Scottish Affairs CommitteeWritten evidence submitted by Aidan O’Neill QC

1. Introduction

1.1 In preparation for the oral evidence session of Scottish Affairs Committee on Monday 27 February at 1.00 pm in connection with the Committee’s inquiry into The Referendum on Separation for Scotland, I have prepared the following brief for the assistance of the Committee.

1.2 In sum my evidence will be as follows:

(1)Neither the Scottish Parliament nor the Scottish Ministers have the legal powers to hold a referendum on independence for Scotland under the Scotland Act 1998 in its current form. The devolved authorities in Scotland would have to be granted specific further powers by Westminster in order to make any such referendum by them lawful.

(2)Similarly, neither the Scottish Parliament nor the Scottish Ministers have the legal powers to hold a referendum on further devolved powers short of independence for Scotland (“devo-max”) under the Scotland Act 1998 in its current form. The devolved authorities in Scotland would also have to be granted specific further powers by Westminster in order to make any such referendum by them lawful.

(3)It is currently unclear what the effect of Scottish independence might have in relation to Scotland and the rest of the UK’s membership of and participation within other international organisations (for example the United Nations, the Security Council, NATO, the Council of Europe, G8). These are issues in which international law is more readily shaped by and blends into international politics.

(4)Should Scotland become independent, there are good legal arguments based on EU law (rather than EU politics) to the effect that Scotland and the rest of the UK will be regarded as continuing Member States of the European Union on the basis that the Court of Justice of the European Union (“CJEU”) would wish to give primacy to the idea of individuals’ existing European Union citizenship continuing no matter the constitutional changes within Member States.

2. The Constitutional Position of the Scottish Parliament under the Scotland Act

2.1 The Scotland Act 1998 is premised on a unitary constitutional model (the United Kingdom as a “Nation State” rather than a “State of Nations”). Under this model legal power is devolved to Holyrood, but not divested from Westminster. On this constitutional analysis, Section 1(1) of Scotland Act provides that “there shall be a Scottish Parliament” because the Crown, acting on the advice of the Westminster Parliament, so wills it; not because the “Scottish people” has brought it into being.1 The Scotland Act modifies the terms, but maintains the fact, of Union between Scotland and England: section 37 states that “The Union with Scotland Act 1706 and the Union with England Act 1707 have effect subject to this Act”.

2.2 The Westminster Parliament has set legally enforceable limits on the power of the Scottish Parliament by providing in Section 29 of the Scotland Act as follows

“29.— Legislative competence

(1) An Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament.

(2) A provision is outside that competence so far as any of the following paragraphs apply—

(a) it would form part of the law of a country or territory other than Scotland, or confer or remove functions exercisable otherwise than in or as regards Scotland,
(b) it relates to reserved matters…2

2.3 Section 54(3) SA provides that it is outside the “devolved competence” of the Scottish Ministers to exercise any of their functions in any way which would be outside the legislative competence of the Scottish Parliament.

2.4 As the First Division noted in Imperial Tobacco v. Scottish Ministers (which concerned the issues as to whether sections 1(1) and 9 of the Tobacco and Primary Medical Services (Scotland) Act 2010 banning retail display of tobacco products and outlawing tobacco vending machines was outside the legislative competence of the Scottish Parliament and accordingly not law) even if one were to characterise the Scotland Act as a “constitutional statute”, that did not mean that there was any legal presumption in favour of the validity of the acts of the devolved authorities under the statute.3 The Lord President observed that the purpose of the Scotland Act was “the division of functions between the Scottish Parliament and the United Kingdom Parliament. There is nothing in the statute or in its background which suggests that one should read the provisions of Schedule 5 [to the Scotland Act], or of any of the other provisions of the statute, expansively or restrictively.” While Lord Reed said this:

