Scotland, possible independence and the EU

Lawrence Fullick

Lawrence Fullick

By Lawrence Fullick

The possible future independence of Scotland is not a simple case of a region of an EU member state gaining independence without any historical rationale. Scottish national identity developed from the ninth century and after several wars Scotland may be said to have been confirmed as an independent state in the fourteenth century when the Treaty of Northampton was signed in 1328 following the Scottish victory over the English in 1314 at the Battle of Bannockburn.

In 1603 on the death of the English Queen Elizabeth I the Scottish King James VI became also James I of England. In 1604 he proclaimed himself “King of Great Britain, France and Ireland”. There was no substance to a claim to France; Ireland was a medieval conquest by England. (Wales was then treated as part of England for many purposes.) The English and Scottish parliaments remained separate; the legal systems and the post-reformation religious structures were very different.

A Treaty of Union between England and Scotland was negotiated in 1706 by representatives of both countries; it was ratified following the passing of complementary Acts of Union in the English parliament in that year and in the Scottish parliament in 1707 thereby creating the United Kingdom of Great Britain. There followed political turbulence associated mainly with the Jacobite revolts in the eighteenth century. These were largely concerned with the succession to the British monarchy – Protestant Hanoverians or Catholic Stuarts.

In 1801 Ireland was added to the United Kingdom with the abolition of the Irish parliament after a similar passing of Acts of Union in the British and Irish legislatures; following the 1921 Anglo-Irish Treaty Ireland was divided with only the north-eastern part remaining in a United Kingdom of Great Britain and Northern Ireland, the present “UK”.

In the twentieth century there was a revival of Scottish independence aspirations. The Scottish National Party (SNP) was formed in 1934 but did not gain representation in the British parliament until 1967.

British Labour politicians saw Scottish independence as a threat to the strength of the Labour Party in the British parliament given the dominance of that Party in Scotland; without Scottish MPs in the British parliament it would be harder to elect a Labour government; after the 2010 General Election Scotland elected 41 of the 258 Labour MPs. Their political solution was “devolution” involving the setting up of a Scottish Assembly to have a restricted range of powers.

In 1969 the Labour government led by Harold Wilson set up a Royal Commission on the Constitution to look at a range of British constitutional issues. It finally reported in 1973 with a majority view including the setting up of a Scottish Assembly. In 1970 the government had changed from Labour to Conservative; in 1974 Labour regained power and the government published a White Paper broadly accepting the Commission’s proposals. After one unsuccessful attempt at legislation and a change of Prime Minister to James Callaghan the British parliament passed the Scotland Act 1978 providing for a Scottish Assembly to be set up if in a referendum in Scotland 50% of those voting and 40% of the electorate voted for it.

A referendum in March 1979 failed to produce the qualifying majority determined by the legislation; 51.6% of those voting voted yes but with a turnout of 63.8% this was only 32.9% of the electorate.

From May 1979 to May 1997 the UK had Conservative governments which did not progress with devolution proposals. However a Campaign for a Scottish Assembly was formed embracing non-Conservative politicians, trade unionists, local councillors and religious leaders leading to the drafting of a Claim of Right for Scotland signed by many people and then to the foundation of a Scottish Constitutional Convention chaired by the clergyman Canon Kenyon Wright which published a manifesto “Scotland’s Parliament, Scotland’s Right” in 1995 which outlined a structure for the Parliament. The SNP withdrew from the Convention objecting to the Labour Party strength in it. The significant involvement of the main churches should be noted – more notice is taken of them in Scotland, for example by the media, than in England.

The Labour government under Tony Blair elected in 1997 implemented its manifesto promise to proceed with a policy of devolution for Scotland and Wales. A pre-legislative referendum in September 1997 produced absolute majorities for two proposals: 74.3% for a Scottish Executive and Parliament to be set up and 63.5% for the Parliament to have tax-raising powers.

The British parliament passed the Scotland Act 1998 creating the Scottish Parliament and executive (now described as “government”). At the opening of the Parliament on 12 May 1999 the chair of the first session the veteran SNP member Winifred Ewing declared that  “the Scottish Parliament, which adjourned on the 25th day of March in the year 1707’ is hereby reconvened”; not a fair historical statement.

