Scotland’s Future in the EU

Prof. Kenneth A. Armstrong

The Scottish Government has produced its much-anticipated White Paper setting out the case for Scottish independence from the United Kingdom. In over six hundred pages, Scotland’s Future sets out the implications of independence across a spectrum of policy areas, including an independent Scotland’s relationship with the European Union. The core of the argument that is presented by the Scottish Government is for continuity of Scottish membership of the EU. Indeed, the spectre of a UK withdrawal from the EU gives added impetus to the case that is made not just for Scottish membership of the EU but for independence itself.

The White Paper is not a neutral expert analysis of the costs and benefits of Scottish independence. Rather it is a political and constitutional manifesto of the incumbent political party – the Scottish National Party – exercising power under the existing devolution settlement. Its aim is to provide greater clarity on the implications, and apparent benefits, of Scottish independence. Yet, in its analysis of an independent Scotland’s relationship with the EU, the White Paper lacks clarity and candour in three important respects:

  • Why is it right to hold a referendum on independence and not to have a referendum on whether an independent Scotland should be inside or outside the EU?
  • Why is it better to seek EU membership through a renegotiation of the treaties rather than through the normal accession process?
  • Is it self evident that a small state has greater European influence if independent compared to seeking influence via a larger state of which it is a constituent part?

Selective Referendums

The Scottish Government’s White Paper proposes neither that Scotland withdraw from the EU at the same time as it withdraws from the Union, nor that a referendum is held on Scottish membership of the EU. The White Paper largely assumes that EU membership is in Scotland’s interest; that this belief is widely held by the Scottish electorate; and that unlike independence itself, there is no need for a referendum for the electorate to express its view. As a small European state, Scotland has the option of being a Slovakia inside the EU or a Switzerland outside the EU. It is unclear why this fundamental constitutional issue is not also the subject of a simultaneous referendum: a point made previously by Aidan O’Neill QC. After all, for proponents of EU membership – including the Scottish Government itself – a positive vote in a referendum could strengthen not just the mandate to negotiate Scotland’s membership of the Union but also the case for an accelerated process. More generally, if it is right that the electorate is given a vote on the acquisition of independence, it is surely also right that a vote is given on whether the exercise of power post-independence is better conducted inside or outside of the framework of the European Union.

Pathways to EU Membership: Accession or Treaty Amendment?

The aspiration of the White Paper is that Scotland will have continuity in its relationship with the European Union, to be achieved by negotiating the terms of membership in the period between the independence vote and the date set for independence, 24 March 2016. Indeed, the White Paper makes clear that independence and membership of the EU are to occur on the same day. What is remarkable is the presumption that the date of Scotland’s EU membership is a matter to be fixed by the Scottish Government, rather than a matter to be determined by EU institutions and EU Member States. Having fixed the independence date, the Scottish Government seems intent on dictating not just the outcome of negotiations – EU membership for an independent Scotland – but also the timetable.

The White Paper rightly acknowledges that there is no direct precedent for a territory of a Member State to secede from that Member State while simultaneously seeking continuity in its EU rights and obligations. At best, there are more or less plausible arguments and analogies. The dominant legal view – as illustrated in the Boyle and Crawford legal opinion for the UK government – is one that gives preference in continuity to the rights and obligations of the entity which would be the successor state to the United Kingdom, with the seceding entity treated as an entirely new state in international law. In other words, post-independence, the ‘United Kingdom’ would retain its EU membership, with Scotland having to seek EU membership on its own account. The idea that the treaties would cease to apply to the territory of a seceding entity has also been supported by the European Commission President in a letter to the chair of the House of Lords economics committee.  Not surprisingly, this interpretation is contested in the White Paper. Certainly, there is something different about an entity where the rights, duties and obligations of EU membership have been exercised continuously since UK membership of the EEC in 1973, and even more so, given the distinctive legal and political system in Scotland; a system that has seen two Scottish judges sit in the European Court of Justice. There is a very strong argument in favour of fast-tracking an application by an independent Scotland, with as much negotiation done as possible in advance of independence. Indeed, as has been observed by Sir David Edward – one of those Scottish, former ECJ judges – there may be a duty on EU institutions and Member States to cooperate and negotiate in good faith in advance of Scottish separation from the UK. But that means neither that the Scottish government can fix the timetable relative to its preferred date for independence nor that the accession process as laid down in Article 49 TEU can be completely bypassed as is suggested in the White Paper.

The EU membership option advanced in the White Paper is for continuity of membership to be effected via an Article 48 TEU amendment to the treaties. Article 48 TEU provides the mechanism for the existing Member States of the EU to renegotiate the terms of the EU treaties. This provision was heavily amended by the Lisbon Treaty to create two variants: a ‘simplified’ and an ‘ordinary’ revision process. The scope of the revisions that would be entailed by Scottish membership of the EU would take this outside the scope of a simplified revision leaving the only option the ordinary revision process. Under the Lisbon Treaty version of Article 48 TEU, a proposal to amend the treaties would need to be initiated by a Member State, the Commission or the European Parliament. This is very different from the Article 49 TEU accession process which is triggered by the state seeking membership and where the Council is obliged to act in respect of the application. In other words, even assuming that the Article 48 TEU route is open, there is nothing that obliges any other EU state or EU institution to instigate the revision process. It is one thing for an independent Scotland to request that EU institutions and Member States negotiate in good faith in an advance of a formal request by Scotland to accede to the EU under Article 49 TEU and another to expect those institutions or Member States of their own will to initiate a treaty amendment process.