[71] The Scotland Act is not a constitution, but an Act of Parliament. There are material differences. The context of the devolution of legislative and executive power within the United Kingdom is evidently different from that of establishing a constitution for an independent state such as Jamaica or Barbados, or a British overseas territory such as Bermuda. In form, the Scotland Act does not resemble the fundamental rights provisions of a constitution: its provisions are dense and detailed. The Scotland Act can also be amended more easily than a constitution: a factor which is relevant, since the difficulty of amending a constitution is often a reason for concluding that it was intended to be given a flexible interpretation. Although the UK Government’s stated policy on legislation concerning devolved matters,4 known colloquially as the Sewel Convention, may impose a political restriction upon Parliament’s ability to amend the Scotland Act unilaterally, there have nevertheless been many amendments made to the Act. They include amendments to Schedules 4 and 5, which can be effected under section 30 by Order in Council”

and

“[T]he power of the Scottish Parliament to legislate is limited by the Act of Parliament which established it. It is the function of the courts to interpret and apply those limits, when called upon to do so, so as to give effect to the intention of Parliament. In performing that function, the courts do not undermine democracy but protect it. As Lord Bridge of Harwich observed in X Ltd v Morgan-Grampian (Publishers) Ltd [1991] 1 AC 1, 48:

“The maintenance of the rule of law is in every way as important in a free society as the democratic franchise. In our society the rule of law rests upon twin foundations: the sovereignty of the Queen in Parliament in making the law and the sovereignty of the Queen’s courts in interpreting and applying the law”.5

2.5 Thus any interested party may bring a challenge before the courts as to the compatibility of any Act of the Scottish Parliament (or action or inaction on the part of the Scottish Ministers) with the limitations on their powers as laid down in the Scotland Act.6

3. Referendum on Scottish Independence

3.1 Paragraph 1 of Schedule 5 to the Scotland Act states that:

“The following aspects of the constitution are reserved matters, that is—

(a) the Crown, including succession to the Crown and a regency,

(b) the Union of the Kingdoms of Scotland and England,

(c) the Parliament of the United Kingdom”

3.2 Thus any Act of the Scottish Parliament which “relates to” the union between Scotland and England, or the constitutional position of the Crown or the UK Parliament, will simply not be law because any such Act would be outside the legislative competence of the Scottish Parliament to pass. On the face of it, this presents an insurmountable legal obstacle to the Scottish Parliament enacting any law which would provide for an independence referendum to be held in Scotland. How else might any such measure, in terms of both its purpose and effect,7 be described other than as “relating to” these reserved aspects of the constitution? And, Lord Sewell, the promoter of the Scotland Bill in the House of Lords, advised Parliament:

“[A]s the Bill stands the Scottish Parliament will not be able to legislate to hold a referendum on independence as the union of the kingdoms is already a reserved matter. …. [L]egislation for a referendum on independence would be legislation about whether the Union should be maintained and so be beyond the competence of the [Scottish] parliament.”8

3.3 And in promoting the Scotland Bill before the House of Commons, the then Secretary of State for Scotland Donald Dewar MP said in response to three direct questions from MPs as to whether or not the Scottish Parliament of itself could initiate a referendum on independence that:

“It is clear that constitutional change--the political bones of the parliamentary system and any alteration to that system--is a reserved matter. That would obviously include any change or any preparations for change ….A referendum that purported to pave the way for something that was ultra vires is itself ultra vires…..[M]atters relating to reserved matters are also reserved. It would not be competent for the Scottish Parliament to spend money on such a matter in those circumstances.”9

3.4 The current SNP led Scottish administration has previously argued that it would nonetheless be lawful for the Scottish Parliament to make provision for an “advisory” referendum on independence which was not “legally binding” but which would, it is said, give the Scottish government a political mandate to open “independence negotiations” with the UK Government. No formal legal advice to this effect has been published by the Scottish Government.

