Free ?

Aidan O’Neill

In his poem The Second Coming written in 1919 at a time of political and social ferment across Europe and an earlier constitutional breakdown within the United Kingdom, WB Yeats (that great Anglo-Irishman, a descendant and representative of “no petty people”) wrote the following lines:

… Things fall apart; the centre cannot hold;

Mere anarchy is loosed upon the world,

The blood-dimmed tide is loosed, and everywhere

The ceremony of innocence is drowned;

The best lack all conviction, while the worst

Are full of passionate intensity.

Surely some revelation is at hand ….

Against that apocalyptic vision, it is of some interest to note a recent op-ed piece in the Irish Times, in which the Irish writer Fintan O’Toole has made the intriguing suggestion that one possible political response to the further break-down of our constitutional order which the Brexit vote heralds, might be for a complete re-configuration of the nations within the Anglo Celtic Archipelago/Atlantic Isles.  He suggests that Scotland and Northern Ireland might leave (and so dissolve) the United Kingdom, and join Ireland in some form of, a yet to be worked out, union.

Historic precedent for a Scots-Irish union ?

It is sometimes said to be a characteristic of the Scots and Irish that (like the Bourbons) that they have learned nothing and forgotten nothing.   Their role in a Tolkien saga might be that of “The Grudge Bearers”.

In that spirit, and taking the approach of la longue durée to Fintan O’Toole’s suggestion, we might find some historic precedent for setting up a Scottish-Irish Union (sans et contre l’Angleterre) in the campaign of Edward Bruce, younger brother of and then heir to Robert Bruce, who in the year after his brother’s 1314 victory at Bannockburn, sailed to Ireland from Scotland with a sizeable fighting force and there allied with native Irish fighting against Anglo-Norman magnates owing fealty to the English crown, and had himself proclaimed High King of Ireland.

This is attested to in a remarkable document of 1317 which the native Irish princes (led by Donal O’Neill, king of Cenel Eoghain or Tyrone) addressed to the Avignon Pope John XXII through two of his papal nuncios who were then in England attempting to broker a post-Bannockburn peace between Edward II of England and Robert Bruce, King of Scots.   This Remonstrance notes in part as follows:

“[O]n account of the injustice of the kings of England and their wicked ministers and the constant treachery of the English of mixed race, who, by the ordinance of the Roman curia, were bound to rule our nation with justice and moderation and have set themselves wickedly to destroy it; and in order to shake off the hard and intolerable yoke of their slavery and to recover our native liberty, which for a time through them we lost, we are compelled to wage deadly war with them, aforesaid, preferring under stress of necessity to put ourselves like men to the trial of war in defence of our right, rather than to bear like women their atrocious outrages.

And that we may be able to attain our purpose more speedily and fitly in this respect, we call to our help and assistance Edward Bruce, illustrious earl of Carrick, brother of Robert by the grace of God most illustrious king of the Scots, who is sprung from our noblest ancestors.

And as it is free to anyone to renounce his right and transfer it to another, all the right which is publicly known to pertain to us in the said kingdom as its true heirs, we have given and granted to him by our letters patent, and in order that he may do therein judgment and justice and equity which through default of the prince Edward II the King of England have utterly failed therein, we have unanimously established and set Edward Bruce up as our king and lord in our kingdom aforesaid, for in our judgment and the common judgment of men he is pious and prudent, humble and chaste, exceedingly temperate, in all things sedate and moderate, and possessing power (God on high be praised) to snatch us mightily from the house of bondage with the help of God and our own justice, and very willing to render to everyone what is due to him of right, and above all is ready to restore entirely to the Church in Ireland the possessions and liberties of which she was damnably despoiled, and he intends to grant greater liberties than ever otherwise she has been wont to have.

May it please you therefore, most Holy Father, for the sake of justice and general peace mercifully to approve what we have done as regards our said lord and king Edward Bruce, forbidding the King of England and our aforesaid adversaries henceforward to molest us, or at least be pleased to render us with fitting favour our due complement of justice in respect of them.

For know, our revered Father, that besides the kings of lesser Scotia who all drew the source of their blood from our greater Scotia, retaining to some extent our language and habits, a hundred and ninety seven kings of our blood have reigned over the whole island of Ireland.”

The Avignon Papacy neither recognised Edward Bruce’s claim to the High Kingship of Ireland, nor did it respond favourably to the Irish princes’ Remonstrance.  In October 1318 the Scots-Irish army under Edward Bruce was defeated by the Anglo-Norman forces of Edward II.   Edward Bruce was killed, his body quartered and sent throughout Ireland and his head delivered to King Edward II. Continue reading

Call for evidence: Scottish European and External Relations Committee on EU membership for an independent Scotland

Please find a link to the EER Committee’s call for views on the Scottish Government’s proposals for an independent Scotland’s membership of the European Union. The Committee is seeking views on three main themes: Scotland in the EU; the road to membership; and small states within the EU. Further details can be found on the Committee’s website.

The deadline for responses is 24 January 2014: however, if you are particularly interested in the road to membership and Scotland’s representation in the European Union, responses should be received by 16 January 2014, prior to oral evidence sessions due to take place on 23 and 30 January 2014.

