The Referendum on Separation for Scotland: Scotland's Membership of the EU - Scottish Affairs Committee Contents


2  Becoming an EU Member State

The route to membership: accession or amendment?

14. The accession route for a country seeking to join the European Union is via Article 49 of the Treaty on European Union. This is the only article in the EU Treaties which provides a specific procedure for a country to become a member of the European Union.[14] However, this is not the preferred route of the Scottish Government, which has stated that:

    Article 49 of the Treaty on European Union provides the legal basis, and defines the procedure, for a conventional enlargement where the candidate country is seeking membership from outside the EU. As Scotland joined the EU in 1973 this is not the starting position from which the Scottish Government will be pursuing independent EU membership. Article 49 does not appear to be the appropriate legal base on which to facilitate Scotland's transition to full EU membership.[15]

Instead, the Scottish Government is seeking a "seamless transition" to membership of the EU through Article 48 which provides for the Treaties to be amended.[16]

15. At the most basic level, Scotland cannot be recognised as a member of the European Union because it is not listed in the Treaties as a Member State. In the Scottish Government's view, the Article 48 process can be used to revise the Treaties to include a separate Scotland. They believe the advantage of this process is that, should Scots vote in favour of separation, it can begin immediately after the referendum and, the Scottish Government argues, be concluded within 18 months, before the formal date which it has set for separation, 24 March 2016. As in the conventional route of accession under Article 49, negotiations and ratification of the terms of Scotland's membership would still be required. The Scottish Government has said that its approach to negotiations would be based on the Treaty obligations and provisions that currently apply to Scotland[17] but it is by no means certain that a separate Scotland would receive the range of opt-outs it currently enjoys by being part of the UK - every detail could be subject to negotiation (we discuss the potential terms of Scotland's membership in the following chapter).

16. One reason why the Scottish Government favours the Article 48 process is that application for membership of the EU via Article 49 would cause a gap in Scotland's presence within the EU. Professor Kenneth Armstrong, Director of the Centre for European Legal Studies at the University of Cambridge, explained: "it could carry out all the background negotiations and all the rest of it beforehand; it could have substantially done the deal, but it could only formally trigger the Article 49 process once it was an independent state."[18] Even if preliminary negotiations were completed before separation, the time required for formal sign-off on the terms of membership and subsequent ratification process would still mean a gap in membership and the legal and economic problems that would ensue.

17. An interruption in the application of the EU Treaties would have serious implications for people of Scotland. As Professor Sir David Edward, a former judge at the European Court of Justice, points out:

    The logical consequence in law would be that, from that moment, the acquis communautaire would no longer, as such, be part of the law of the separating State. […] Erasmus students studying there would become 'foreign students' without rights. Migrant workers would lose their rights under EU law to social security. And the whole land and sea territory of the separating State would cease to be within the jurisdiction of the EU. (In the case of Scotland, which probably has the largest sea area in the EU, that is an important security consideration quite apart from other considerations.)[19]

Other serious issues caused by a gap in EU Membership would include interruption in funding from the Common Agricultural Policy. The Foreign and Commonwealth Office (FCO) expect that in the event of an exit from the EU, funding from the CAP would cease and any continuation of existing levels of support to Scottish farmers would require funding from a Scottish national budget of an estimated €550-€600 million per year based on 2011 prices (though during this period Scotland would also not be making any contribution to the EU budget).[20]

DISAGREEMENT

18. Experts are divided on whether Article 48 can be used to increase the membership of the European Union as the Scottish Government suggests. Jean-Claude Piris, former Legal Counsel of the European Council and Director General of the Legal Service of the EU Council, argues that:

    it would not be legally correct to try and use Article 48 of the Treaty on European Union for the admission of Scotland as a member of the European Union. Only Article 49 of the same Treaty would provide for a suitable legal route.[21]

Professor Armstrong told us that, because its purpose is as a means to renegotiate the Treaties between existing Member States, "straightforwardly and legally it is implausible to use Article 48".[22] In February 2014, Jose Manuel Barroso, President of the European Commission, stated that "in the case there is a new country, a new state, coming out of a current Member State it will have to apply".[23]