3.5 But the argument that the devolved authorities in Scotland have power to organise a non-binding referendum which relates to reserved matters, but not a binding one would seem to be difficult one to sustain before a court in the face of any challenge to the legality of such provision by the Scottish Parliament for the following reasons, among others:

(i)given the principle that a delegated authority cannot itself further delegate power or fetter the discretion statutorily granted to it, no referendum ever organised by the Scottish Parliament could ever said to be “binding” on it, so the purported distinction between “binding” and “non-binding” referendums is meaningless;

(ii)neither the Scottish Parliament or the Scottish Ministers has any power to alter the terms of (and limitations imposed by) the Scotland Act itself (see paragraph 4 of Schedule 4 SA). And no referendum organised by the devolved authorities could ever bring it within their powers to make any provision relating to the dissolution of the Union of Scotland and England. Accordingly any expenditure of Scottish public monies by the Scottish devolved authorities in organising and holding any referendum could potentially be subject to challenge before the courts as irrational, and so unlawful; and

(iii)the claim to be able to hold any such referendum runs contrary to the understanding and intention of the UK Parliament when passing the Scotland Bill.

3.6 There is no doubt, however, that the UK Parliament has the power to make arrangements for referendums anywhere within the UK on such issues as it wishes to consult the people on. The UK Parliament may therefore itself hold a UK dissolution/Scottish independence referendum or confer, on such conditions as it consider proper, power on the Scottish Parliament to make provision for such a referendum. Further under Section 30(2) SA the UK Government may by Order in Council modify the terms of Schedule 4 and 5 of the Scotland Act as it may consider “necessary or expedient”.

3.7 In a statement to the UK Parliament on 10 January 2011 Michael Moore MP, the Secretary of State for Scotland, has stated that it remains the view of the current UK Government—consistently with the position taken by Lord Sewel in 1997—that the Scottish devolved authorities had no power to legislate for an independence referendum, since its purpose and intended effect would ultimately be to seek to achieve Scottish independence. The UK Government rejects the claim that one could distinguish in law between a binding and non-binding referendum for these purposes. The UK Government has therefore decided that—following a public consultation process10 as to the timing and terms of and process for any such referendum—to provide the necessary powers to the devolved authorities for such a referendum to be held by them in Scotland.

3.8 As regards the political/moral legitimacy of Westminster so intervening in “internal” Scottish affairs, it may be noted that in the 2010 General elections to the UK Parliament, of the 59 MPs elected from Scotland, only 6 were from Scottish Nationalist Party, with the remaining 53 of Scotland’s MPs being made up of parties (Labour, Conservative and Liberal Democrats) all committed to the maintenance of the union between Scotland and England. Unionist MPs in the Westminster Parliament therefore claim to have a political and democratic mandate from the people of Scotland on this matter, just as much as (if not more than) the nationalist MSPs in the Scottish Parliament.

4. Referendum (Question) on Increasing the Powers of the Scottish Parliament

4.1 In its own January 2012 consultation paper Your Scotland, your referendum the Scottish Government has said this:

“Powers of the Scottish Parliament to legislate for a referendum

“1.5 A wide range of opinion has been expressed about whether or not the Scottish Parliament has the power to hold a referendum consulting the Scottish people about independence. The Scottish Government’s February 2010 paper set out a referendum question asking whether the powers of the Scottish Parliament should be extended to enable independence to be achieved. The Scottish Parliament has the power to legislate for a referendum as long as that would not change any reserved law or relate to those aspects of the constitution which are reserved by the Scotland Act 1998. The referendum question proposed in 2010 was carefully phrased to comply with that requirement. Much independent legal opinion supports the Scottish Government’s view.

