Why England should leave the UK
The Union with Ireland Act 1800 established a unitary state composed of two distinct countries: The Kingdoms of Ireland and Great Britain (which was already a single state unifying Scotland and England (whose laws at the time already applied to the territory of Wales) and which was established by the Acts of Union 1707).The existence of that Union, which is now between Great Britain and Northern Ireland, is currently being called into question, and, while it would be both costly and time-consuming to deconstruct the state into its constituent parts, following the Brexit referendum and the subsequent hijacking of the Union by English nationalism, this is a relevant and serious political topic.
On Monday 19 March 2017, Nicola Sturgeon, First Minister of Scotland, declared that she was preparing the process whereby a second independence referendum would take place in Scotland in late 2018 / early 2019. The next day, Michelle O’Neill MLA, the leader of the nationalist Sinn Fein party in the devolved Northern Ireland Assembly, demanded a referendum take place in Northern Ireland on Irish unification. Unlike the Scottish independence referendum, which would need another authorising Act adopted by the Westminster Parliament, Article 1(ii) of the Belfast Agreement 1998, an international treaty between Ireland and the UK, states that it is for the people of Northern Ireland to decide by majority in a referendum if it wants to leave the UK and join the Irish state (subject to a similar desire of the majority in the rest of Ireland). Article 1(iv) further adds that “it will be a binding obligation on both Governments to introduce and support in their respective Parliaments legislation to give effect to that wish”.
From a European law perspective, the issues presented by these potentialities are not overly complex (from a political perspective, there is little doubt that they are), as the chronology of events could most likely look like this: the UK government makes the withdrawal notice to the European Council; the UK leaves the EU; Scotland secedes from the UK following a successful independence referendum campaign; Northern Ireland secedes from the UK, and may or may not unify with Ireland, an EU Member State; Scotland applies to join the EU as a new Member State.
The idea that Scotland would have to apply as a new EU Member State is perhaps the most controversial of all the possible outcomes mentioned above (as they apply to EU law) and has become known as the ‘Barossa doctrine’, following the comments of former European Commission President, Manuel Barossa, before the first Scottish independence referendum, that Scotland would be a new country and would have to apply to join the EU like every other third country.
From the viewpoint that the EU is an international organisation of states, this would make sense. For example, Slovakia and Czechia became members of the United Nations on 19 January 1993, following their creation as successor states to Czechoslovakia, a founding member of the UN in 1945. They were new countries, and had Czechoslovakia been a Member of the EU at the time, they would probably have had to apply to join as new Member States. But the EU is not just an international organisation of states; it is also a Union of people. To quote the famous statement of the Court of Justice of the EU in Van Gend en Loos in 1963:
“The European [Union] constitutes a new legal order of international law for the benefit of which the states have limited their sovereign rights, albeit within limited fields, and the subjects of which comprise not only the member states but also their nationals.”
Since that time, the European Union, for the internal application of EU law, has been an international organisation comprised not only of states but of citizens (this statement is admittedly controversial, and there are plenty of discussions about its meaning elsewhere); a detail which has manifested itself in many different ways since then, not least with the creation of European Citizenship. But what if none of this had to be a legal issue for Scotland, and what if there was a solution that would allow both Scotland to stay in the EU and let England leave without worrying about Article 50 deadlines and transitional agreements?
The argument would run like this:
The United Kingdom was established by a series of Acts of both the Irish and British Parliaments to unify the legislatures of those countries. Article 1 of the Union with Ireland Act 1800 stated that on 1 January 1801, Great Britain and Ireland shall be united into one kingdom, with Article 8 providing that one parliament (Westminster) shall be able to change the laws in the country. The secession of part of Ireland from the UK, following the Anglo-Irish Treaty of 1921, was formalised in the UK by the Irish Free State Constitution Act 1922 (Session 2) (now repealed). Once Ireland had seceded from the UK, the name of both the nation and parliament were changed by an Act of Parliament: Section 2 of the Royal and Parliamentary Titles Act 1927 states that:
“(1) Parliament shall hereafter be known as and styled the Parliament of the United Kingdom of Great Britain and Northern Ireland;
(2) In every public document issued after the passing of this Act the expression “United Kingdom” shall, unless the context otherwise requires, mean Great Britain and Northern Ireland.”
