The European Union is nothing if not creative. To take but one example (and the seamless extension of the Union over the territory of what was formerly East Germany is another), Denmark joined the then European Communities in 1973, taking Greenland with it, despite the majority of the population of Greenland voting against membership. In 1982 a consultative referendum held in Greenland once again produced a vote against membership, and in 1985, by virtue of a Treaty adopted by the members of the then European Communities including the UK, the territory of Greenland, albeit remaining subject to Denmark, ceased to be part of such Communities.
No recourse was required on that occasion to a mechanism analogous to today’s article 50 of the Lisbon Treaty on European Union, nor did one then exist.
What then of Great Britain and Northern Ireland, not forgetting the overseas European territory of Gibraltar? It appears at present to be the position of the UK Government that the recent referendum has to be viewed as expressing the democratic will of a single country, namely the United Kingdom of Great Britain & Northern Ireland (with Gibraltar), notwithstanding the fact that as the name of the state confirms, it is itself formed from more than one kingdom. Such an interpretation of the path of democracy was certainly not the interpretation followed in respect of Denmark and Greenland in 1982-85. It is also an interpretation that would lead to only one of the UK’s four component parts in the referendum (counting England & Wales as one and Gibraltar as another) actually achieving what the majority of its electorate had voted for.
In this article, although focus will be placed upon Scotland, it is important to remember that majorities for remaining in the EU were recorded not only as to Scotland itself but also as to Northern Ireland and Gibraltar.
Scotland’s case is however different from that of Northern Ireland and Gibraltar, since the position of Scotland in Europe was a topic much debated prior to the 2014 referendum in Scotland, and indeed was the subject of specific representations made by the UK Government with regard to its continuing membership of the EU within the context of that referendum.
UK Government representations pre-2014 referendum
In February 2013 the UK Government under Prime Minister Cameron published Scotland analysis: Devolution and the implications of Scottish independence. As set out in the executive summary (p 6, v.): "It is crucial that the referendum debate is properly informed. People in Scotland expect and deserve good information on which to base their decision.”
The UK Government thus made the representation that it was not merely the provider of “good information” but of information upon which the people in Scotland were intended by that Government to base their decision when voting.
The analysis provided was based as to legal issues upon the opinion of two international law professors whose preferred view was that in the event of a “yes” vote being recorded: “in the eyes of the world and in law Scotland would become an entirely new state” (p 7, xiv; emphasis in the original).
In the present context what is important however is that in 2013 the UK Government was making a firm representation to the people of Scotland, which may be viewed in the premises as akin to a covenant with that people, that Scotland’s position within the EU would be preserved and furthermore that the only certain way in which Scotland could retain its position within the EU was by remaining a part of the UK. The representation carried no warning that in the event of a future referendum as to the UK’s membership of the EU, a vote by people in Scotland in favour of remaining within the EU could be overridden by a majority coming from another part or parts of the UK.
One cannot know what proportion of the electorate voting in the 2014 referendum in favour of remaining within the UK did so wholly or in part due to the above representations as to facts and law. The very fact that the majority of the people in Scotland voted to retain EU membership in the 2016 referendum points however to the likelihood that such representations as to EU membership were indeed important.
At the very least it may be suggested that the Scottish electorate had been led by the representations of the UK Government in 2013-14 to entertain the reasonable expectation that if a majority of those in Scotland voted to remain within the EU at some later date, the UK Government would regard itself as honour bound to use its best endeavours to ensure that Scotland did indeed retain its position within the EU, whatever the referendum decision was in respect of the other parts of the UK.
At present the indications are that the UK Government has no intention of honouring such expectation. If this standpoint continues to be maintained under Prime Minister May, one will be left with the unfortunate situation that the UK Government, having encouraged voters in Scotland for the purposes of the 2014 referendum to believe that their future in the EU was safe only through maintaining the 1707 Union with England, will itself be taking the legal steps required to implement Scotland’s exit from the EU irrespective of the fact that the Scots electorate has voted to stay in the EU.
The role of the Queen as Head of State
It was in the name of HM the Queen of the United Kingdom of Great Britain & Northern Ireland that the United Kingdom of Great Britain & Northern Ireland joined the Lisbon Treaty on European Union. The core meaning of the term “United Kingdom” has until recently been well put on the official royal website, though www.royal.gov.uk, which contained the quotation cited here, was replaced by www.royal.uk in April 2016. Referring initially to the Union of the Crowns of England and Scotland in 1603, it stated: “The Union of the Crowns was followed by the Union of the Parliaments in 1707. Although a new Scottish Parliament now determines much of Scotland's legislation, the two Crowns remain united under a single Sovereign, the present Queen.”
Of course it was the uniting of the two crowns of England (which includes Wales for these purposes) and Scotland, that produced the new state called Great Britain to which Ireland was subsequently added. What must be remembered is that although England and Scotland are greatly different in terms of size of territory and population, in terms of sovereignty as to the 1707 Union which created the new Crown and state of Great Britain, they were and are equal.