19. Graham Avery, Honorary Director General of the European Commission, contends that, in making a decision about the process of Scotland gaining membership, EU leaders would take account of the implications of requiring Scotland to apply as an external state. He argues that political and practical considerations would cause a solution to be found because Scotland being outside the EU would not be in the interests of the EU or its Member States, particularly the UK:

    The scenario of an independent Scotland outside the EU and not applying EU rules would be a legal nightmare, create social and economic difficulties for EU citizens, and deprive the EU of benefits of Scotland's membership (its budgetary contribution, fisheries resources etc.)[24]

The Scottish Government agrees with Graham Avery that the EU would find a solution, as Fiona Hyslop MSP, Cabinet Secretary for Culture and External Affairs, told the Scottish Parliament's European and External Affairs Committee "where there is a political will, there will be a way. The EU is a past master at dealing with unprecedented situations."[25]

20. In Professor Sir David Edward's view, Article 48 can be used to provide for a separate Scotland becoming a member of the European Union.[26] Mr Avery points out that negotiations concerning a separate Scotland's membership could begin after the referendum and therefore Scotland would not at that time be a new state (and therefore Article 49 need not apply). Sir David Edward also argues that, because Scotland is already compliant with the acquis communautaire (the body of EU law)[27] a protracted accession process with detailed scrutiny of all 35 Chapters of the EU's acquis would not be necessary. However, as Professor Armstrong reminded us, Scotland is not exercising the same competencies under devolution as it would be exercising were it to become a separate state:

    Therefore EU Member States will have to be satisfied that they understand how an independent Scotland would institutionally and politically manage […] foreign policy and economic policy. The accession procedure under Article 49 is there to verify how an independent state would exercise its responsibilities under the treaties.[28]

THE ARTICLE 48 PROCESS

21. The Article 48 treaty revision process which provides, among other things, for a 'convention' to be convened including national Governments, national Parliaments and the European institutions, can only be instigated by a Member State, the European Commission or the European Parliament and the proposal must be agreed by the other Member States.[29] In the event of separation, the Scottish Government would depend on the United Kingdom to open up the treaty revision process and initiate the negotiations on Scotland's behalf.[30] The Article 48 process would therefore be entirely out of the hands of the Scottish Government.[31]

22. While the UK Government could be expected to act in good faith, it is hard to believe that the UK Government would put forward Treaty amendments on areas that would adversely affect citizens of a continuing UK - it is unlikely, for example, that the UK Government would want to open up discussions on the UK rebate or Scottish Government plans to discriminate against UK students over tuition fees. As Aidan O'Neill QC explained to the European and External Relations Committee of the Scottish Parliament:

    How can one expect the United Kingdom Government to say in pre-negotiations, "We would like you, on behalf of Scotland, to allow a treaty amendment that will in effect discriminate against all the other people we happen to represent in the rest of the United Kingdom"? That is not going to happen. There are therefore clear tensions around the suggestion of going down the route of Article 48, because there are competing interests of what are potentially two different Member States.[32]

23. Rt Hon David Lidington made it very clear that the UK was not in favour of the Article 48 route: "I think it is utterly implausible, and we do not think that is the purpose of Article 48", "our view is that Article 49 is the right [process]".[33]

24. Ultimately, as the Scottish Government itself recognises, it is up to the organs of the EU and the Member States to decide the most appropriate procedure under which a separate Scotland would become a member of the European Union. [34] This process of deciding the procedure is itself completely new and will not necessarily be a speedy one. Indeed, because of the precedent that might be created, it may well be approached cautiously and require wide consultation and unanimity. If Article 48 were chosen and there were doubts about whether it was the correct legal base to effect Scottish membership, then the legitimacy of the process, or if concluded, the legitimacy of Scotland's membership of the EU, could be challenged through the European Court of Justice.[35] Professor Armstrong writes that, in the Court's eyes, it is not enough that a Member State may prefer one legal basis to another, but "rather there must be a genuine and objective connection between the purpose of the legal basis and that of the act adopted."[36] As Courts tend not to deal in hypothetical situations this issue cannot be brought before the Court before the referendum and thereafter only if the vote were in favour of separation. Any challenge would significantly impact on the timetable for membership. In May, Fiona Hyslop MSP confirmed that legal advice on a separate Scotland's membership of the EU had been sought and received, but, despite repeated requests the Scottish Government has refused to reveal its contents.[37]

