Public Law

The argument over an independent Scotland’s EU status has been chuntering on. On Friday the Scotsman reported EU Commission President Jose Manuel Barroso’s confirmation that the Commission believes Scotland would have to apply for EU status. I posted in September about earlier Commission comments to that effect. Today’s Scotsman reports a statement by Nicola Sturgeon addressing that issue. That statement disputes that Scotland would have to reapply for membership, but does say that Scotland would have to negotiate the terms of its “continued” membership.

That statement suggests a change in the Scottish Government’s position, or at least in emphasis, in that earlier arguments have been about Scotland automatically being a Member State upon independence and retaining the UK’s current terms of membership (including the Euro opt-out).

Nevertheless, the Deputy First Minister maintains that Scotland could not be anything but an EU Member State following independence, referring in part to the argument put forth by Aidan O’Neill QC, in the New York Times no less, that Scots would be entitled to retain EU citizenship even if we were no longer British subjects. So, that argument runs, Scotland would be entitled to remain within the EU even if other Member States objected to its membership. If that argument is correct, it is not clear what the scope of any negotiation on the terms of membership could be.

A key question yet to be answered in all of this is: if other Member States were opposed to an independent Scotland being an ‘automatic’ member of the EU (i.e. contemporaneously with independence, and retaining the UK’s current opt-outs), is there a legal mechanism by which Scotland could nevertheless make that happen? If the only answer is that other Member States won’t take that position (rather than, for example, that the Court of Justice of the European Union could decide the point – something which is not at all obvious), the issue must be confined to the political sphere rather than the legal.

But leaving that aside for now, this emphasis on a negotiated approach raises a new and perhaps equally important question, on timing. There would of course need to be a transitional period following any “yes” vote, during which the terms of independence would be negotiated between the Scottish and UK Governments. The Scottish Government has suggested that that period would last until May 2016, when the scheduled Scottish Parliament elections would elect the members of a new independent Parliament. That is viewed by many as ambitious in relation to intra-UK negotiations, and as likely to see a great deal left to be agreed after independence (the last element of Czechoslovakia’s “velvet divorce” – the split of gold reserves – was not finally agreed between the Czechs and Slovaks until many years afterwards).

However, the prospect of conducting and concluding negotiations on EU membership within that time may be at least as challenging. If ensuring continuity of EU membership is the aim, one would not expect Scotland to become independent from the UK until the membership terms had been agreed and preparations for that membership had been actioned. That would likely require a new Treaty approved and signed by every other Member State, some of which may be constitutionally obliged to hold a referendum on Treaty changes. For the most recent accession state – Croatia – the application and negotiation process took eight years (2003-2011), with its membership to take effect from 2013. Scotland would of course have the advantage that the acquis communautaire (the body of EU law) already applies in Scots law, and so negotiations may be considerably more straightforward, but 18 months from application to accession would still be a demanding timetable.


Charles Livingstone
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