1.6 What is not in question is the competence of the Scottish Parliament to legislate for a referendum about changes to the powers of the Scottish Parliament within the framework of devolution. Legislation to hold a referendum on “devolution max” for example … is clearly within the existing powers of the Scottish Parliament.
….
1.25 While the Scottish Government’s preferred policy is independence, it recognises that there is support across Scotland—from individuals and organisations—for increased responsibilities for the Scottish Parliament short of independence. One option, full devolution (or “devolution max”) was set out in some detail in Your Scotland, Your Voice and associated, more detailed publications. Under this option, the Scottish Parliament would, with certain exceptions, be responsible for all laws, taxes and duties in Scotland. The main exceptions, which would continue to be the responsibility of the UK Parliament, would include defence and foreign affairs, financial regulation, monetary policy and the currency. Short of independence, this option would confer significant economic powers on the Scottish Parliament”.11

4.2 I am afraid that I do not share the Scottish Government’s expressed confidence that:

“legislation to hold a referendum on “devolution max” for example … is clearly within the existing powers of the Scottish Parliament.”

There is no doubt that the Scottish Parliament has power to organise referendums or polls in relation to devolved matters. However the issue of whether the Scotland Act should be altered to allow for further powers to be devolved to the Scottish Parliament by Westminster is not a devolved matter. Instead Paragraph 4(1) of Schedule 4 to the Scotland Act 1998 says in terms that:

“An Act of the Scottish Parliament cannot modify or confer power by subordinate legislation to modify this Act”.

4.3 A “devo-max referendum” organised and funded by the Scottish devolved authorities without specific further authorisation from Westminster, would arguably therefore also be ultra vires as being any attempt by the Scottish Parliament to widen the scope of its legislative competence as defined in Schedules 4 and 5.12 The lawfulness of any such referendum might also be made the subject of a challenge before court as an abuse of powers by the Scottish Parliament and the Scottish Ministers on the basis that organising and holding referendum would involve the devolved authorities in spending public money and otherwise using public resources to ask a question in relation to a matter which it has no power to effect, namely further amendment of the Scotland Act to give the Scottish Parliament more powers.

5. An Independent Scotland and International Organisations

5.1 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 http://www.parliament.uk/business/publications/research/briefing-papers/SN06110 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”.

5.2 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.

5.3 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.

5.4 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.

5.5 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.

5.6 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.

6. An Independent Scotland and the EU

6.1 But what of the EU? According to the Court of Justice of the European Union (the CJEU), the EU differs from other international organisations in being “based on the rule of law, inasmuch as neither the Member States nor its institutions can avoid a review of the question whether the measures adopted by them are in conformity with the basic constitutional charter, the Treaty.”13 The Luxembourg Court has continually stressed the distinctiveness of the EU legal order from, and its primacy over, other systems of public international law, including the UN Charter,14noting as long ago as 1964 that:

“By contrast with ordinary international treaties, the EEC Treaty has created its own legal system which, on the entry into force of the Treaty, became an integral part of the legal systems of the Member States and which their courts are bound to apply. By creating a Community of unlimited duration, having its own institutions, its own personality, its own legal capacity and capacity of representation on the international plane and, more particularly, real powers stemming from a limitation of sovereignty or a transfer of powers from the States to the Community, the Member States have limited their sovereign rights, albeit within limited fields, and have thus created a body of law which binds both their nationals and themselves. 15