25. In the event of separation, Scotland's future membership of the European Union, on appropriate terms, would be in the national interests of the UK. Furthermore, we have heard no evidence that any other Member State would regard it as contrary to their national interest, subject to acceptable terms.

26. The Scottish Government's preferred route to becoming a member of the EU is through Treaty amendment under Article 48. Under this process the Scottish Government would depend on the UK Government instigating negotiations on Scotland's behalf. Not only has the UK Government described the prospect of using Article 48 as "utterly implausible" but, in the unlikely event that it is used, the UK Government could not be expected to raise issues that would be to the detriment of the citizens of England, Wales and Northern Ireland. Key objectives identified made by the Scottish Government in its White Paper would not, therefore, be realised.

27. Under the Article 49 process Scotland would have to be outside the EU to apply for membership. For this reason, the Scottish Government favours Treaty amendment under Article 48 but it is unclear whether this is permissible under EU law or acceptable to Member States. There is therefore every likelihood that, in event of a Yes vote, if the Scottish Government continues to insist on an independence date of 24 March 2016 Scotland will temporarily be outside of the European Union - with significant implications for the Scottish people. However, we can find no evidence that the Scottish Government has communicated this risk to the people of Scotland. The Scottish Government should publish the legal advice it has received on a separate Scotland's membership of the European Union as a matter of urgency.

Timetable

28. In the event of a vote in favour of separation, the Scottish Government aims to achieve membership of the European Union within 18 months. This is the period between the Referendum on 18 September 2014 and the proposed date for independence, 24 March 2016. The deadline of 24 March 2016 is one of the Scottish Government's own choosing; it would allow the elections to the Scottish Parliament, scheduled for 5 May 2016, to be the first for the new country. No other country wishing to become a Member State of the European Union has tried to dictate the timetable of its membership in such bold terms.

PRESSURES ON THE TIMETABLE

29. The 18-month timetable assumes many things. First, that it would be accepted that Scotland could seek membership through the treaty amendment process under Article 48 which, as we outlined above, is highly unlikely. If accepted, however, the Article 48 process is still not a route to fast-tracked membership, negotiations would still have to take place, and ratification would still be required.[38] The ratification of Austria, Sweden and Finland's membership took six months, after the conclusion of the negotiations and revision process, and only 12 Member States were involved in that process. Following the completion of the processes of negotiation, ratification of Scotland's membership would need be undertaken by all 28 Member States; although they would do it simultaneously (under their individual constitutional processes), the risk of delay is much greater than it was in the early 1990s and the timetable proposed by the Scottish Government should, but does not, take account of that.

30. There are two revision processes under Article 48, a 'simplified revision process' and an 'ordinary revision process'. An amendment to the treaty such as that sought by the Scottish Government would fall under the ordinary revision process which Rt Hon David Lidington described to us as being very long and drawn-out.[39] As mentioned above, a small amendment under the simplified revision process (a quicker process than the ordinary revision process) which involved little negotiation took close to 18 months to be agreed.[40] There is no guarantee that an Article 48 process is any quicker than accession under Article 49. Professor Armstrong told us that, "there is this erroneous belief that [Article 48] would somehow be quicker. I do not think it would be."[41]

31. As well as being susceptible to legal challenge, which would cause delay and uncertainty, opening up a treaty revision process through Article 48 risks the matter of Scotland joining the EU as a Member State becoming bogged down in matters relating to the UK, such as efforts to reopen the size, or very existence, of the UK rebate, or entirely unrelated attempts to revise the Treaties.[42] For example, Professor Armstrong argues that:

    UK acquiescence in a Scottish request for a revision to the treaties under Article 48 TEU creates a very significant risk of issue-linkage between the constitutional position of Scotland in the EU and that of the UK in the EU that could cause significant delay and damage to the negotiation process. If that were to occur there is every reason to believe that, at best, the negotiating process at EU level would be lengthened, and at worst, the process could become intractable leading to failure.[43]

If opening up of the treaty revision process results in more wide-ranging amendment to the Treaties, there is a heightened risk that ratification of the resulting Treaty might trigger a referendum in a Member State, risking further delay, if not failure.