If the Article 48 TEU process were initiated by the European Council, it would entail the convening of a ‘convention’ to adopt recommendations on the treaty amendments, unless the European Council, with the consent of the European Parliament dispensed with this requirement. Either way, 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. As with a formal accession process, there remains the need for consent among the existing Member States and for ratification of the outcome. Given that there are similar veto points – and it is worth reiterating the position of the Spanish government which is that an independent Scotland would need to apply for membership as a new state under Article 49 TEU – it is not clear what advantage there is in trying to fit Scottish membership into the Article 48 TEU process rather than the Article 49 TEU process. Given that Scottish membership of the EU would also need to deal with issues such as what obligations it would undertake in areas where the UK currently has opt-outs/opt-ins or otherwise does not participate – border control and Euro membership being cases in point – and given that these are precisely the issues which have been dealt with in respect of new EU Member States in the accession treaties concluded under Article 49 TEU, it would seem more plausible that the Article 49 TEU route be used.

There is one final argument that tends to argue in favour of the Article 49 TEU route. Article 50 TEU makes provision for an existing Member State to leave the EU. Article 50(5) TEU provides that if a state that has left the EU seeks to rejoin the EU, it must make a membership application using Article 49 TEU. The reason why this provision might be analogous to the situation of a Scottish application for EU membership is that it applies to a territory that had previously exercised the rights, duties and obligations of EU membership. The assumption is that in view of the passage of time, it would be for EU institutions to verify the capacity of the state to undertake once again its obligations. While the White Paper envisages continuity of obligations, nonetheless, it remains the case that EU institutions ought to verify whether the institutions and structures of the post-independence constitutional settlement are capable of ensuring that an independent Scotland could properly commit to, and exercise, the obligations of EU membership. As intimated earlier, this need not be a long process and there is every reason to argue for a fast-track accession process. However, the spirit and wording of Article 50(5) TEU would seem to push very strongly against the White Paper’s assumption that Article 49 TEU can simply be avoided.

The Influence of a Nation in a Large State Versus Influence of a Small State

Looking beyond the procedural hurdles to EU membership, the substantive argument for Scotland’s EU membership is that as an independent Member State, Scotland will have full rights to participate in EU policymaking and in leading on policy agendas that are in Scotland’s interests. In terms of voting rules within the Council, Scotland would likely be in a similar position to Ireland, Finland, Slovakia, Croatia, Denmark and Lithuania, who have 7 votes under the current arrangements. This compares with the 29 votes exercised by the United Kingdom. With the Lisbon Treaty increasingly making qualified majority voting the norm, small states can be expected to have limited unilateral voting power. In other words, small states can typically only seek to block proposals by forming coalitions, particularly with larger states. It is, of course, true that formal voting is rare and that negotiations tend to seek a consensus in which the legitimate interests of states are taken into consideration. Yet that still leaves small states reliant on other parties – the European Commission, the rotating presidency of the Council, the larger states – to help defend their interests.

Given the economic and other linkages which would remain between an independent Scotland and the rest of the UK, it seems likely that an independent Scotland would repeatedly be engaged in efforts at forming a coalition with the Westminster government on European issues but without the existing coordination arrangements. The White Paper is silent on the manner in which European policy is already coordinated between the devolved administrations and the UK government. Under a Memorandum of Understanding – revised as recently as October 2013 – procedures are established for consultation and coordination of a UK position within the Council that involves the devolved administrations. Ministers from the devolved governments may form part of the ministerial team conducting negotiations: requests to attend Council of Ministers meetings are to be ‘welcomed’ unless the lead UK minister can explain why there is a compelling reason not to accede to the request. Of course, the point that the White Paper makes is that Scotland would negotiate as an independent Member State rather than exercising influence derived from its attachment to the UK. The issue, however, is whether more influence can be obtained through an autonomous power of negotiation as a small state compared to derivative influence exercised via a large state.

Small states can exercise influence within the European Union and can champion particularly causes. Yet, the capacity to exercise power within a set of rules and institutions is not the same as having power to determine what the rules and institutions should be in the first place; something over which larger states have typically exerted greater influence. Of course, in the situation of Scotland, the point is perhaps that a large state – the United Kingdom – may well move more decisively in the direction of reshaping the European system through its own exit, taking Scotland with it. It is the lack of control over that scenario which is effectively deployed in the White Paper to forge the case for independence. Yet the threat of UK exit does not, of itself, make the case for Scottish membership of the EU. The argument remains that if it is right to ask the constitutional question of whether the nation of Scotland ought to exit the Union, it is also right to determine whether a small independent state can better exercise its power inside or outside the EU.

Kenneth A. Armstrong, Professor of European law, University of Cambridge

Views expressed are personal.

2 thoughts on “Scotland’s Future in the EU

  1. I wonder if there might be an interesting ‘bottom up’ angle to the membership question that might have a little mileage.
    If the people of Scotland are EU Citizens, which means they have EU rights which have become part of their individual ‘legal heritage’ could they not claim to have a legitimate right to retain those rights as a matter of EU law no matter what the international law of Treaties sets out?

  2. The citizenship angle does have purchase in that it pushes in favour of continuity of rights and duties. But I don’t think that means that an independent Scotland would get to name the day of EU membership by reference to its own preferred date for independence. Nor is it a claim that trumps all others. What is does argue for – and this I take to be Sir David Edward’s position – is that negotiations take place in good faith to seek to ensure continuity of membership if that is the actual will of the Scottish electorate. As i argued I think it would strengthen that claim if the electorate had actually voted for EU membership as well as for independence. But in any event, nothing in the wording of the treaties prevents another Member State exercising a veto right. The legal purchase of the citizenship claim would need to be that this somehow conditions the capacity of another Member State to exercise a veto right. I don’t think the citizenship claim can, of itslef, trump the veto right, but it would form the basis of a legal review of how such a veto power was exercised. In other words, it would require the position to be taken that veto rights are themselves subject to broader constitutional standards and principles.Again, we have no precedent for this.

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