House of Commons - Foreign policy considerations for the UK and Scotland in the event of Scotland becoming an independent country

Foreign policy considerations for the UK and Scotland in the event of Scotland becoming an independent country - Foreign Affairs Committee Contents

2 Scotland and the RUK: who would inherit what and who would decide?

WHY DOES IT MATTER?

7. In the months since we launched our inquiry, the international legal aspects of Scottish independence have come to the fore. Ongoing discussions about Scotland's EU membership as well as the UK Government's publication of an independent legal opinion on international aspects of independence have propelled legal issues further up the independence agenda.[3] Although these matters can appear technical and abstract, in reality they raise important practical consequences for individuals, businesses and affected Governments alike. Professor Matthew Craven, Professor of International Law and Dean of the Faculty of Law and Social Sciences, SOAS, explained that the range of issues that come into play include not only relations with other countries, but also membership of international institutions, title to ownership of public property both at home and abroad (including consulates and embassies and currency deposits), liability for the national debt (to both public and private agencies), the survival of public contracts (such as rail franchises), and questions of nationality. He added that:

much of what might look like a matter of purely local political or economic negotiation - for example whether an independent Scotland might acquire responsibility for armed forces installations in Scotland or for fulfilment of the terms of concession agreements with oil producers - is likely to have international implications in the sense that it is liable to affect the rights and obligations of other states in the international community.[4]

It follows that in the event of a 'yes' vote in the 2014 referendum, clarity would be required as to which international rights, treaty obligations and membership of international organisations the RUK and Scotland might inherit, gain or even lose. It would be a complex process, as we discuss below.

Multilateral and bilateral treaties

8. The UK is currently party to nearly 14,000 treaties (approximately 10,000 of these are bilateral while the remainder are multilateral).[5] They cover subjects from the critical to the mundane, and as diverse as extradition, double taxation arrangements, investment, trade, defence, fishing, navigation, air transport, enforcement of judgments, carriage of goods, trademarks, broadcasting and even postal delivery.

9. In the event of Scottish independence, in a limited number of cases either the facts of the agreement or simple geography might be enough to determine whether it would fall to Scotland or the RUK to take on (or retain) a particular international obligation or treaty commitment. For instance, the treaty between the UK and France concerning the Channel Tunnel would engage the RUK not Scotland whereas an existing treaty obligation in relation to foreign shipping off the north coast of Scotland would more sensibly fall to Scotland. Other similarly geographically or thematically narrow treaties or matters may be assigned clearly to one state or the other. There would also be agreements which would cover only bilateral issues between Scotland and the RUK and which, in theory, could be settled by the agreement of the parties without any reference to international law.

10. Inevitably, however, occasions would arise where there was a lack of bilateral agreement or where third party interests were involved; where this occurred, a way of managing changes to the complex international legal and political environment within which the United Kingdom is currently enmeshed would need to be found.[6] In the course of our inquiry we explored three different scenarios for dealing with the consequences of Scotland becoming an independent country, each of which would give rise to different international outcomes for Scotland and the RUK in terms of their treaty commitments. These are summarised and discussed below.

CONCEPTUALISING THE BREAK-UP

11. There are three ways that the constitutional and consensual break-up of the UK could be regarded internationally.

Continuation and secession

The existing state (UK) would break into separate entities - "Scotland" and "the RUK". The larger, more populous entity (RUK) would become the 'continuing' state. The smaller entity (Scotland) that wished to leave would secede and become a new state and would (somewhat confusingly) be known as a 'successor' state. The continuing state (the RUK) would inherit the vast majority of the rights and obligations of the UK whereas the successor state (Scotland) would essentially start anew internationally.

Separation

The existing entity (the UK) would break into two states (the RUK and Scotland) and each would resume their pre-1707 Union status. This would involve a 'disaggregation' or 'splitting' of pooled sovereignty so that Scotland and RUK would each maintain all existing legal relationships as far as was possible given the changed situation.[7] This is sometimes also referred as 'the co-equal states' scenario.

Dissolution

The existing entity (the UK) would dissolve and become extinct. Two new states would come into being (the RUK and Scotland) but neither new state would lay claim to the legal personality of the UK which would have ceased to exist. It would essentially amount to a clean international slate for both states.

SCOTTISH AND UK GOVERNMENT VIEWS ON STATE SUCCESSION

12. Of the three scenarios outlined above, only the first two (the continuation and separation models, respectively) have been relied upon by the UK and Scottish Governments. The third option, dissolution, was not considered to be relevant to the situation under consideration by either witnesses to the inquiry or by other legal experts.[8]

13. The UK Government argues that the continuation and secession model would apply in the event of independence, a stance which the FCO states is based on a combination of official legal advice, international law, international precedent and evidence submitted to our inquiry,[9] and which it believes is reinforced by practical considerations such as the existence of an unchanged form of government and continued possession of the majority of the territory and population of the old state. The position is also in line with the generally recognised principle of international law that the principal part of a state is generally considered to be the 'continuing state' of the larger state that has split.[10] Essentially, in the event of a 'yes' vote, it would mean that the RUK would inherit the vast majority of the UK's treaty rights and obligations, while Scotland would become a new state.

