Ian Campbell debunked the official UK Government legal analysis that said an independent Scotland would have to reapply to join the EU. Now in a 2016 article he’s convincingly put a case that “the United Kingdom of Great Britain & Northern Ireland could continue as a member of the EU without England & Wales.”

Writing in the Scottish Solicitors’ Journal online: ‘The author argues that in light of the position it took ahead of the 2014 independence referendum, the UK Government in effect made a covenant to advance the cause of Scotland remaining within the EU’.
“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.”
‘2014 revisited: championing Scotland in the EU’, 18 July 2016, by Ian Campbell

“2014 revisited: championing Scotland in the EU” Journal Online of the Law Society of Scotland, July 2016.
http://www.journalonline.co.uk/Magazine/61-7/1021968.aspx

This is really a tour de force. A first rate article. I recommend it generally, but specifically to friends in Gibraltar and Scotland interested in law and politics, in addition to being useful for students of constitutional law.

The only thing I think it misses is directly setting out any quote or specific reference to a UK Government / pro-Union promise on the EU. Of course it was clearly implicit in the explicit official legal analysis that said an independent Scotland would have to reapply to join the EU.

This is exactly the article that I thought was needed; including cross referencing Campbell’s earlier work. His references on the EU and Scotland debate are in the notes, including several articles for the Journal of the Law Society of Scotland, and evidence to the Parliamentary enquiries.

Ian Campbell, selected publications:

Publications on Scotland, the 1707 Union and the EU
a) “From the ‘Personal Union’ between England and Scotland in 1603 to the European Communities Act 1972 and Beyond – Enduring Legal Problems from an Historical Viewpoint”, Jackson and McGoldrick (eds.) Legal Visions of the New Europe (London: Graham and Trotman, 1993) pp. 37-104.
b) “The “State”, the “Crown” and the Union of Scotland and England: Reflections on what might become the Sovereign’s “New Clothes””, Juridical Review (2014)
pp. 165-176.
c) ““The Union and the Law” revisited”, Journal Online of the Law Society of Scotland, July 2014
d) “Dissolving the Union”, Journal Online of the Law Society of Scotland, July 2014
e) “Balancing the Right to Decide” Journal Online of the Law Society of Scotland, December 2014
f) “2014 revisited: championing Scotland in the EU” Journal Online of the Law Society of Scotland, July 2016.
Ian Campbell’s relevant body of work is set out at the end, with occasional explanation from Ian and summaries pulled by me from the publications themselves and our correspondence. A shorter version of this piece, ending immediately above, is published on my LinkedIn profile: https://www.linkedin.com/pulse/scotland-northern-ireland-gibraltar-could-remain-eu-continuing-reid

My political comments are next.

There is no principle constitutionally to prevent parts of the United Kingdom remaining in the European Union, while England and Wales leave. The official UK Government case against a breakaway by Scotland included that an independent Scotland would have to apply again to join the EU. Only by staying in the United Kingdom could EU membership be guaranteed. Now it is argued that a majority of English and Welsh voters must drag Scotland out of the European Union. [And Northern Ireland too]. During the Scottish independence referendum I wrote “Some of the arguments of the No campaign are negative and scaremongering. Others appear only to appeal to financial arguments. And their constitutional law arguments about EU membership have been thoroughly tested if not completely discredited by my good friend former judge and constitutional law expert Ian Campbell.” On re-reading Ian’s work I concluded that the UK Government official case on Scotland and EU membership was wrong. A newly re-independent Scotland would be at least as much a successor to the UK in the European Union as the remainder England, Wales and Northern Ireland.

Now similar lazy constitutional law arguments are being rolled out by Brexiteers, including a few of those educated in constitutional law who should know better. It would take ingenuity, nimble diplomacy and real audacious political thinking – in the UK and mainland Europe’s capitals, but the parts of the UK who, with Gibraltar, voted to remain could be accommodated as continuing members of the EU while the English (and, unfortunately also, Welsh) ‘nations’ left the EU.