Scotland’s Future in the EU

Prof. Kenneth A. Armstrong

The Scottish Government has produced its much-anticipated White Paper setting out the case for Scottish independence from the United Kingdom. In over six hundred pages, Scotland’s Future sets out the implications of independence across a spectrum of policy areas, including an independent Scotland’s relationship with the European Union. The core of the argument that is presented by the Scottish Government is for continuity of Scottish membership of the EU. Indeed, the spectre of a UK withdrawal from the EU gives added impetus to the case that is made not just for Scottish membership of the EU but for independence itself.

The White Paper is not a neutral expert analysis of the costs and benefits of Scottish independence. Rather it is a political and constitutional manifesto of the incumbent political party – the Scottish National Party – exercising power under the existing devolution settlement. Its aim is to provide greater clarity on the implications, and apparent benefits, of Scottish independence. Yet, in its analysis of an independent Scotland’s relationship with the EU, the White Paper lacks clarity and candour in three important respects:

  • Why is it right to hold a referendum on independence and not to have a referendum on whether an independent Scotland should be inside or outside the EU?
  • Why is it better to seek EU membership through a renegotiation of the treaties rather than through the normal accession process?
  • Is it self evident that a small state has greater European influence if independent compared to seeking influence via a larger state of which it is a constituent part? Continue reading

Scotland, independence and the EU: the Sturgeon response

Aidan O’Neill QC

In the wake of yesterday’s Statement to the Scottish Parliament by Scotland’s Deputy First Minister, Nicola Sturgeon MSP, responding to the Barroso intervention which suggested that an independent Scotland would automatically leave the EU and would have to apply for admission as a new Member State, a number of legal questions arise.

The first issue is whether, in the period before Scotland formally leaves the British Union, the EU and the Scottish government can lawfully enter into any negotiations regarding the terms upon which an independent Scotland might be recognised as a Member State of the European Union.    The answer to this legal question depends ultimately on whether the Court of Justice of the European Union (“CJEU”) would consider Scotland after a positive vote in favour of independence but before it left the British Union, to already be a “European State” for the purposes of Article 49 of the Treaty on European Union (“TEU”).   To predict how the CJEU might determine that question requires some understanding of that court’s approach to textual interpretation, particularly Treaty provisions.  Continue reading

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.” Continue reading

A Quarrel in a Faraway Country?: Scotland, Independence and the EU

Aidan O’Neill QC

Arabella Thorp and Gavin Thompson, researchers in the International Affairs and Defence Section and the Economic Policy and Statistics Section of the House of Commons Library Research have jointly authored – for the benefit of UK Parliamentarians – a short paper entitled Scotland, Independence and the EU. The authors consider the possible legal consequences for the EU and the UK of Scottish independence and state:

“This is a major question in the independence debate, and one to which there is no clear answer. There is no precedent for a devolved part of an EU Member State becoming independent and having to determine its membership of the EU as a separate entity, and the question has given rise to widely different views.”

They note that there are at least three different possibilities under international law:

(i)              Scotland is to be regarded as a wholly new State, with the remaining Union of England Wales and Northern Ireland (EWNI) being treated in international law as a (territorially decreased) continuation of the UK. The authors cite the precedents of the 1947 partition of India and the creation of Pakistan, and of the 1962 translation of Algeria from a series of départements integrated into metropolitan France to an independent State.

(ii)            Scotland and EWNI are each to be regarded as successor States to the divided UK.   The authors refer in this context to the de-merger of the short-lived United Arab Republic (1958-1961) back into its original constituent States of Syria and Egypt

(iii)          neither Scotland or EWNI are to be regarded as successor States to the dissolved UK.   The authors here allude to the birth, in 1993, of two wholly new States, Slovakia and the Czech Republic, from the territory of the former Czechoslovakia.

On the first scenario (which Thorp and Thompson term “continuation and secession”) EWNI as the “continuing UK” would retain the UK’s pre-secession treaty obligations and its membership of international organisations, including the EU and NATO, the Council of Europe, the UN and the IMF.  Scotland would start with a blank slate in terms of treaty rights and obligations, and would have to apply to be admitted in its own right as a new member of all and any international organisations.

On the second scenario (which they call “separation”) Scotland and EWNI would each succeed to the UK’s existing international commitments, and would each automatically accede to the international organisations of which the UK was a member, but now as two States rather than as one.

On the third scenario (which the authors describe as “dissolution”) neither Scotland and EWNI would succeed to any of the UK’s international obligations or memberships. Both States, newly independent of each other, would have to sign anew any treaties they wished to be bound by, and enter into negotiations with any international organisations they wished to be members of.

Of course, as the precedents of the break-up of the former USSR and the break-down of the former Yugoslavia show, the reality is likely to be more complex and one which may change over time. In international politics, just as much as international law, context is everything. Thus, some States and international organisations may choose to recognise EWNI as the “continuing UK”, or as the sole successor State to the UK.  Others might prefer to hold both EWNI and Scotland to the UK’s prior obligations and memberships.  And yet others could seek to take advantage of what they would characterise as the “dissolution” of the UK to escape the international obligations formerly owed to it, and/or to declare the UK’s previous membership of international organisations to be void.  This is, in a sense, where international law runs out and international Realpolitik takes over.  Everything depends on the particular terms of constitutions of international organisations, the extent of international recognition and the degree to which an international consensus is reached as to the status to be accorded to an independent Scotland and/or to a continuing UK shorn of its northern territories.

Continue reading