32. We consider the key aspects of negotiations in the following chapter but the second point worth consideration when discussing the timetable is the considerable challenge of trying to run two separate sets of negotiations simultaneously - on the terms of Scotland's separation from the UK and on its membership of the EU. A number of areas of negotiation on Scotland's membership of the EU will depend on the outcome of separate negotiations between Scotland and the rest of the United Kingdom. Breaking up a 307-year old union would not be straightforward. Professor Adam Tomkins, John Millar Chair of Public Law, University of Glasgow, told us that the idea that negotiations for separation alone could be concluded within 18 months was ludicrous:

    It is completely unrealistic. It seems to me to have been set for purely party political reasons. The reason why the SNP want independence day to occur in March 2016 is that they want it to occur while they still have a majority in Holyrood.[44]

35. Negotiations with the EU on whether Scotland should be permitted to opt out of Schengen, for example, could not take place until the UK, Ireland and Scotland agreed whether, and on what terms, Scotland might join the Common Travel Area as a separate country. Similarly, negotiations with the EU on economic issues, including membership of the Eurozone, could not take place until the currency arrangements of a separate Scotland were clear. It is also presently unclear whether the negotiations would be conducted on the basis that nothing is decided until everything is decided. Such an arrangement, which weakens the Scottish Government's negotiating position because of its self-imposed timetable, is likely to itself be the subject of negotiations and thus delay.

36. The Scottish Government also appears to underestimate the complexity of the negotiations, as Jim Currie, a former Director General of the European Commission, told the Scottish Parliament's European and External Relations Committee:

    The terms of an independent Scotland's membership would not simply involve a seamless move into the EU. Tough negotiations would revolve around a number of things and specifically the opt-outs that the UK has […] I think there will be tough negotiations around these things. Other Member States will have the right to challenge the position and ensure that the conditions under which Scotland would become a full Member State of the EU are fully negotiated.[45]

37. Finally, the 18-month period the Scottish Government is allowing for negotiations on separation from the UK and membership of the European Union includes a General Election in the UK and the appointment of a new European Commission. The imminence of the General Election, which by the referendum will be less than eight months away, is likely to considerably inhibit the UK negotiators since parties competing for the votes of the citizens of England, Wales and Northern Ireland are unlikely to be focused on the needs of Scotland or competing as to which can be most generous to Scotland. The prospects for speedy progress, even for parts of a final deal, are not good.

38. Even with no distractions it would be highly unlikely for Scottish membership to be agreed and ratified within an 18-month period,[46] but, given the number of challenges to overcome, we do not believe that the process could be concluded by 24 March 2016. It is worth noting, as Graham Avery points out, that with regard to the variability of the date of separation, "it is not hugely important to other Member States."[47]

39. It is misleading for the Scottish Government to claim that on 24 March 2016 Scotland could be both a separate state and a Member State of the European Union. There are a number of clear risks to the Scottish Government's strategy to gain membership of the EU, all of which are overlooked in the White Paper, and which make the 18-month timetable unbelievable. The Scottish Government's attitude to becoming a member of the EU appears based on the sentiment, as articulated by Fiona Hyslop MSP, that "where there's a political will, there will be a way".[48] The Scottish Government has provided no proof that the will exists across Europe for Scotland's membership of the EU to be fast-tracked with a timetable of Scotland's choosing, nor can it be certain that its chosen way of achieving such a goal is legitimate or would be accepted by all Member States. To date, not a single Member State has indicated its support for the Article 48 route.