I disagree with Scottish independence, I find no good reason for breaking up the union of all people in Great Britain, and certainly not based on invented romantic nationalism and economic rainbow theory. Nationalism and breaking up countries I am convinced by my experience in the Balkans and former Soviet Union is no good way to deal with social, political and international problems, as well as seeing the disaster in South Sudan despite the warnings from similar trajectory in many newly independent states. Twenty six years ago I took a different – almost automatically in favour – view on independence for small countries. As an ex-naive Irish nationalist, still a supporter of self-determination and cultural flourishing, I find it ironic that nationalists and populists in UK have through their hate of the EU pushed the United Kingdom nearer breaking up.

Ian Campbell’s recent body of work on constitutional law, Scotland, independence and membership of the European Union.

http://www.journalonline.co.uk/Magazine/59-7/1014185.aspx
“The Union and the law” revisited
14 JULY 14
Referring to the article of this title by the late Professor Walker, this essay argues that the “rUK continuator” analysis of Scottish independence by Professors Crawford and Boyle is legally and historically unsound
by Ian Campbell

http://www.journalonline.co.uk/Referendum/1014265.aspx
Dissolving the Union
22 JUL 14
Comment on “Scotland’s Constitutional Future 2” and Scotland’s status
by Ian Campbell

Campbell submitted evidence to Parliamentary committees in both Westminster and Edinburgh.

http://www.parliament.scot/S4_EuropeanandExternalRelationsCommittee/Inquiries/01_I_B_Campbell.pdf
To the European and External Relations Committee, Scottish Parliament, January 2014.
Campbell disputes the opinion of Professors James Crawford SC and Alan Boyle in a paper for HM Government, 2013 Opinion: Referendum on the Independence of Scotland – International Law Aspects.

http://www.parliament.uk/documents/lords-committees/constitution/Scottish%20independence/Scottish-Independence-evidence-volume-24-April.pdf [see evidence at pp. 37 – 42 – out of 150 pg document of all the evidence], submitted February 2014
‘Scottish Independence: constitutional implications of the referendum’ House of Lords Select Committee on the Constitution, Inquiry into Scottish Independence: Constitutional Implications for the rest of the UK. Oral and written evidence, published April 2014.

These two sets of written evidence formed the basis for Campbell’s Juridical Review article (2014 pp 165-176) which I encouraged him to write.

The Juridical Review 2014 (3), 165-176 “The ‘State’, the ‘Crown’ and the Union of Scotland and England: Reflections on what might become the Sovereign’s ‘new clothes’”.

This is Scotland’s leading law journal – you may be able to find it in a University library.

In October 2016 Ian Campbell submitted a detailed paper – on the theme of his latest Journal article – to the relevant committee of the Scottish Parliament.
http://www.parliament.scot/General%20Documents/Professor_Ian_Campbell.pdf
European and External Relations Committee ‘The EU referendum and its implications for Scotland’, 8 pg.

Previously, his third article for the Scottish Solicitors on-line journal was concerned with the power to hold referenda:
‘Balancing the right to decide’ 15 December 2014
The case that equality within the Union requires Scotland to have a permanent power to hold a legally binding independence referendum
by Ian Campbell
http://www.journalonline.co.uk/Magazine/59-12/1016739.aspx

which formed the basis for the following written evidence (5 pg):

http://www.parliament.scot/Ian_Campbell.pdf

Scotland Bill
Ian Campbell, Honorary Visiting Professor, School Of Law,
University Of Liverpool
Re: Paragraph 18 of the Smith Commission Report
Introduction
This paper focuses on Paragraph 18 of the Smith Commission Report which is
contained in the Introduction to Chapter 2 of that Report under the heading “Heads
of Agreement: Introduction”. Paragraph 18 reads: “It is agreed that nothing in this
report prevents Scotland becoming an independent country in the future should the
people of Scotland so choose.”