14. This view has not found favour with the Scottish Government. Indeed, the idea that the UK would be considered to be the continuing state in the event of a break-up was described by the Deputy First Minister of Scotland, Nicola Sturgeon MSP, as "an incredibly arrogant attitude for the UK Government to take [...] somehow they keep all the rights of the UK and Scotland gets nothing". Ms Sturgeon added that "this rather shatters the suggestion that Scotland is an equal partner within the UK at the moment".[11]

15. The Scottish Government has not issued a definitive view on this issue and indeed the Deputy First Minister confirmed in oral evidence that it had not sought official legal advice as to what position Scotland might find itself in.[12] Yet, given the many official Scottish Government statements which state that Scotland would 'inherit' various international rights and obligations, most observers conclude that the Scottish Government would seek to argue that Scotland is a co-equal successor state, as per the 'separation' model outlined above.[13] The Deputy First Minister told us that the idea that Scotland would inherit various treaty obligations is "a reasonable position to articulate".[14]

16. Professor Craven explained that:

Being a 'successor state' does not automatically entitle the party concerned to continue existing arrangements by way of 'inheritance' (and hence the terminology is deeply misleading). In fact the initial assumption is generally the opposite - that no legal rights and obligations continue unless, and to the extent, one can reach for a rule that specifies their continuance.[15]

With the exception of the Scottish Government, all our witnesses concluded that the RUK would be the continuing state while Scotland would start afresh internationally. The evidence they provided can be read in full at the end of this Report, but by way of example, Professor Hazell, Director, Constitution Unit, University College London, typified the views of many witnesses when he said that he found it "hard to conceive of circumstances other than those in which the rest of the UK would assert quite strongly that it was the continuing state" and that "the rest of the international community would readily acknowledge that the rest of the UK was a continuing state because that would create much greater political stability and in general make their lives easier."[16]

17. Not only did witnesses concur with the UK Government's reasoning that this was a position supported by international law and practice, they also explained why, in practice, separation into two co-equal states was not a realistic option. Essentially although it would provide a sense of equity for Scotland, it was put to us by legal and constitutional specialists that "after 300 years the status quo ante could no longer be restored" and that "the repeal of the Acts of Union 1707 would not (contrary to what is sometimes assumed) see the re-emergence of the old Kingdoms of England and Scotland" on a co-equal basis.[17]

18. From an international legal perspective, we were told that a number of adverse political, technical and legal consequences could arise under the 'separation' model. For instance, Professor Craven argued that thousands of the UK's bilateral agreements could "scarcely be continued" by both an independent Scotland and the RUK without the consent of the other parties and as a result, treaties on a vast range of issues could require re-negotiation.[18] Also, where the UK was construed to have 'disappeared', this could have profound implications for key multilateral treaty regimes, such as the Nuclear Non Proliferation Treaty (NPT), the cornerstone of arms control law, under which the UK is a designated nuclear weapons state. Alternatively, the RUK might be forced to forgo possession of nuclear weapons and adhere to the NPT as a non-nuclear weapons state.[19] Such a development would amount to a fundamental and involuntary recalibration of the UK's foreign policy posture and could have international implications as well as an impact on the UK's overall negotiating position on independence.

19. Professor Craven anticipated that the extent of legal uncertainty that would be caused if the separation model was adhered to could have a "significant dampening effect upon international commerce until such a time in which the legal landscape was clarified" and that the "the scale of potential economic and political disruption that might ensue should not be underestimated".[20] There would also be implications within international organisations, as we discuss below (see the discussion starting at Paragraph 27).

SUCCESSION DISPUTES: THE IMPORTANCE OF INTERNATIONAL PRACTICE AND PRECEDENT

20. In the event that the RUK and Scotland continued to disagree over who would inherit what, there are on the face of it only a few formal codified rules of international law that govern such events. The two multilateral agreements that formally address the question of state succession have limited international support and in any event, the UK is not a party to, and is therefore not bound by, either.[21] In the absence of relevant treaty law the Deputy First Minister told us that "these things [would be] settled not by reference to law but by reference to political discussion and negotiation", bilaterally with the RUK.[22] This assessment, according to the evidence we received, is only correct to a point. Witnesses told us that the views of the international community would also play a crucial role in determining the ultimate outcome. As Dr Jo Murkens of the London School of Economics noted, statehood "needs not only to be claimed, it also needs to be recognised". Under international law "it is not enough simply to assert a position; it also has to be accepted by the other constituent parts and by the international community".[23] Likewise, Professor Craven stated that "these are not things that may be determined by Scotland and the RUK alone. At best, the negotiating parties can propose a set of solutions to other members of the international community".[24]

WHAT SCENARIO WOULD THE INTERNATIONAL COMMUNITY SUPPORT?

