Public Law

From the start of the in-earnest independence debate in early 2012, one of the most heated issues has been an independent Scotland’s EU membership (or perhaps lack thereof). As you will see from the links throughout this post, it has also been one of the points on which we have commented most frequently. While today’s ‘Guide’ has provided greater clarity on some issues, EU membership is unfortunately one area in which some key questions cannot be answered with certainty prior to the referendum.

The debate on this issue initially concerned whether an independent Scotland would automatically be a member of the EU or would have to apply for and negotiate membership, with the Scottish Government originally arguing for the former. Charles wrote an article for the Journal of the Law Society of Scotland last December concluding that the issue would instead depend on a negotiated political / diplomatic process rather than a legal one – i.e. the question would be whether Scotland could persuade all the (now 28) existing Member States to agree to Scottish membership contemporaneously with independence and/or on the UK’s existing terms, or whether it would have to accept some less attractive arrangement. Charles noted at the time (with some relief!) that Sir David Edward (former British judge on the European Court of Justice) arrived at essentially the same conclusion, albeit by a different route.

Pages 216-224 of the Guide concern the EU status of an independent Scotland. Page 220 maintains the position that Deputy First Minister Nicola Sturgeon accepted in February – i.e. that an independent Scotland would have to negotiate to become a member of the EU. However, it also maintains that Scotland would not leave the EU at any point because those negotiations would be conducted and concluded before independence from the UK was achieved, stating that an 18-month period is “realistic for the terms of Scotland’s independent membership of the EU to be agreed and all the necessary processes to be completed” in time for an independent Scotland to achieve EU membership in its own right by 24 March 2016 (the Scottish Government’s proposed date for independence in the event of a ‘yes’ vote).

The timescale for concluding negotiations would therefore be key, particularly if Scotland was seeking opt-outs from the standard Treaty obligations to which new Member States must agree (Croatia’s ambassador to the UK recently claimed that the process of trying to agree such terms could be a slow one). While we have known for some time that the Scottish Government had March 2016 slated for independence day, it remains unclear whether there would be any flexibility on that timing if negotiations took longer than planned (whether with the other EU Member States, or with the UK Government on other key ‘structural’ issues such as currency).

On the subject of opt-outs, however, pages 221-222 of the Guide confirm the Scottish Government’s preference that an independent Scotland would negotiate to become a Member State of the EU on the same terms the UK currently has – i.e. including Euro and Schengen opt-outs, and the UK budget rebate. The Guide refers to “the principle of continuity of effect”; a term Nicola Sturgeon also used at today’s launch event and in a previous speech, but which is otherwise not a principle with which we are familiar in the EU law context (or indeed any other context). We assume the phrase is simply being used as shorthand for a deal replicating the UK’s existing terms.

Those terms of course include an opt-out from the Euro, membership of which is otherwise a Treaty requirement imposed on all new EU members, and unqualified support for which may well be viewed as an article of faith among some existing Eurozone members. The Guide maintains the Scottish Government’s position that Euro membership would not be mandatory because membership of the Exchange Rate Mechanism (itself a prior condition of joining the Euro) is not mandatory, and so concludes that Scotland could stay out of the Euro indefinitely by staying out of the ERM. It cites Sweden as an example of that approach. That conclusion assumes, however, that Scotland’s membership terms would offer the same flexibility as Sweden’s – a flexibility the EU did not actually intend at the time Sweden signed up, but of which the Eurozone members are now acutely aware. See Charles and Christine’s video for more on the question of opt-outs (including in relation to the Schengen area, from which we think an opt-out would be easier to secure – though we are not quite as certain as pages 223-224 of the Guide!).

On the negotiation process itself (and if this gets too technical feel free to skip to the next paragraph!), pages 221-224 of the Guide set out how the Scottish Government believes that would work. It rules out Scotland following the full accession process provided for under Article 49 of the Treaty on European Union, and instead argues that Treaty amendments could be made via the simplified procedure in Article 48. Interestingly, Sir David Edward also concluded that Scottish membership would require Treaty amendments rather than an accession process, but nevertheless stated that “the simplified revision procedure provided by Article 48 TEU would not apply, so ratification of the amended Treaties would be necessary.” Apparently the Scottish Government’s legal advice does not concur with Sir David. Regardless of the exact process used, however, Scottish membership would remain subject to approval by each of the other 28 existing Member States.

On the subject of legal advice, the First Minister confirmed this morning that the statements in the Guide accord with the legal advice received from the Scottish Government’s Law Officers on the EU issue. Regular readers will recall that the question of legal advice on that matter took centre stage in the debate for a while, and we commented on its privileged status earlier in the year. However, the statements made by the First Minister this morning may have been sufficient to waive privilege in the advice the Scottish Government has received. With the Scottish Information Commissioner’s recent comments on how she intends to deal with requests for referendum information, the Scottish Government’s legal advice on this issue may now be vulnerable to disclosure via the Freedom of Information process. No doubt the more mischievous members of the fourth estate have already submitted their requests.

If you have any queries about any of the above issues (or the constitutional debate more generally), please do contact one of the team and/or sign up to attend one of next week’s seminars in Aberdeen, Edinburgh or Glasgow. We’ve made extra space available in response to high demand, so you can still sign up here.