The two first elections to the Scottish Parliament in 1999 and 2003 produced coalition governments of Labour and Liberal Democrats.

The third election in 2007 led to a minority SNP government; the last election in 2011 led to a majority for an SNP government, a remarkable outcome given that the Labour creators of the electoral arrangements anticipated that the only possible election results were Labour or Labour-led governments. As at January 2013 the party strengths are SNP 65; Labour 37; Conservatives 15; Liberal Democrats 5; Green 2; independents 4; unaffiliated (the Presiding Officer) 1; total 129.

A referendum on independence was a promise in the 2011 SNP manifesto and after the election the First Minister Alex Salmond stated that such a referendum would take place within five years.

The British government since the 2010 election has been a coalition of Conservatives and Liberal Democrats. The Conservatives (traditionally known as “Unionists” in Scotland) are historically committed to the unity of the UK. Their attitudes are affected by their lack of UK MPs elected in Scotland – only one out the total 306 Conservative MPs elected in the 2010 General Election. The Liberal Democrats are committed to federal systems of government for the UK and for the EU, and have stood by this in making policy for Scotland.

The cabinet minister responsible for Scottish issues within the British government’s responsibility is Michael Moore a Liberal Democrat. During a visit to Brussels in December 2012 he said that the Scottish government did not have the legal powers to hold a referendum; to end uncertainty the Edinburgh Agreement of 15 October 2012 between the British and Scottish governments provided for the presentation of the necessary legislation to both parliaments so that detailed rules could be made by the Scottish government in accordance with Section 30 of the Scotland Act 1998. On 11 January 2013 the (British) House of Commons Scottish Affairs Committee advised that such legislation should be passed and as at mid-January 2013 the legislation is progressing through the British parliament.

Some issues arouse popular concern in Scotland: taxation; freedom of movement over the border with England. While the SNP has traditionally been a unilateralist party opposing military alliances a party conference in October 2012 agreed that an independent Scotland should seek membership of NATO. This might end doubts about the British and American submarine bases in Scotland. The British army has significant numbers of its members in Scottish regiments; they are significant employers.

Fishing is a major activity in many parts of Scotland; would an independent Scotland be able to defend its interests without British support? Other popular concerns in Scotland include continuing allegiance to the British monarchy and receiving the services of the BBC.

Ministers of the SNP controlled Scottish government assumed and stated as a fact that an independent Scotland would continue as part of the European Union. Others had doubts about this.

The Economic Affairs Committee of the House of Lords, the upper chamber of the British parliament, announced in February 2012 that it would conduct an inquiry into the economic implications of the UK of Scottish independence. In October 2012 the acting Chairman of the Committee the former  member of the European Commission Lord Tugendhat wrote to the Commission President Jose Manuel Barroso asking for the Commission’s view on the way it would handle an application on behalf of Scotland for EU membership.

A Scottish Labour MEP David Martin asked a written question as to whether the view expressed in March 2004 by the then Commission President Romano Prodi, that a newly independent region of a member state would cease to be part of the EU and it was open to European states to apply to join the EU under Article 49 of the Treaty on European Union, still applied; Mr Barroso replied on 3 December 2012 that it did. Mr Barroso replied to Lord Tugendhat on 10 December repeating the same sentiment. In December 2012 Mr Martin put a Written Question to the Commission asking if it would consider negotiating with a part of a member state which had voted for independence before the moment of separation and whether it would be a function of the UK government to conduct such a negotiation.

During his Brussels visit Mr Moore expressed the view that the outcome of negotiations was far from certain. An independent Scotland would not have the clout of a larger state. “How will they sort out the Schengen agreement? How will they negotiate an opt-out from the Euro?”

The Scottish government was further challenged on this issue by the opposition parties in the Scottish Parliament and on 13 December 2012 the Deputy First Minister Nicola Sturgeon stated that she had written to Mr Barroso; she wishes to meet him to have discussions but it is uncertain if he will meet her.

