Scottish independence, EU membership, legal advice and negotiations

There’s news that the UK Government has obtained legal advice is that an independent Scotland would not automatically be a member of the EU, but would need to apply for membership.  See The Firm’s report here, and the Telegraph here.  This follows an earlier row in the summer about the (non-) disclosure of the Scottish Government’s advice on the issue.  That the UK has sought advice, or that that is the advice it has received, is not a surprise.  The issue has been debated for a long time (I remember an iteration of it in 1993).  The issue is not whether an independent Scotland would satisfy the EU’s criteria for membership, but whether it could become a member on the first day of independence.  That the UK Government takes the view it doesn’t is important for two reasons.

First, it indicates a major problem for the SNP’s political strategy to secure independence.  The ease of the transition to an independent state depends heavily on the extent to which UK is willing to co-operate with the process.  That co-operation might, in principle, include helping Scotland to secure EU membership.  The harder line from Whitehall is not surprising, and suggests that the UK Government is not prepared to acquiesce in smoothing the SNP’s path.  The rougher the ride from a referendum Yes vote to statehood – and the more clearly the roughness of that ride is spelled out – the harder it will be for the SNP to secure a Yes vote in a referendum.   EU membership is not the only likely ‘wicked issue’ in independence negotiations, and the tougher the UK signals its approach will be on those issues, the greater the difficulties for the SNP.

Of course, this approach is not risk-free for the UK Government either.  The SNP’s argument since May 2011 has been based on the strength of the mandate it has from the Scottish electorate, to hold a referendum and then move to independence if that is the voters’ choice.  Its authority is based on the strength of its support and the belief that Scottish voters see it as ‘their’ government, while the UK Government is something other.  (Unionist Scottish politicians have of course resisted that claim, more actively so in recent weeks, though it’s a problematic argument for Labour as it means endorsing the authority of the Conservative-Lib Dem Coalition.)   A UK hard line means that it’s vulnerable to claims of disregarding the preferred choice of Scottish voters, before they’ve had the chance to cast a referendum ballot.   But no option is risk-free for UK at this point.

Second, if independent Scotland is not an EU member from day 1, the complexity of independence negotiations increases hugely.  A large number of important and difficult issues about Scotland-UK relations – for example, relating to personal mobility, the right of Scottish citizens to use the English NHS, recognition of professional and academic qualifications, or for Scottish manufacturers or producers of food products to sell them on rump-UK markets – would be quickly and neatly resolved if Scotland were an EU member.  If it were not, these would have to be separately negotiated and resolved, as happened with Ireland after 1922.  Adding this to the negotiations will add to the time needed for their negotiations, their complexity, and the possibility of overall a less satisfactory outcome from a Scottish point of view.

What’s interesting about this legal advice is not the opinion itself.  We don’t even know whether it’s from the Attorney General or Advocate General (the UK Government’s law officers, and politicians as well as lawyers), the Treasury Solicitor (its most senior lawyer-civil servant), Foreign  & Commonwealth Office lawyers (the experts on issues of international law), or outside counsel.  It’s the timing of its disclosure, and what that implies.  One wouldn’t expect the run-up to a referendum to be a smooth course; the ride will get much bumpier yet.

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14 Comments

Filed under Courts and legal issues, EU issues, Referendums, Scotland, SNP

14 responses to “Scottish independence, EU membership, legal advice and negotiations

  1. Surely refusing to co-operate fully with a Scotland which had become independent following a properly conducted referendum, would leave England (and Wales) looking small, petty and ridiculous in the eyes of the rest of the EU, and indeed of the world?

    • And short of oil, electricity as they rely on Scotland far more than we do them.

      Would these legal advisers be the same ones that tried to convince the Americans that their Independence wasn’t legal?

      • British consumers do not buy Scottish oil, they might buy Texaco or BP, as for electricity it is much the same, different companies.

        As for the war of independence, the rebel army had the same friends as the “old alliance”, the French …

  2. Wascowy Wabbit

    Is it for sure that what remains of the UK would automatically be an EU member? I can’t see in reality that it wouldn’t. Also, this isn’t just an insular UK issue – would small EU neighbours stand by and make it difficult for Scotland? I can’t see that either. Pressure from elsewhere on the rump UK can’t be ruled out.

