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Scotland and the EU - No.1 ~ Does legal advice exist?
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| Union Street Gardens, Aberdeen |
I have always thought that the best answer to the Scottish Independence question would be for the United Kingdom to continue intact but internally change itself into a Federation. Of course, such a solution is not without problems of its own but the possibility is not recognised by the recent Edinburgh Agreement which will offer the Scottish people a straightforward Yes/No vote on independence.
Previous posts at Scotland - Constitutional Futures Forum 2nd October 2012
A Federal solution might have the potential to avoid a very serious issue which could have massive impact not only on the people of Scotland but also on the people's of the remainder of the U.K. This is the important question of whether Scotland would remain a member of the European Union should independence come about.
Under the Treaty of Accession it was the United Kingdom of Great Britain and Northern Ireland which acceded to the European Communities from 1st January 1973. Great Britain is England, Scotland and Wales.
It does not seem to automatically follow that an independent Scotland would continue as a member state of the European Union - see The Future of Scotland.
Freedom of Information request and decision:
The precise legal position is not crystal clear and a Member of the Scottish Parliament (Catherine Stihler MEP) applied to the Scottish Information Commissioner (Rosemary Agnew) to seek confirmation whether or not the Scottish government had sought legal advice on the question of EU membership in the event of independence coming about. On 6th July 2012 the Commissioner issued decision notice 111/2012 "Legal Advice: Scotland's membership of the EU."
In May 2011, Ms Stihler asked the Scottish Ministers (the Ministers) whether they had taken legal advice on the status of Scotland within the European Union (EU) should Scotland choose to break away from the United Kingdom and, if so, whether she could be provided with a copy. However, the Ministers refused to reveal whether they had such legal advice. Following a review, Ms Stihler remained dissatisfied and applied to the Commissioner for a decision. The Commissioner found that the Ministers had failed to deal with Ms Stihler’s request for information in accordance with Part 1 of [Freedom of Information (Scotland) Act 2002], by failing to reveal whether, as at the date they received her request, the legal advice existed or was held by them. If the information exists or is held, she required the Ministers to either provide the information to Ms Stihler or to issue a refusal notice, in terms of section 16 of FOISA, explaining why it is judged to be exempt from disclosure. If the information does not exist or is not held, she required the Ministers to notify Ms Stihler, in terms of section 17 of FOISA, that they do not hold the information.
The Commissioner found that the Scottish Ministers (the Ministers) failed to comply with Part 1 of the Freedom of Information (Scotland) Act 2002 (FOISA) in responding to the information request made by Ms Stihler. The Commissioner has found that the Ministers were not entitled to refuse to reveal, in terms of section 18(1) of FOISA, whether the legal advice in question exists or is held by them. The Commissioner therefore requires the Ministers to reveal to Ms Stihler whether the legal advice she requested existed or was held by them when they received her request. If the information was held, she requires the Ministers either to provide that information to Ms Stihler, or to issue a refusal notice in line with the requirements of section 16 of FOISA. If the information was not held, she requires the Ministers to issue a notice in line with the requirements of section 17 of FOISA.
For now, the matter rests there since an appeal - on points of law - is possible to the Court of Session. Scotland's First Minister has indicated that it will be next year before the position regarding the EU is set out - Herald Scotland 13th September 2012.
Serious Questions ~ few answers:
Would a federation enable the EU question to be avoided?
Would an independent Scotland have to apply for EU membership?
What are the implications for what remains of the UK following Scottish independence?
An interesting article is Professor Neil Walker's "Beyond the black and white of legal advice"
Doubtless, subjects to which we shall return.
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| Union Street Aberdeen, 1964 |
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