21. According to the evidence we received, the primary concern for the international community would be to ensure that the division of the UK did not become a problem for the wider international community or lead to significant legal uncertainty, in the way that separation processes in other parts of the world have done in the past.[25] We were also told that the best way of anticipating how states would react was to look at their past practice given that precedent would amount to a significant factor in their calculations.

22. With the exception of the Scottish Government, witnesses were strongly of the view that precedent and principle would favour the RUK as the continuing state as it had done in the past in other similar situations. In particular, witnesses referred repeatedly to parallels between the RUK and Russia, which became the continuing state after the break-up of the USSR, and inherited many of its treaty rights and obligations. Witnesses also justified their views in part by referring to the case of the separation of the Irish Free State from the United Kingdom in 1922 which did not affect the status of the UK under general international law, though the state was reduced in territory and population, and changed formally from the United Kingdom of Great Britain and Ireland to the United Kingdom of Great Britain and Northern Ireland.[26] Dr Murkens and Professor Hazell's written evidence noted that "if Ireland's secession did not dissolve the United Kingdom, why would an independent Scotland have that effect?"[27]

23. In contrast, the Deputy First Minister argued that "precedent would lead you in different directions".[28] She reasoned that Czechoslovakia's break-up showed that there was precedent for the international community to support the idea of co-equal states. However, other witnesses were sceptical that the dissolution of Czechoslovakia amounted to a precedent that was relevant to the RUK/ Scotland situation. Dr Murkens noted that:

the dissolution of [Czechoslovakia] followed attempts to save the federation. When that position became untenable and the decision was taken to dissolve the federation, a number of agreements had to be concluded to govern future relations between the two states. They included agreements to protect equally the rights of the other's citizens and to permit the free movement of people; to coordinate foreign policies and embassies; to form a customs union (since neither state was a member of the EU at the time); and to continue a joint defence system.

I would stress two issues. First, these were not federal agreements that linked the two states, but treaties governed by international law that applied on an interstate basis. Second, they were the outcome of consensual negotiations that led to the 'velvet divorce'. Applied to Scotland, I would ask: is it conceivable that 'reasonable and consensual negotiation with the rest of the UK ... would resolve these matters' [...] Would RUK agree [...] to a dissolution? (If it is not a consensual dissolution, then how exactly would the demise of the UK be brought about?)[29]

24. Support for the applicability of the 'continuation and secession' scenario was not confined to our witnesses. It was also the conclusion of Professors James Crawford and Alan Boyle, who authored an authoritative legal opinion on the international legal aspects of the referendum on the independence of Scotland, which was published by the UK Government shortly after the conclusion of our evidence-taking.[30]

25. Despite some proclamations to the contrary, it is not in the gift of either Scottish or UK politicians to determine unilaterally which state would inherit particular international rights and obligations in the event of Scottish independence. Where agreement could be found between Scotland and the RUK or where third parties raised no objections, there would be no need for recourse to international law. However, in the absence of such agreement, international law in the form of precedent, practice and the views of the international community would ultimately determine which state inherited which treaty obligations. A process which afforded both the RUK and Scotland co-equal status may at first glance seem to have the benefit of equity, but evidence suggests that in practice it would be likely to lead to a degree of legal uncertainty that the international community would not tolerate.

26. There is an overwhelming body of evidence that endorses the UK Government's view that the RUK would be considered by the international community to be the continuing state and that it would inherit the vast majority of the UK's treaty obligations, while Scotland would essentially start afresh at an international level.

Membership of key international organisations

27. In addition to the thousands of subject-based treaties the UK is party to, it is also a member of several hundred international organisations. While Scotland may not necessarily wish to seek membership of all of them, there are a number of bodies which Scotland would almost certainly want to join, for instance, the Council of Europe, the Organisation for Security and Co-operation in Europe (OSCE), the Organisation for Economic Co-operation and Development (OECD), the International Monetary Fund (IMF), the World Trade Organisation (WTO), the Commonwealth and Interpol, to name but a handful.

28. The rules of state succession to treaties generally do not apply to membership of international organisations; instead, membership depends on the particular rules and practices of the organisation.[31] Below, we consider the membership prospects for both the RUK and Scotland in respect of the United Nations, NATO and the EU.