  3. Angus McLellan

    Why would anyone ask a lawyer, or even a gaggle of lawyers, about the hypothetical reaction of EU governments to Scottish independence? You might as well ask a plumber about particle physics. International relations are governed by expedience, self-interest and a desire not to be seen as obviously in the wrong, but not necessarily in that order.

    If is certainly possible to believe, perhaps even to sincerely believe that the EU would treat a newly independent Scotland as if it were Switzerland or Belarus, but …

    You’d also have to believe that EU governments would sacrifice the interests of the countless businesses who trade with Scotland on the altar of legalism. And this is not even “real” law but international law, which is more like a New Year’s resolution in terms of enforceability. That in the same cause they would ignore the interests of the thousands – tens of thousands – of EU citizens who live in Scotland on the basis of EU membership. And that they would ignore EU fishermen who today fish in Scottish waters would find themselves without a livelihood and those who have purchased – at considerable expense – CFP quotaes so as to fish in those same waters would find themselves doubly out of pocket. And that the EU would be unconcerned to “lose” territory in Europe for the first time ever. And that no one would fear that a Scotland which was so clearly rejected might choose never to join the EU. And that the EU’s finances are so sound that a net contributor would be turned away.

    If you can believe these things and more, and you may well do so for governments do not always act in their own best interests, then you will find it entirely plausible that Scotland would not succeed automatically to EU membership. If, on the other hand, you find it impossible to suspend disbelief to such a degree, you – like me – will be quite sure than some blatant fudge of debatable legality would be found to resolve the problem.

  4. If the UK Government publishes this advice without telling us who gave it, it’s probably safe to bet that it’s merely the opinion of one of their own ministers (Tory Dominic Grieve is Attorney General for “EnglandandWales” and LibDem Jim Wallace is Advocate General for Scotland) and therefore hardly a surprise and of no great importance at all.

    Whatever happens, Scotland would not become independent immediately after a Yes vote in the referendum. There would be a period of negotiation between the respective governments on the split of assets and liabilities, which I think will take at least a year and maybe a bit longer. So if Scotland votes Yes in autumn 2014 (that’s my best guess, both for the date and the result) it will probably become formally independent on 1 January 2016. This will give plenty of time for both Scotland and the RUK to renegotiate their terms of EU membership.

    If the RUK doesn’t think it will need to renegotiate its terms of membership, everybody else will be more than happy for it to continue paying the same contribution as it does now, rather than a smaller contribution based on a smaller population. So of course the RUK will renegotiate. If it tries to play hard ball, it will damage itself.

    So this news today is nothing more than bluster from a UK government that doesn’t want Scotland to be independent.

  5. Dru

    If an EU member splits into two, I would have thought that either both remain members unless they secede from the EU, or neither does and both reapply. I would have thought the former, but the answer must lie in the rules of the EU, not the way dissolution of the union was implemented. So if an independent Scotland is not automatically still an EU member, nor is the rump of England and Wales + whatever happens to Northern Ireland at that point.

    If the UK government were correct, and eurosceptic English Tories are bright enough to spot this, they should be campaigning for Scottish independence. What the day to day implications for commercial activity in Britain would be of an independent Scotland that had rejoined – as it would be almost bound to do – , and an independent rump England and Wales that had let its membership lapse one dreads to think.

    • Angus McLellan

      To add one last point, the subject of the EU was covered by interviewer Derek Bateman and Professor Michael Keating on BBC Radio Scotland’s Newsweek Scotland this morning. At about 24:00 in Keating makes the claim that “there would be absolutely no question of taking Scotland out of the Single Market”. So, much ado about nothing if Keating is to be taken seriously,

  6. Paul

    @Dru

    You are forgetting the concept of ‘Successor State’ which allows one part of the former state to take on the rights and responsibilities of the former state.

