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Competition Law

Analysis - debate - current awareness

Field Fisher Waterhouse , 12 SEP 2014


John Cassels


As a proud Scotsman living in London, unfortunately I don't get a vote in the referendum on breaking up the UK which will take place on 18 September. The key legal issues to bear in mind are the following:

  • Whatever the result, nothing stays the same. If it's a YES vote, then we enter a transitional period with the Scottish Nationalists having set a target date for independence of 26 March 2016. If it's a NO vote, then there will be a transfer of further powers to the Scottish Parliament ('devo-max'). If that happens, I can't see that the constitutional settlement for the rest of the UK will remain unchanged. 
  • If it's a YES vote, in the short term, Scotland would remain a member of the EU for so long as it remained part of the UK. It is unclear whether it would become a new member in its own right at the same moment it becomes independent. Membership of the EU, certainly in the short-medium term is not a foregone conclusion. If does not become a member at the same moment it becomes independent, then it will be outside the EU and free movement, parallel import and other EU principles will not apply. 
  • Scottish lawyers would not be able to give privileged legal advice in EU proceedings and EU mutual recognition provisions would not apply. 
  • The rest of the UK is likely to be a continuator state, which means that it would retain all of its current treaty obligations and memberships of international organisations. 
  • Fixed or immoveable assets (such as government or military buildings) will automatically become assets of the state in which they are located. Other moveable assets (wherever they are situated) and liabilities would be subject to apportionment by negotiation.
  • RBS, Lloyds, Clydesdale Bank, TSB and a number of other financial institutions have indicated that they will relocate HQ and/or substantial operations from Scotland to England in the event of a YES vote. There is already pressure to change the UK Companies Act to make it possible to change the country of incorporation and registered office of companies from Scotland to England. 
If you are interested in these issues, please do not hesitate to contact John Cassels at john.cassels@fieldfisher.com

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