THE UNITED NATIONS

29. Membership of the United Nations would be vital for both the RUK and Scotland. For the RUK, it would allow it to continue to pursue a wide range of foreign policy goals, in particular through permanent membership of the Security Council. For Scotland, it would provide access to the wider trappings of statehood and open the way for it to join a number of UN bodies and organisations that enable states to operate internationally not just on matters of high politics but in more mundane areas, too. For example, membership of the International Telecommunication Union (ITU) would allow Scotland to obtain its own telephone dialling code while membership of the Universal Postal Union (UPU) would allow Scotland to cooperate with other postal sectors.[32]

30. Professor Nigel White, Professor of Public International Law and a specialist in UN Law at the University of Nottingham, explained that there is consistent and accepted practice, amounting to a rule of international law[33] to suggest that within the UN "when a relatively smaller part of an existing state breaks off and claims statehood, the remaining state (whose governmental organisation, remaining territory and population, are otherwise largely unaffected) is entitled to continue the old state's membership, whereas the seceding state has to apply for membership". Professor White reasoned that:

This line of practice would support the continuation in UN membership from the old UK (including Scotland) to the new UK (absent Scotland). This line can be distinguished from other precedents such as the consensual break up of Czechoslovakia in December 1992, where that state ceased to exist legally and factually, and the two newly emergent Czech and Slovak Republics applied afresh for UN membership.[34]

31. Dr James Ker-Lindsay, Senior Research Fellow, London School of Economics and Political Science, stated that "one would assume" that Scotland would be willing to relinquish any and all claims to the UK's Security Council seat as part of a negotiated separation.[35] If it also supported the RUK's claim to be the continuing state, its application as a new state would only require a short resolution of the General Assembly on the recommendation of the Security Council.[36] However, in the event that the Scottish Government continued to assert that Scotland was a co-equal state, significant consequences for the RUK and for the broader international community could arise. According to Professor Craven, there would need to be an immediate wholesale review of Security Council membership with no guarantee that either Scotland or RUK would be one of the permanent members. There could also be "consequences for the UN as a whole as well as for international policing operations undertaken under the [UN] Charter".[37]

32. While witnesses were clear that the legal case for continued RUK membership of the UN appears strong, some evidence suggested certain states could seek to use Scottish independence to open up the vexed issue of permanent UN Security Council (UNSC) reform, in the process raising questions about the RUK's claim on the UK's permanent seat. Professor White suggested that countries such as India, Brazil, Nigeria, South Africa and Egypt (all aspiring to permanent membership along with Germany and Japan) might regard the RUK's attempt to retain the UK's permanent seat as a "step too far to preserve an outdated status quo", triggering a "groundswell within the UN membership [...] for wider UN reform".[38] Professor Chalmers made a similar point when he told us that if a diminished UK retained its permanent membership of the UNSC, along with France, "in the long run it increases the perception that this is not a representative body and needs change".[39] Professor White argued that it would be "very difficult for the UK to resist change if it were to be isolated with the vast majority of member states pushing for a change to the permanent membership".[40] Such a development would have a significant impact on the RUK's foreign policy goals and the influence it could bring to bear in pursuing them.

33. The FCO does not regard the loss of its 'P5' status as a realistic possibility in the short term. It argued that Article 23 of the UN Charter, which lists the five permanent members of the UNSC (including the UK), could only be altered with its agreement.[41] Practically speaking, it would also be able to take on the UK's obligations under the Nuclear Non Proliferation Treaty, providing a degree of arms control continuity that would be much valued by the international community and other P5 members.[42]

34. It is also likely that support would be forthcoming from key allies, including France and the USA, which would have a strong interest in continuing RUK participation.[43] Managing the situation politically and diplomatically would be, according to Professor White, the RUK's main challenge. This would involve securing the support of Scotland, other permanent members, key reform-minded states and, to some extent, expected adversaries who might otherwise seek to exploit the opportunity to pursue wider reform or cause trouble for the RUK.[44]

35. We conclude that the RUK would retain the UK's permanent seat in the UN Security Council. If an independent Scotland supported the RUK's position as the continuing state, Scotland's application for UN membership would in all likelihood be swift and unproblematic.

NATO

36. The FCO's claim that the RUK would inherit the UK's seat in NATO was not questioned in evidence we received. Some witnesses did, however, dispute the Scottish Government's claims that Scotland would inherit its treaty obligations with NATO, that membership would be automatic and that Scotland would be in a position unilaterally to shape the terms of its membership, particularly in relation to nuclear weapons. As a multilateral organisation and alliance, NATO membership is determined according to the provisions contained within its founding treaty.[45] In line with this, Sir Jeremy Greenstock, former British Ambassador to the UN, observed that "[Scotland] would be a new entity as far as NATO was concerned, and there would have to be discussion and probably a treaty arrangement for it to remain, as Scotland, a member of NATO".[46] Equally, Professor Malcolm Chalmers, Director of Research, the Royal United Services Institute, noted that "the issue of inheriting membership of NATO is the same sort of question as inheriting membership of the EU, the UN or any other international organisation. [...] A new member state of NATO could not come into being without the agreement of the existing members of that alliance".[47]

