Tuesday, February 12, 2013

It's not the Hotel California

The UK government has published specially commissioned legal advice regarding the status of an independent Scotland in terms of EU membership. It finds that such a Scotland would be a new state that would not inherit the legal personality or entitlements of the UK and thus would have to negotiate EU membership from scratch. There's no right to clone treaties. One of the cases that the report uses to buttress its arguments is the creation of the Irish Free State from the UK --

First is specific precedent. The majority of cases in the 20th century demonstrate that continuity of one state rather than dissolution is the norm. Significant examples include the UK/Ireland (1922), British India (1947), Malaysia/Singapore (1965), Pakistan/ Bangladesh (1971–72), Union of Soviet Socialist Republics (USSR) (1990–91), Ethiopia/Eritrea (1993), Serbia/Montenegro (2006) and Sudan/South Sudan (2011). The case of Ireland is the only direct example of the formation of an independent state from a territory within the UK ... A second factor relates to the institutions supporting a new Scottish state and how this would be affected by separation from the UK. Some constitutional background is necessary for an understanding of this important issue. In the UK, the Westminster Parliament is sovereign and the body of law enacted by it forms the basis of the UK’s law and practices. At the time Scottish independence became operative, UK parliamentary sovereignty would continue to apply unchanged in the remainder of the UK. The UK Parliament’s jurisdiction would no longer extend to an independent Scottish state.  The laws passed by the UK Parliament would therefore continue to apply in the remainder of the UK as before, unless they were altered by Parliament itself in the course of enacting Scottish independence. This is what happened when the Irish Free State was formed from within the UK in 1922 (an arrangement that allows Ireland to continue to use some UK legislation to the present day). It would be open to an independent Scottish state to continue to apply some or all of the body of reserved laws passed by the UK Parliament, unless and until the Scottish Parliament decided to repeal them. However, an independent Scottish state could not unilaterally retain functions of UK institutions in relation to Scotland, as discussed below.

The view that the 26 counties had unambiguously checked out of the UK in 1922, with UK parliament legislation applying in the Free State only by choice, is very different from the usual histrionics that surround the more rabble-rousing elements of Irish nationalism. In particular, the grandiose claim of Bertie Ahern and his intellectual enablers that the UK claimed sovereignty over the Irish Republic until 1998 is by this reckoning total rubbish.