WHAT HAPPENS AFTER 18 MONTHS?

40. As set out above, it is unbelievable that a separate Scotland would be a Member State of the European Union by 24 March 2016. Professor Armstrong told us that "the idea that all of this could be completed within that period is wishful thinking. I do not know of any example where an entity seeking to become a Member State of the European Union had itself set the date on which that would occur."[49] Not only has no other Member State set such a target for its membership application to be completed but the other Member States have little reason to meet it.

41. Should it look likely that Scotland's deadline for membership be missed then three courses of action are readily identifiable: (i) Scotland leaves the European Union; (ii) a provisional arrangement is made to continue aspects of Scotland's existing relationship with the EU; (iii) the date for independence is postponed. Other choices may be available and under consideration by the Scottish Government, if so, they should share these with Scottish voters.

42. There is no evidence to suggest that any Member State regards Scottish membership of the EU, on the right terms, as contrary to their national interest but this does not mean that Member States would fast-track Scotland's request for membership simply because this is what Scotland demands. Were Scotland to insist on separation without the matter of EU membership resolved then, in Graham Avery's words, the situation would become a "legal nightmare":

    Unless Scotland continues to apply EU rules, life will be become diabolically complicated for firms and citizens, not just in the UK, but in Germany, Spain and elsewhere. It is well known that citizens and firms in Member States other than the UK have rights in Scotland, by virtue of Scotland being a member of the EU and, if Scotland no longer applied EU rules and no longer had EU obligations, they would be in a right mess.[50]

It is therefore possible that the EU might make efforts to continue Scotland's presence on a provisional basis.

43. Graham Avery indicated that Scotland could apply to become a member of the European Economic Area (EEA). States in the EEA participate in the EU's internal market but the EEA does not cover fisheries and agriculture. Therefore, if Scotland went down this route some form of customs controls would need to be introduced in these areas.[51] A country in the EEA also has no say in decisions taken by the EU. Membership of the EEA would need to be negotiated and ratified, not just with the 28 EU Member States but also with Norway, Iceland and Liechtenstein. Given the First Minister's recent threats to block access to Norwegian waters if Scotland did not receive EU membership, Norway's assent may now be more difficult to get.[52]

44. Professor Armstrong explained that, if membership was pursued through the accession route (Article 49) then, if the accession treaty had been agreed but not yet ratified:

    It is not inconceivable that that treaty could provide for the provisional application of certain aspects of the treaty, pending ratification. Precisely what those would be is a matter for negotiation. It might be that they would deal largely with ensuring continuity of free movement within the single market, but when it came to more difficult issues of receipt of funds, or participation in institutions, that would not be possible.[53]

45. It is clear that any provisional arrangements would leave Scotland in a poorer position and with less influence in the EU than it currently enjoys as part of the UK. Such arrangements would also not provide any certainty over a date for membership. Graham Avery concludes:

    For me, the alternative ideas that people talk about for the interim period are not very convincing. Candidly, from the point of view of the legal ingenuity needed to put them in place, they would be just as complicated as putting in place an accession treaty from day 1 - probably more so.[54]

We do not believe that negotiation and subsequent ratification of Scotland's membership of the EU could be concluded by 24 March 2016. The Scottish Government have to tell the Scottish people which of the alternative options available they favour. The alternative scenarios of Scotland leaving the EU and entering into complex provisional arrangements or joining the European Economic Area are neither guaranteed nor satisfactory; they offer little benefit, but could cause significant harm to Scotland's interests.

46. An obsession with securing membership of the European Union by a specific date has significantly weakened the Scottish Government's negotiating position. It was a mistake to have made such a commitment. The Scottish Government must clarify for the people of Scotland whether, in the event of a yes vote, its focus in any negotiations would be on getting the best outcome for Scotland or meeting an arbitrary and self-imposed timetable.