37. As part of this process, Scotland would be obliged to meet certain requirements and complete a multi-step process involving political dialogue, military integration and ultimately a positive decision in favour of membership by the North Atlantic Council, which would include the RUK.[48] There was a general consensus among witnesses that it would be in the RUK's bilateral and strategic interests to support Scotland's NATO membership aspirations and that it would be a less onerous application process for Scotland than that for the EU. However, Lord Jay of Ewelme, former Permanent Under Secretary at the FCO, reflected the views of several witnesses when he cautioned that "there would be some very tough negotiations"[49] not least because of Scotland's intention to prohibit nuclear weapons on Scottish territory. There are those who argue that countries like Norway (which also strongly opposes nuclear weapons) show that NATO can and would accommodate Scotland's non-nuclear stance, but there are others who suggest that such a foreign policy posture could have an impact on the longer term cohesion of the Alliance.[50] Professor William Walker, Professor of International Relations, University of St Andrews, told us that "there are all sorts of divisions of opinion within NATO". He added that:

My surmise would be that NATO would want Scotland to be part of it, in due course, but, of course, not on any terms. There would obviously be consultation and debate, and there are consensus rules to be considered. It would probably take a bit of time before the position of Scotland and its exact terms of engagement with NATO were settled.[51]

Likewise, Lord Jay agreed that Scotland would most likely gain membership but questioned "whether or not these negotiations can be concluded between the date of a referendum and the end of a transition period". He stated that "whether that would then call into question the date of full independence, I don't know".[52]

38. The idea that Scotland would inherit automatically NATO membership in the event of independence, with access to its collective security umbrella, is an overly optimistic assertion which does not fully take account of international law or NATO's membership rules. We conclude that while the RUK would continue to be a member of NATO, Scotland could expect to face robust negotiations and would not necessarily be in a position unilaterally to shape its membership terms in line with its domestic political commitments on nuclear weapons.

Scotland and the EU

39. As with the other international organisations we have discussed above, witnesses agreed that, in the event of independence, the RUK would assume the UK's place in the EU. (Whether it would retain the same degree of influence is an issue we discuss below at Paragraph 78.) As for Scotland's relationship with the EU, evidence suggested the situation would be more uncertain, as we discuss below.

40. To date, Scotland's membership of the EU has been one of the most keenly contested aspects of the foreign policy debate on independence. There is no debate in principle about Scotland's entitlement to be an EU member; it would be a resource-rich state and it would also instantly meet the Copenhagen criteria[53] for membership. Compared to the eight states that are candidates or potential candidates for EU membership, Scotland rates more highly than seven in terms of commitment to democracy, GDP per capita, population and avoidance of corruption.[54] In addition, as part of the UK, it has applied the EU's body of law and standards, the acquis, in full for decades. Instead, the more contentious debate is about process: would Scotland automatically become a member? If so, what form would that process take and to what extent could it dictate terms? If not, what are the necessary steps to become a member? Would a full application be required or would some form of expedited application be considered, and if so what form would that take?

Automatic or negotiated membership: what rules apply?

41. It is for the EU itself to determine in accordance with its regulations whether and how Scotland would become a member. There are no specific EU treaty provisions applicable to Scotland's situation nor any direct historical precedents upon which interested parties can draw.

42. The Scottish Government's position on EU membership has evolved over recent years but its most recent stance is that Scotland would continue to be a member of the European Union during the period between a yes vote and independence and that as a result, there would be no break in Scotland's membership of the EU.[55] Although the Scottish Government has recently refrained from stating explicitly that membership would be 'automatic', this point remains implicit in its statements on this issue in the form of a new focus on 'continuity'. The Deputy First Minister told us that Scotland would not have to negotiate the terms of its membership as a new state and that instead negotiations would be conducted from within the European Union.[56]

43. It is an unsurprising position for the Scottish Government to take given the many advantages it would bring. For instance, a paper published by the European Policy Centre noted that gaining independence under the "protective umbrella of the European Union" would enable Scotland to increase its autonomy without losing the benefits of EU membership, including cohesion funds, participation in the Single Market, free movement of people and a voice in international (trade) negotiations. Furthermore, the Scottish Government argues that Scotland would be able to appoint its own commissioner and gain weight in the European Parliament and European Council.[57] The Scottish Government is, however, largely alone in arguing that Scotland's accession would automatically take place from within the EU.