The 2016 referendum produced a vote in favour of leaving the EU in England & Wales only. The referendum question did not deal with the issue as to how a vote to leave was to be implemented. To adopt the article 50 TEU procedure, whether as an exercise of the royal prerogative or by virtue of a decision in the UK Parliament is in a sense to employ something of a blunt instrument in the case of a state such as the United Kingdom which is formed of various component parts under a single head of state.
It should not be forgotten that an intrinsic part of the EU is the Charter of Fundamental Rights, which provides in its preamble that the EU is founded inter alia on the principle of democracy. Although the UK has exercised an “opt out” in respect of the Charter, it is hard to imagine that the Union itself, being founded on such a principle, could readily ignore an approach from the UK Government were it to be made, for some more creative solution to be found in the light of the outcome of the 2016 referendum, which was respectful of the democratically expressed wishes of the various electorates within the component parts of the UK and of Gibraltar.
A model for respect
One such model, by analogy with the Denmark-Greenland solution (which such solution was in the premises respectful of the democratic choice of the Greenland electorate), could be achieved with the agreement of the EU, in such manner as to maintain the membership of the EU of the United Kingdom of Great Britain & Northern Ireland. This would be on the basis that the Queen, as head of state of the UK, would continue UK state membership as before. The territory of the state within the EU would however be reduced so as not to include England & Wales. There would be no need to change the name of the state, as Scotland, whose union with England led to the creation of Great Britain, would be regarded as representing Great Britain within the EU.
The UK Government would be hard pressed to find a legitimate reason in principle to take exception to seeking such an agreement, whatever the views of its international law experts, bearing in mind that it had been claimed in 2014 in the analysis paper above referred to that the United Kingdom would retain EU membership even though that part of it called Scotland was seemingly to be ushered out through an EU “exit” procedure were Scotland to become independent.
Looking at the matter from another angle, one might take as a hypothetical case the circumstance that the electorate in Scotland alone had voted in 2016 to leave the EU. Leaving aside political considerations raised by this hypothesis, the legal argument that the UK’s membership of the EU could continue even were its territory no longer treated as embracing Scotland might logically have been pursued.
Since the 1707 Union was of Crowns of equal sovereignty, it is evident that if the UK could remain unchanged in its membership of the EU without Scotland, then the like must apply, if the roles were in essence reversed, and the territory of the UK within the EU reduced by the disapplication of the TEU to the territory of England (& Wales).
As to Greenland and Denmark, the solution as regards the then European Communities was simplicity itself. The 1984 Treaty baldly stated as to the Coal and Steel and Atomic Energy Communities respectively, “The Treaty shall not apply to Greenland”. As to the Treaty establishing the European Economic Community, there were special arrangements for Greenland set out in a Protocol.
Again by analogy with the Denmark-Greenland solution, and on the basis of the United Kingdom of Great Britain & Northern Ireland remaining part of the EU, one could include a protocol setting out special arrangements if any for England & Wales and, if need be, Gibraltar.
Prior to the 2014 referendum held in Scotland, the UK Government had put before the Scots electorate as a likely if not inevitable scenario that in the event of Scotland becoming an independent country, her position in the EU would be lost and she would have to become an applicant state. I have explained why in my view the UK Government was wrong in adopting this view in an article entitled “The ‘State’, the ‘Crown’ and the Union of Scotland and England: Reflections on what might become the Sovereign’s ‘new clothes’”, Juridical Review 2014 (3), 165-176 at 174, published shortly before that referendum. Right or wrong, the message transmitted to the electorate of Scotland by the UK Government was clear – that if they wished to remain within the EU they should vote to remain part of the UK.
In the immediate aftermath of the EU referendum of 2016, the situation seems on the contrary to be that, as if in imitation of Wagner's Götterdämmerung rather than out of respect for democratic principle, the UK Government will require all parts of the UK, together with Gibraltar, to take willingly or unwillingly the “exit” door from the EU, no matter the individual wishes of the component parts of this so called “family of nations”.
The object of the current article is to point out that, just as the UK Government was willing to assert in 2013-14 that the United Kingdom of Great Britain & Northern Ireland could continue as a member of the EU without Scotland, so it is open to it to adopt the standpoint in forthcoming negotiations with the EU that the United Kingdom of Great Britain & Northern Ireland could continue as a member of the EU without England & Wales. In so doing, the UK Government would at the same time be honouring what has been referred to above as something akin to a covenant with the Scottish electorate entered into prior to the 2014 referendum that Scotland’s position in the EU would be safe were it to remain within the UK.
In this issue
- Environmental law outside the EU
- 2014 revisited: championing Scotland in the EU
- “Justice for sale”
- After the fling
- Traps for the unwary
- Reading for pleasure
- Opinion: Rory Scothorne
- Book reviews
- President's column
- Leading by example
- People on the move
- Brexit: a full menu
- Appeal of the new court
- Hostility enacted
- Socially motivated
- Back on the case?
- Send the client in?
- What does Brexit mean for planning and environmental law?
- Immigration meets licensing: not a marriage made in heaven
- Post-Brexit taxation: less of a certainty?
- Scottish Solicitors' Discipline Tribunal
- Community right and commercial sale
- Plane language
- Law reform roundup
- SSDT has a new clerk
- Covered by the terms?
- Ask Ash
- To boldly go...
- Hacking into the law
- Paralegal pointers