14   Written evidence to the European and External Relations Committee of the Scottish Parliament, 12 January 2014 [Professor Armstrong] Back

15   Scottish Government White Paper, Scotland's Future: your guide to an independent Scotland, November 2013, p221 Back

16   Ibid., p220 Back

17   Ibid., p221 Back

18   Q4201 Back

19   Written evidence to the European and External Relations Committee of the Scottish Parliament Back

20   Letter from Rt Hon David Lidington, Minister for Europe to the Chair of the Committee, 30 April 2014 Back

21   Written evidence to the European and External Relations Committee of the Scottish Parliament Back

22   Q4197 and evidence taken before the European and External Relations Committee of the Scottish Parliament, 23 January 2014, p1695 Back

23   Mr Barroso was referring to application through the formal accession route under Article 49. Back

24   Written evidence to the European and External Relations Committee of the Scottish Parliament Back

25   Evidence taken before the European and External Relations Committee of the Scottish Parliament, 3 April 2014, p1947 Back

26   See oral evidence and written evidence given to European and External Relations Committee of the Scottish Parliament.  Back

27   Acquis Communautaire refers to the cumulative body of European Community laws, comprising the EC's objectives, substantive rules, policies and, in particular, the primary and secondary legislation and case law - all of which form part of the legal order of the European Union (EU). This includes all the treaties, regulations and directives passed by the European institutions, as well as judgments laid down by the European Court of Justice. Back

28   Evidence taken before the European and External Relations Committee of the Scottish Parliament, 23 January 2014, p1714 Back

29   The European Council, with the consent of the European Parliament, can dispense with the requirement for a convention but an intergovernmental conference would still need to be convened to adopt the treaty amendments by unanimity and with ratification by all member states consistent with their national constitutional requirements. [source: Professor Armstrong, Scotland's future in the EU, www.eutopialaw.com] Back

30   Scottish Government, Scotland and the European Union, November 2013  Back

31   Written evidence to the European and External Relations Committee of the Scottish Parliament Back

32   Evidence taken before the European and External Relations Committee of the Scottish Parliament, 23 January 2014, p1700 Back

33   Q5223-5 Back

34   Scottish Government White Paper, Scotland's Future: your guide to an independent Scotland, November 2013, p221 Back

35   Q5229 Back

36   Written evidence to the European and External Relations Committee of the Scottish Parliament Back

37   Legal advice on Scotland and EU exists but will remain secret, stv news, 6 June 2013 Back

38   Ratification is the process of agreement by individual Member States. It can be carried out by national parliaments or through referenda. Back

39   Q5217 Back

40   Q5217 Back

41   Q4242 [Professor Armstrong] Back

42   Written evidence to the European and External Relations Committee of the Scottish Parliament [Professor Armstrong] Back

43   Written evidence to the European and External Relations Committee of the Scottish Parliament Back

44   Q4108  Back

45   Evidence taken before the European and External Relations Committee of the Scottish Parliament, 20 February 2014, p1811 Back

46   See for example: Written evidence to the European and External Relations Committee of the Scottish Parliament by Graham Avery, and comments made by Professor James Crawford (source: Daily Record, Legal expert says Scotland could become an independent country within 18 months of yes vote, 12 February 2013) Back

47   Evidence taken before the European and External Relations Committee of the Scottish Parliament, 30 January 2014, p1737 Back

48   Evidence taken before the European and External Relations Committee of the Scottish Parliament, 3 April 2014, p1947 Back

49   Q4109 Back

50   Evidence taken before the European and External Relations Committee of the Scottish Parliament, 30 January 2014, p1743 Back

51   Evidence taken before the European and External Relations Committee of the Scottish Parliament, 30 January 2014, p1744 Back

52   See Speech made by the First Minister at the College of Europe in Bruges, 28 April 2014,.Should Scotland not be able to secure unbroken membership of the EU the First Minister has threatened "the fishing fleets of 12 countries being denied access to Scottish waters and as a consequence, their access to Norwegian waters". Back

53   Q4201 Back

54   Evidence taken before the European and External Relations Committee of the Scottish Parliament, 23 January 2014, p1744 Back


 
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Prepared 27 May 2014