44. Specific guidance on what rules would apply to the Scottish situation has been difficult to extract from European Union institutions given their reluctance to become embroiled in what is currently perceived to be a domestic political controversy. The European Commission has stated that it would only be willing to respond to a specific request about a specific situation from an existing Member State and that so far, no such request has been forthcoming.[58] When pressed, the Commission has restricted itself to re-stating the formal position under EU law: that the EU is founded on the Treaties which apply only to the Member States who have agreed and ratified them. If part of the territory of a Member State ceases to be part of that state because it becomes a new independent state, the Treaties would no longer apply to that territory. In other words, a new independent state would, by the fact of its independence, become a third country with respect to the EU and the Treaties would no longer apply on its territory.[59] In 2012, the President of the European Commission, Jos Manuel Barroso said that "a new state, if it wants to join the EU has to apply to become a member of the EU, like any state".[60] It is clear from these statements that there is no formal, automatic right to Scottish membership of the EU.

A fast-track accession?

45. A full accession process would have a considerable impact on both Scotland and the RUK. It would require complicated temporary arrangements for a new relationship between the EU (including the rest of the UK) and Scotland (outside the EU), including the possibility of controls at the frontier with England.[61] The status of Scottish nationals and companies throughout Europe would come under scrutiny and review, and every policy area that the EU touches upon would be affected to some degree or another, ranging from the single market, taxation and citizenship rights to defence, fisheries regulation and external trade tariffs to name but a few. Professor Craven believed "it would lead to a level of legal insecurity which I think most people would want to avoid. So if it is going to happen, the concern for the most part is to make sure that it happens seamlessly; that there is a seamless accession and a seamless separation".[62] Many witnesses believed that it would be in neither the interests of Scotland nor the RUK to create such uncertainty. Given this, there could be an imperative for a pragmatic solution that enabled Scotland to avoid undertaking a full accession process. Professor Hazell told us that:

The formal legal position [...] is that Scotland would not automatically remain a member of the European Union. In our strong view, Scotland would have to reapply. But, depending on the political context, that application would almost certainly be fast-tracked. [...].[63]

46. Indeed, in spite of the formal constraints outlined above, the EU has a well-established capacity to accommodate difference and has been responsive to unusual territorial changes in the past,[64] leading many analysts and the majority of our witnesses to conclude that politics and the views of Member States and the EU institutions would be as important as formal EU law when determining how Scotland's membership aspirations should be handled.

47. Written evidence from Graham Avery, an Honorary Director-General of the European Commission, suggested that a streamlined, fast-track process could be created, far swifter and less onerous on Scotland than that applied to new Member States. He argued that negotiations on the terms of Scottish membership could take place in the period between the referendum and the planned date of independence, and that the main parties would be the Member States (28 members after Croatia's accession in 2013) and the Scottish Government (as constituted under pre-independence arrangements), and that proposals, once agreed by all parties, would come into force on the date of Scottish independence.[65]

The need for treaty change

48. However, even if there was agreement among Member States that Scotland's application could in some way be fast-tracked, Scotland's addition as a new Member State would have institutional and financial repercussions for the operation of the EU treaties which would necessitate, as Dr Murkens explained, "a treaty amendment and that requires unanimity by all [...] Member States." He added that "there is nothing automatic about that process".[66] The Minister of State, FCO, David Lidington MP, also stressed the importance of unanimity, arguing that to do something as "straightforward as insert Scotland into [the] list of Member States in the EU Treaties requires a treaty change". He added, "that requires unanimity, it also requires national ratifications in each Member State, and unanimity will only be agreed once every detail of the terms of Scotland's accession is settled".[67]

49. The Deputy First Minister told us that the Scottish Government had not sought legal advice on whether treaty change would be required. She acknowledged that "it is possible, but I think it would be technical because our argument would be that Scotland should continue in membership on the same basis that we are members just now. We are not arguing, we would not be arguing for any change in Scotland's current relationship with Europe".[68]

Would Member States and EU Institutions unanimously support Scottish membership?

50. Although the Scottish Government argues that Scotland's accession would not result in changes for Scotland, some witnesses told us that the same could not be said for the impact on other states. Given that the number of MEPs is capped under the Lisbon Treaty, the RUK, for instance, would most likely need to agree to a decrease in its MEP representation to enable Scotland to have an increase. Ms Sturgeon suggested that "these are matters that [...] would be subject to discussion, and I am sure constructive and friendly discussion, between ourselves and the rest of the UK".[69] Dr Fabian Zuleeg of the European Policy Centre, contended that it is

difficult to envisage that the RUK would actively attempt to hinder Scotland at the European level, after accepting independence as the settled will of the Scottish people. [...] Nevertheless, there is potential for conflict here, as Scottish independence also potentially implies changes to the UK's position in the EU3, for example with regard to the number of MEPs and votes in the Council of Ministers or with regard to budget contributions and receipts.[70]

