The final two articles in this mini-series cover probably the most constitutionally important elements.
I start with a look at the legal system as a whole. This includes the type of legal jurisdiction (with pros and cons), what would happen to existing laws (domestic and international) and a look a the pros and cons of codifying Welsh law.
Part IV(b) looks at how the law could be administered politically after independence (Attorney General, role of the Senedd etc.).
Here’s where things get a little bit more complicated.
There was some level of discussion about the international law implications of Scottish independence in the run-up to the 2014 referendum. There was an agreed principle that the rest of the UK (or more likely in Wales’ case, England) would be considered the “successor state” to the UK (because it makes up the bulk of the former UK’s territory and population) and would automatically assume all of the international obligations the UK signed up to2.
This principle was accepted for Russia following the collapse of the Soviet Union (because Russia made up most of the USSR) but rejected for Serbia following the collapse of Yugoslavia (because most of the state dissolved in terms of landmass and population).
Based on these and other precedents, you would assume the international community would accept the principle of England being the successor state to the UK. England, therefore, wouldn’t need to do anything concerning treaties, agreements etc. and would take on the UK’s seat on international organisations.
Wales would need to start from scratch, but that isn’t necessarily a bad thing. Joining international organisations like the UN, World Trade Organisation, World Bank etc. and signing some of the major treaties the UK signed up to (like the European Convention on Human Rights) isn’t difficult.
The EU membership question – which played a big role in the 2014 “No” campaign in Scotland (“staying in the UK guarantees EU membership” – ho, ho) – obviously doesn’t matter now.
I’ve addressed some of this in the link above but taken together, and based on a legal briefing from Herbert Smith Freehills in April 20213, the situation for an independent Wales would likely be:
- Treaties that are already connected to Welsh territory in some way would automatically apply to Wales after independence (I don’t know if any such treaties exist).
- Wales would be able to unilaterally “add our name” to the list of signatories to international treaties which are legal in nature (i.e. human rights, environmental agreements) by lodging a request with the depository of the treaty.
- Wales would have to negotiate membership of international organisations or multilateral treaties in our own right; we wouldn’t “inherit a seat” from the UK (which would likely go to England as the recognised successor state).
- If Wales wanted to “copy and paste” bilateral treaties the UK has signed (this could potentially include the 2020 Brexit Withdrawal Agreement), it would require the approval of, or re-negotiation with, the other party.
2: House of Lords Select Committee on the Constitution, (May 2014), Scottish independence: constitutional implications of the referendum, Chapter 2, The UK as a continuator state.
3: Cannon A, Ambrose H, (April 2021). Scottish Independence: The International Law Implications. Available at: https://www.herbertsmithfreehills.com/latest-thinking/scottish-independence-the-international-law-implications
