We asked you to submit your questions about an independent Scotland. Here's the first of a series of pieces answering them.
Will Scotland continue to be a member of the EU?
An independent Scotland will remain an integral part of the European Union and will not have to re-apply for EU membership from the outside.
Scotland’s most pre-eminent authority on EU law, Professor Sir David Edward, former judge on the European Court of Justice, has now given his opinion on an independent Scotland's relationship with the EU.
In an article for a respected academic website, Professor Edward specifically rejects the contention, made “most recently by the President of the EU Commission, that an independent Scotland, as a new State, would be outside the EU and would have to apply to join”.
His conclusion is that “in so far as we are entitled to look for legal certainty, all that is certain is that EU law would require all parties to negotiate in good faith and in a spirit of cooperation” before Scotland became independent.
Professor Edward’s contribution to the debate confirms much of what has been argued recently by another independent expert, Graham Avery, who worked for 40 years as a senior official in Whitehall and Brussels, and took part in successive negotiations for EU enlargement. Mr Avery is a senior member of St Antony’s College, Oxford; senior advisor at the European Policy Centre, Brussels, and has been fellow at both the Center for International Affairs at Harvard University and the Robert Schuman Centre for Advanced Studies at the European University Institute, Florence. He is honorary director-general of the European Commission.
In a submission to the House of Commons, he said:
“From the political point of view, Scotland has been in the EU for 40 years; and its people have acquired rights as European citizens. If they wish to remain in the EU, they could hardly be asked to leave and then reapply for membership in the same way as the people of a non-member country such as Turkey. The point can be illustrated by considering another example: if a break-up of Belgium were agreed between Wallonia and Flanders, it is inconceivable that other EU members would require 11 million people to leave the EU and then reapply for membership.
“Arrangements for Scotland’s EU membership would need to be in place simultaneously with independence; Scotland’s 5 million people, having been members of the EU for 40 years, have acquired rights as European citizens. For practical and political reasons they could not be asked to leave the EU and apply for readmission. Negotiations on the terms of membership would take place in the period between the referendum and the planned date of independence. The EU would adopt a simplified procedure for the negotiations, not the traditional procedure followed for the accession of non-member countries.”
The main argument put forward by the No campaign is that if Scotland becomes independent it would simply cease to be part of the EU and that we would have to re-apply for membership from outside. This has now been rejected, on legal grounds, by Scotland’s leading authority on EU law.
There is also a common sense reason for rejecting the No campaign’s claim - what they say about Scotland would apply equally to a place like Flanders if it sought independence. As Mr Avery states, it is “inconceivable” to think that Flanders would be asked to leave the EU to then re-apply, especially considering that the seat of European Government, and the European Parliament, could then be outside the EU.
Yes Scotland has made clear there are many common sense reasons why Scotland would continue to part be of the EU, and there are also important legal reasons for rejecting the claims put forward by the No campaign. As Professor Edward highlights in his article, their claims are based on international law, rather than EU law.
It is specifically EU law that will ultimately decide the European question.
There is now a provision in the EU treaties which puts in place a mechanism for member states to negotiate their way out of the EU. (There is also the precedent of Greenland, which went through a prolonged period of negotiation to remove itself from what was then the European Community). It is simply not credible to suggest that the EU would spend two years negotiating to arrange Scotland’s withdrawal from the EU to then follow that with two years negotiating to get Scotland back in to the EU.
The new withdrawal clause was put in place to protect the interests of people across the EU. A prominent QC and expert on constitutional law, Aidan O'Neill, said that independence doesn't give Scotland a “get out of EU-gaol free” card. He also queries whether independence could require people in Scotland to be deprived of rights they’ve acquired as EU citizens.
His conclusion - based on EU law - is that an independent Scotland and the rest of the UK “should each succeed to the UK’s existing membership of the EU, but now as two States rather than as one”.
Taken together, what this tells us is that an independent Scotland will remain an integral part of the European Union and will not have to leave and then re-apply for EU membership from the outside.