The changing of the name of the state was therefore subject to an entirely internal constitutional process, and, unlike the dissolution of Czechoslovakia, for example, where two successor states emerged as new countries, with the secession of Ireland, the UK retained the character of the residual state, with internal law changing the definition of the internationally recognised title for the country: the “United Kingdom”. If another country were to leave the United Kingdom, arguably the same internal constitutional requirements would apply, with the residual state remaining the UK for international law purposes, with the assumption for the last few years being that the country next to leave would be Scotland. Brexit aside, that would have meant that the rump UK would remain an EU Member State and Scotland would become the third country. But what if England were the country to leave?
The likely process, whoever leaves the UK, will be something like that which applied when Ireland seceded, but the big difference between then and now is the effect of EU law on the secession of a piece of territory of an existing Member State. The only available parallel for reference is the reunification of German in 1990, which extended the territory of the European Union without accession of a new Member State, the opposite of what would happen if either Scotland or England acceded from the UK. In accordance with the Basic Law of the Federal Republic of Germany, specifically Article 23, the unification of Germany in legal terms was actually the extension of the West German Republic to include the GDR, and thus extending territorially the application of West German law and European Union law. There were other methods available at the time, such as the adoption of a new constitution establishing a new, unified, state, but the internal enlargement method was preferred, not least by Jaques Delors, President of the European Commission, in a speech to the European Parliament in 1990. The reasoning included the fear that accession negotiations would give other EU governments or national parliaments the opportunity to extract concessions or secure advantages for themselves as the price for accepting German unification.
An important lesson from this episode in history is that, while the unification of Germany was perceived to have a profound impact on the EU and individual Member States, it was most definitively up to the German Federal Republic to determine its own borders and populations. As Margaret Thatcher noted in her autobiography ‘Statecraft: Strategies for a Changing World’ (2002):
“Awareness of the past and uncertainty about the future led President Mitterrand and me, with not very effective assistance from President Gorbachev, to try to slow down the rush to German unification. In the end, we failed — partly because the United States administration took a different view, but mainly because the Germans took matters into their own hands, as in the end, of course, they were entitled to do.”
This fits with other examples where the territory of a Member State has changed in ways that were not recognised by the EU Treaties, but were nonetheless effective; the independence of Algeria from France did not require Treaty amendment, but the removal of Greenland as a part of Denmark and the EU did, because it was referred to specifically in the EEC Treaty. The same is only partly true regarding references to the UK in the Treaties. Article 52 of the Treaty on European Union only says that it applies to the United Kingdom of Great Britain and Northern Ireland, with Article 355 of the Treaty on the Functioning of the EU adding that it applies to the Channel Islands and the Isle of Man in specific contexts relating to new Member States acceding. So arguably, the UK example follows the German precedent, and there are few legal impediments to the rump UK (minus England) from continuing as an EU Member State.
The possibility exists that something in international law could lead to complications. Article 31 of the 1978 Vienna Convention on Succession of States holds that a successor state acquires a new personality in international law. This does not technically have to apply to the UK, however, as the personality of the UK would persist, except that it is exercised from Edinburgh. England, on the other hand, would become a new legal personality in international affairs. Article 31 further allows successor states to maintain international treaties that were already in force, but only within the territorial scope of the earlier state. What this means is that, theoretically, England could continue to assume non-EU international obligations following secession from the UK, thus allowing it to retain the UNSC seat of the UK, membership of the WTO etc., with the rump UK governed from Edinburgh retaining EU membership, whilst becoming a new state for the purpose of every other international agreement. Since this is what Scotland would have to do anyway in the event of independence, plus having to apply to join the EU, this plan works for everyone.
While this is also arguably possible from a legal point of view, it is difficult to imagine the British Government agreeing to it politically. But why not? England retains its international roles, but automatically leaves the EU, which it wants anyway. Scotland gets to stay in the EU, retaining the name of a defunct country (and maybe even being the only country in the UK) with another country’s monarchy and the right to use its currency without being forced to use the Euro involuntarily. The rest would be left up to the negotiators: how much of the EU budget the new UK would contribute, how much of the EU pension pot England would transfer to the UK, how many seats in the European Parliament the UK would have, etc.
In conclusion, if the UK Government makes the withdrawal notification at the end of March 2017, it is theoretically Nicola Sturgeon, not Theresa May, who has a deadline: she will have two years to hold and win the independence referendum, negotiate the secession of England and Wales from the UK and revoke the withdrawal notification. England will then have all the time in the world to negotiate a relationship with the EU.