51. Dr Murkens told us that, "if the UK Government strongly urges its fellow Member States to give a favourable response to a Scottish application and to fast-track it, I think it is very likely that it would be fast-tracked".[71] However, when we asked the Minister, Mr Lidington, whether the RUK would support an expedited membership process for Scotland, he told us that that was "uncertain" because it "takes us into the content and outcome of negotiations to which the UK would be a party". He also said that "if we look at, for example, fisheries, or if we look at whether an independent Scotland, should join the Schengen Agreement, there are UK interests in the outcome of both those decisions, and remaining UK Ministers would be looking to the interests of England, Scotland and Wales in judging its position both about the pace as well as the desired outcome of such negotiations".[72]

52. The Scottish Government is confident that it could secure unanimous support among Member States for its application, whatever form that may take, although the Deputy First Minister told us that EU Member States had not officially indicated whether they would support Scotland's future membership aspirations. She did, however, ask: "is anybody really credibly arguing that other parts of the European Union would not welcome Scotland with all the assets and resources and perhaps relative enthusiasm?"[73]

53. Dr Zuleeg stated that there would be states that would be sympathetic to Scottish membership based on historic and cultural ties or shared policy priorities. Equally, there would be those concerned about secessionist movements within their own country who would not welcome the prospect of a Scottish succession.[74] Evidence from Dr Ker-Lindsay, Professor Richard Rose and Professor Walker suggested that these states would not necessarily stymie Scotland's aspirations but there was a possibility, as Lord Jay also noted, that they "could cause difficulties or at least spin things out".[75] There would also be a third group of countries, which Dr Zuleeg described as "broadly neutral" towards Scottish membership, whose reaction would depend on their current domestic situation, the nature of the Scottish-RUK divorce and the extent to which Scotland is seen to be a constructive partner in European policy implementation (a posture that Scottish Government ministers have been keen to promote).[76]

54. According to the Brussels-based think tank, the European Policy Centre (EPC), it is not only states with breakaway regions but also members like Germany, at the forefront of EU integration, "which find the prospect of Scottish independence particularly worrying". The EPC argues that this is borne out of a concern that a successful Scottish application could trigger further fragmentation within EU Member States or prompt requests for an 'a la carte' relationship with the EU from other countries. The EPC also suggested that these concerns might be replicated in the European Commission.[77] We heard similar views during recent fact-finding visits to EU Member States.

55. Many of our witnesses believed, and other experts agreed, that Scotland would join the European Union and that Member States would agree to it, but, as Lord Jay put it to us, "there would have to be some sort of concessions and I think there would be a more difficult—it would not be automatic—negotiation than perhaps some are suggesting at the moment".[78]

56. It should also not go without mention that the Scottish Government's predicted negotiating timeframe would most likely run in parallel with the accelerating debate over the UK's future relationship with Europe. Writing in The Spectator, Lord Kerr of Kinlochard, a former UK Permanent Representative in Brussels, pointed out that

the ratification processes [for Scotland], like the prior negotiations, could become protracted were they to coincide with an attempt by the London government to secure a wider revision of the EU treaty, or, after a referendum in the residual UK, to initiate the procedure for withdrawal from the EU. Other countries might wish to consider a request from Alex Salmond together with any from David Cameron.[79]

57. There may be pragmatic reasons for supporting some form of fast track process for Scotland's accession but this does not mean that it would be straightforward or indeed automatically conducted from within the EU, and Scotland may have to make trade-offs to secure the unanimous support that it would require. The impression given by the Scottish Government that treaty change would be a mere technicality seems to us to misjudge the issue and underestimate the unease that exists within the EU Member States and EU institutions about Scottish independence. We do not doubt that Scotland, as an independent country could play a valuable role in Europe, but it is not enough for the Scottish Government to hope, assume and assert that its arguments for a fast-track accession will find unanimous favour. It must also acknowledge that irrespective of the substantive merits of its membership claim, Scotland could still find itself competing against a variety of European political agendas that would make its path to the EU far from straightforward or automatic.

WOULD SCOTLAND RETAIN THE UK'S OPT-OUTS AND AT WHAT COST?

58. Although the Scottish Government maintains that an independent Scotland, negotiating membership terms from within the EU, would inherit the opt-outs and special status that the UK enjoys on the EU budget, Schengen and the Euro, it has acknowledged that it does not have legal advice to support this view. The formal position under the EU Treaties is that if Scotland became a new EU Member State it would be obliged to adopt the acquis communautaire, the body of EU law and Court of Justice case law. While opt-outs on specific issues can be negotiated (and have been in the past), candidate states that are not willing to sign up to basic, fundamental EU policies are more likely to encounter problems affecting their membership aspirations. The terms of entry of a new state, including any opt-outs, would have to be set out in an accession treaty and agreed unanimously by all parties (existing Member States and the applicant state) and ratified according to their respective constitutional requirements.[80]

59. The Deputy First Minister said that the Scottish Government "would be arguing that [the] status quo should continue as we went from being a member of the European Union as part of the UK to being a member of the European Union as an independent country. [...] I am not sure what other countries would find to object to that".[81]