On 17 December 2012 Sir David Edward, formerly a judge of the European Court of Justice, expressed views more supportive of the SNP position. He said that account should be taken of the spirit of the EU Treaties more than of conventional public international law including doctrines of state succession unless the Treaties provide no answer. His opinion is that the EU institutions and all the member states would be obliged to start negotiations before separation took effect covering the future relationship of both Scotland and the rest of the UK with the EU. “The results of such negotiation are hardly, if at all, a matter of law” he wrote.

The Scottish First Minister Alex Salmond was accused of not complying with the Scottish Ministerial Code in his timing of seeking legal advice on the EU membership issue; a formal complaint was made by the Scottish Labour MEP Catherine Stihler whereupon Mr Salmond appointed Sir David Bell, Principal of the (English) University of Reading and an independent adviser to the Scottish government on the Ministerial Code, to conduct an investigation. Bell found that there had been no breach of the Code but recommended that the part of the Code relating to legal advice should be redrafted to make it clearer and more accessible.

If Scotland is admitted to the EU there are issues over the use of the Euro.  Would it be obligatory? Would this create a currency border within the UK? Would an independent Scotland continue to receive services from the Bank of England, the central bank of the UK.  Scottish lawyers in London are among those who have expressed reservations about this possibility.

It should be remembered that the Leaders of the parties in the British coalition declared in their “Programme for Government” in 2010 that “no further powers should be transferred to Brussels without a referendum”. The coalition agreement is intended to apply only until the next General Election in May 2015. The Prime Minister David Cameron has proposed to hold a referendum to approve the terms of a renegotiation of British membership of the EU after the 2015 UK General Election; this assumes that he will be in power. The Labour Party Leader Ed Miliband is less enthusiastic about holding a referendum if in government. So the nature of UK membership of the EU may change. A further possible complication is that the next Scottish General Election, now postponed to 2016 to avoid a clash with the UK election, might change the composition of the Scottish Government. This threatens the SNP’s hopes in sorting out the issue between a referendum in October 2014 and ending negotiation with the EU it hopes in July 2016.

For various reasons largely stated above a pro-independence vote in the Scottish referendum is not a foregone conclusion. An opinion poll conducted in December 2012 and January 2013 by Angus Reid for the Sunday Express produced the following result: Yes 32%; No 50%; Not Sure 16%; Will not vote 3%.

In the UK apart from Scotland, Wales and Northern Ireland also enjoy differing systems of devolution. The Labour government of Tony Blair had plans for Regional Assemblies in England but such a system only exists in London; a referendum in the North East of England rejected such a plan in November 2004. The UK might be defined as a unitary state with some application of federal principles in certain parts of its territory.  A traditional constitutional view supports the concept of the primacy of parliament, whereby the British parliament dispenses some power to other bodies but retains the right to take it back.

The question of how the EU should cope with Scotland becoming independent and wishing to be within the EU needs to be considered in the context of a discussion of how rigid should the EU’s structures be. Can continental people cope with the acceptance within the UK of the English, Welsh, Scottish and (partly) Irish nations within the British nation?

An important contribution to the discussion is a paper for EPC by Arno Engel and Roderick Parkes “Accommodating an independent Scotland: how a British-style constitution for the EU could secure Scotland’s future”. They suggest ways in which the EU collectively might try to prevent acceptance of Scotland becoming independent and remaining in the EU from becoming a model for other parts of member states trying to follow Scotland’s example. One possible solution involves the acceptance that the Scottish experience of independence in the past is more deeply seated than that of some regions in other member states. Engel and Parkes appear sympathetic to the idea that the EU might imitate some of the UK’s constitutional practices, at least to the idea of accepting asymmetry in its structures.

At the time of writing (mid-January 2013) many questions are still open.

Most federalists hope for a democratic EU, a federation of national states. Some are less concerned to preserve the national states and attach more importance to regions within them. Some willingness to accept “variable geometry” within the EU and individual member states will serve to assist the future development of the European Union.

 

Lawrence Fullick is Treasurer of Federal Union and of the Wyndham Place Charlemagne Trust, and a Member of UEF Federal Committee.  The author is grateful for advice given by Dr Andrew Blick and for assistance from friends in Scotland but remains solely responsible for the contents of the article.  This article was first published in The Federalist Debate.

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