    (Eg after the Algerian war of independence France remained a part of the EC whilst Algeria did not)

    It is unthinkable that Scotland would be the designated successor state and although Angus McLellan does raise an interesting point he should remember that some member states, such as Spain and Belgium, are fighting against secessionist movements so would not be likely to seek to smooth Scottish entry into the EU (apart from the waiving of some negotiation chapters due to Scotland’s status as already having most [Scotland would lose the UK optouts and, provided entry requirements remain the same, be required to prepare for entry to the Euro ASAP] of the Acquis Communitaire in effect).

    Given that the EU exists between states, rather than peoples, a new treaty would have to be entered into between the EU [given legal personality in the Lisbon Treaty] and Scotland. I can’t currently recall the specifics, but I imagine that such a treaty would require unanimous consent from all existing member-states.

    • Angus McLellan

      Scotland’s independence would make no difference to Belgium since the main glue holding Belgium together is not “unionism” but rather the problem of competing and irreconcilable claims over Brussels. Spain is often suggested as being the obvious objector, but among the obvious European losers from Scotland being outwith the EU would be Basque and Galician fishermen. A rational government in Madrid would have to consider the impact on Basque and Galician nationalism of opposing Scottish succession. To purposefully damage the Basque economy, supposedly in order to reduce Basque nationalism, does not seem like the most logical of policies. Various other countries have been mentioned on occasion. Romania, for example, presumably on the basis that Transylvania is a problem. But most of these concern national claims to territory, or minorities who wish to be in another country. Scottish independence is not relevant to these as it involves simple secession and no third country.

      As for the Euro, your assessment is widely shared, but it is contradicted by the facts of Sweden’s experience – still not a member over a decade after signing the acquis – and by the views being expressed by the Czech government and president.

      Your view of the EU response is based on sound logic but the problems involved for Europe in following such a route are clear. Expedience usually trumps logic but it is impossible to know how the EU might fudge things. I think that the least difficult route would be for the problem to be redefined.

      Since membership of the EU does not seem to be essential for most purposes of trade and travel, amending the European Economic Area agreements to include Scotland could provide the EU with the necessary room for manoeuvre. An example of one element of the agreement extending the EEA to include Liechtenstein and exclude Switzerland can be seen here. I am not a lawyer of any sort, but to my uneducated eye this also looks to be much closer to the type of treaty to which succession might be argued as automatic under the relevant Vienna convention.

      There are other points to be made about succession, not least regarding the UK government’s apparent belief that recent precedents – the Czech Republic and the USSR – and the unratified 1983 Vienna Convention on State Property are of no relevance. The UK government seems to take the view that rUK/England would be the successor in the same way that Russia was the USSR’s successor, but that the division of debts and property should not take place following the Russian example but instead following the Czechoslovakian one instead, which is to say as if two new states were being created. The 1983 convention clearly distinguished these two cases. So it may not only be Scots who face unexpected diplomatic challenges as the UK government appears intent upon acting in a way that would seem to undermine Westminster’s claims to succession.

  7. MN

    If Scotland becomes an independent sovereign state, then what would the new “Rest of the UK” state (England, Wales, Northern Ireland) be called?

    • Angus McLellan

      Is there something wrong with “the United Kingdom of England, Wales and Northern Ireland” which is obvious to everyone but me?

  8. Pingback: Scottish independence referendum developments « Devolution Matters

  9. christina

    Are people in Scotland voting SNP because they want a referendum on independence – or are they voting SNP because they don’t want to vote New Labour or Conservative?

    We seek to be cradled in the arms of the EU as that institution itself is crumbling before our eyes?

    Who leads the EU?

    Who are the power brokers – the decision makers?

    What do our EU reps actually do? (Other than collect lucrative expenses from an unaudited body?)

    Is the EU more democratic than the Westminster government?

    Would Scotland be jumping from the frying pan into the fire?

    Why can’t we emulate Switzerland?

    Will Scotland end it’s dynastic political system?

    Will it remove those from public office who have been in those positions for so long they wear their slippers to work? (Think Glasgow’s Ian Angus Drummond)

    Will it engage its people?

    Will it motivate its people?

    Will it deal with the social problems that have been ignored for generations?

    I’ve got a few more questions – okay – lots more questions – but I would appreciate answers to some of these first before I can even begin to form a view on this matter.

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