60. According to the European Policy Centre "this is quite an assumption to make, and would hardly be in the EU's interests". It added that the EU is "wary of the Scottish move for independence [because of] the threat of Scotland demanding further opt-outs and exceptional positions within a European Union that is already breaking up into two-tiered membership [...]".[82] It continued: "[T]his status as a 'new old' member state, with the same privileged arrangements negotiated by past British Governments [...] could itself prove an attractive model for other would-be breakaway regions in Europe, whilst providing a considerable source of annoyance for prospective members".[83]

61. Mr Lidington claimed that the Scottish Government's "confidence is not based upon anything written into the treaties or anything that has been said by the European Commission or any other Member State", reasoning that in all recent accessions there has been a presumption that opt-outs or special treatments will not be granted.[84] Scotland could make the case to other Member States for a continuation of the status quo, but any such agreement would have to be unanimous. Mr Lidington said that "the way it is always presented to me in my conversations in Brussels is, 'Look, you have an opt-out from this, but the default position is that EU members ought to be part of Schengen'".[85]

62. If Scotland continues to try to secure opt-outs and special treatment, it could find its path to membership more difficult. Foreign affairs consultant Catarina Tully said that "it would be very much expected—this will be part of the whole admission process—to go with the trend of the acquis, whether in foreign or domestic policy areas". She added that "attempts to re-define or re-negotiate key policies such as those on fisheries or change the status quo could hinder Scotland's chances of securing a swift entry to the EU".[86] Likewise, Professor Chalmers told us that "the more that Scotland says, "[...] we want to have an opt-out from fisheries policy," or, "We want to have a special clause on Faslane," the more the prospect of a smooth transition might be called into question".[87] Dr Zuleeg stated that "if Scotland were to seek special treatment in relation to membership conditions and the implementation of EU policies, it would make it far easier politically to block Scottish aspirations on such grounds, as they are more justifiable than apprehensions or concerns about setting an independence precedent".[88] Likewise, Dr Murkens argued that "a lot depends on the attitude that Scotland brings to the table":

If the Scots say, "Sure, we want to be a member of the European Union and we will adopt the euro and Schengen", and they do not raise an issue about tax rebate or structural funds, I think that Scottish membership would be fast-tracked. But if Scotland uses its newly found sovereignty and independence to pick and choose and to say, "We want to be a member of the European Union but we do not want the euro or to be part of Schengen and we would like a better deal on fisheries and the structural funds [...] then it may take longer, because the European countries have something to say about this and may not be too pleased about Scotland's negotiating position.[89]

63. Even if Scotland succeeded in securing or negotiating a retention of the UK's opt-outs, it has been suggested by the European Policy Centre (EPC) that these would be transitional, "gradually falling away as Scotland adapted to it new position as an EU Member State".[90] The EPC warned that there could be domestic consequences, too:

Scotland, as a some-time beneficiary of EU budgetary munificence and a historical bastion of opposition to Thatcherism, will struggle to justify the retention of the budget rebate deal won by the previous Conservative government in the 1980s. On an informal level, if the Scottish government continues to base its arguments for independence on the perceived benefits of being a small country, and that it will be joining a class of nimble European states such as Norway and Finland, then it must live with the costs as well.[91]

64. The Scottish Government argues that in the interests of continuity, Scotland should retain the UK's EU opt-outs, and that new ones could be added, if it becomes an independent EU member. However, it is one thing arguing for a position and another securing it. The fact that the Scottish Government has confidently done the first does not mean it will be able to do the latter, given the existence of strong forces in whose interests it would be to reject such a claim. If it continues to pursue this policy approach, there is a likelihood that the Scottish Government will undercut its attempts to position itself as a constructive and helpful European partner and therefore may not receive the unanimous support of EU Member States it would require.

3 See Scotland Office, 'Scotland analysis: Devolution and the implications of Scottish independence', Cm 8554, February 2013 and in particular Annex A: Opinion: Referendum on the Independence of Scotland - International Law Aspects. (Professor James Crawford SC and Professor Alan Boyle), www.gov.uk Back

4 Ev 87 Back

5 Ev 75; Ev 87 Back

6 Ev 87 Back

7 Ev 88 [Professor Craven] Back

8 Qq1-3; Ev 97 [Dr Murkens & Professor Hazell]; Ev 89 [Professor Craven]; Crawford and Boyle, Referendum on the Independence of Scotland - International Law Aspects Back

9 Q 329 Back

10 H.G. Schermers and N.M. Blokker, International Institutional Law, 5th ed., 2011, p91, quoted by Professor White in Ev 106. Back

11 Nicola Sturgeon MSP, Today Programme, BBC Radio 4, 11 February 2013 Back

12 Q 241 Back

13 See, for example, "Scotland and rUK in EU: co-equal successor states", SNP Press Release, 19 January 2013 Back

14 Q 227 Back