6.2 From the perspective of the Court of Justice, EU law is an overarching supranational legal order binding on and enforced against the Member States. Membership of the EU may be likened to a form of international citizenship for nations. Just as the citizen cannot select obligations once citizenship has been accorded, so Member States may not reject Treaty obligations which prove uncongenial. And EU law—unlike general public international law—also imposes obligations and confers rights directly on individuals. Article 20(1) of the Treaty on the Functioning of the European Union (“TFEU”) re-asserts the concept of EU citizenship, first created in the 1992 Maastricht Treaty. The status of EU citizen is automatically afforded to “every person holding the nationality of a Member State” though and “citizenship of the Union shall be additional to and not replace national citizenship”. However, in Zambrano v Office national de l’emploi (ONEm) the CJEU Grand Chamber claimed that “citizenship of the Union is intended to be the fundamental status of nationals of the Member States. … In these circumstances, Article 20 TFEU precludes national measures which have the effect of depriving citizens of the Union of the genuine enjoyment of the substance of the rights conferred by virtue of their status as citizens of the Union.”16 While the conferral on individuals of rights associated with national citizenship remains wholly within the exercise of the sovereign power of the Member States, the CJEU has held that the purported withdrawal of a Member State of national citizenship rights or status once conferred may bring matters within the ambit of EU law. Thus in Rottmann v Bavaria the Grand Chamber of the CJEU found that EU citizenship required a Member State to exercise its powers to deprive or withdraw an individual’s nationality compatibly with the principles of EU law. The fact that such issues fell centrally within the legal competence of the Member States did not, in the view of the Grand Chamber, preclude the concurrent application of EU law in this area. Because the exercise of that Member State power against its own nationals also directly affected the rights conferred on that Member State’s national qua EU citizen, the matter was held to fall within the jurisdiction of the CJEU as the ultimate guardian of the EU citizen’s EU law rights.

6.3 Further, the EU Charter of Fundamental Rights now has the same legal value as the Treaties (Article 6(1) Treaty on European Union). The opening recitals to the Charter’s preamble are in the following terms (emphasis added):

“The peoples of Europe, in creating an ever closer union among them, are resolved to share a peaceful future based on common values. Conscious of its spiritual and moral heritage, the Union is founded on the indivisible, universal values of human dignity, freedom, equality and solidarity; it is based on the principles of democracy and the rule of law. It places the individual at the heart of its activities, by establishing the citizenship of the Union and by creating an area of freedom, security and justice.”

6.4 How do those considerations impact upon the question as to the effect, as a matter of EU law, of Scottish independence on the UK’s membership of the EU ? I would suggest that rather than analyse the matter from the classic viewpoint of public international law—which recognizes only States and international obligations as the subject and object of international rights and obligations—EU law requires one to look at the issue from the viewpoint of the individual EU citizen.

6.5 Seen from that angle, the question to ask is whether the CJEU would consider that the fact that Scotland became independent required that all (or any portion) of the previous UK citizenry thereby be deprived of their acquired rights as EU citizens? Given the CJEU’s high theology of the primacy of EU law, and of EU citizenship as being “the fundamental status of nationals of the Member States”, it is suggested that the most likely position that the Luxembourg court would take, if faced with the question of Scottish independence, would be the second scenario—“separation”, as outlined by Thorp and Thompson above. That is to say that the CJEU would rule that Scotland and EWNI should each succeed to the UK’s existing membership of the EU, but now as two States rather than as one. Such a ruling by the Court would affirm the primacy of EU law over national and international law, confirm the role of the CJEU as the final arbiter on such weighty matters of State(s), and be presented as EU law re-connecting with, and protecting the acquired rights of, individual EU citizens.17

6.6 The very form and structure of the EU Treaties might also lead the CJEU to refuse to countenance the possibility of any form of automatic secession from the EU, whether by the splitting of a Member State into two or more international persons or by any other mechanism not expressly provided for in the Treaties. The EU Treaties have been concluded for an unlimited period (see Article 53 TEU). Indeed, until the insertion of a new Article 50 TEU by the 2007 Lisbon Treaty, the Treaties contained no provision for the secession or unilateral withdrawal of Member States from the EU. Before that, a State or part thereof might leave the EU not by unilateral act, but only after negotiation and agreement; thus, in 1985, Greenland left the EU after formal amendment of the Treaty. 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. In sum, a Member State can now lawfully get out of the EU, but only by timeously and expressly applying so to do.

6.7 So, contrary perhaps to the as yet unexpressed hopes of some UK Eurosceptics, Scottish independence is unlikely to provide either Scotland or the rest of the UK with a “get out of (EU-) gaol free” card. But the implications for the UK’s other international obligations, relations and memberships would remain to be determined should Scotland ever leave the (British) Union.

February 2012