EU certainty? Here’s a certainty – we can’t be expelled

In his blog yesterday, Derek Bateman gave a link to a legal paper published this month by Professor Sionaidh Douglas-Scott, a professor of European and Human Rights Law at the University of Oxford. In her paper, Professor Douglas-Scott examines the claims made by both sides in the referendum debate regarding Scotland’s status with respect to the EU after independence. The paper makes fascinating reading, and is a substantial and substantive contribution to the independence debate. The paper can be downloaded HERE. (pdf file)

What the paper proves beyond any reasonable doubt is that the UK Government and Better Whatever They’re Called are either lying, or are seriously misinformed, about Scotland and the EU. Whether or not they’re telling overt lies, it’s a reasonable conclusion that they want voters in Scotland to remain misinformed.

Professor Douglas-Scott believes that the EU has a legal obligation to enter into negotiations with the Scottish and rUK Goverments immediately after a Yes vote, and further believes that the most sensible and practical course of action is for Scotland to be admitted under the provisions of Article 48.

Every coin has two sides, except perhaps fakes with two sides the same that some have used to cheat. The UK government and the Unionist parties’ position on Scottish EU membership is one of those fake coins that’s the same on both sides. We are told that membership of the EU cannot be automatic, oooh negotiations, paperwork, Serbians accusing us of queue jumping, Spaniards with a Catalan chip on their shooders, Schengenoptoutborderseuroblah blah blah. It is then stated as unchallenged fact that Scotland would be out on its ear, and face a long and lonely wait until the rest of Europe decided that we weren’t actually North Korea after all.

After all, it seems logical. If Scotland cannot automatically accede to full membership of the EU without negotiations and paperwork, then by implication it must be a non-member of the EU and therefore outside the EU while negotiations are carried out. In the Unionist story of the evil EU fairy godmother, the newly born Scottish independent princess has the curse of Barroso placed upon her, and she is to be cast out and sent to live in the wilds, surrounded by eurodragons and barbed wire Schengen fences. The implication that Scotland would automatically leave the EU is accepted as unchallenged fact by our Westminster-complicit media, who spread the fairy story and tell us it’s true.

But it’s not actually that simple at all, and we don’t live in the Unionist fairy story. Implications are not facts. The truth is that expulsion from the EU cannot be automatic any more than entry into the EU can be, a point which has escaped our unionist political masters for obvious political reasons, and has escaped almost the entire corps of the UK journalistic profession as well. You know, those professional people paid to investigate things so we don’t have to, like Severin at the Guardian and what he fondly believes to be his fair and unbiased reportage. Severin is perfectly at liberty to write what he likes and what his bosses at the Guardian like, but the pretence that he’s anything but a cheerleader for the Union wore thin a very long time ago. The same could be said for the vast majority of the media in Scotland. As a direct consequence, crucial and relevant information is not getting through to people. Yet this is information which is vital in order for anyone to reach a considered decision on how they’re going to vote in September.

It is a vitally important point, one which is fundamental to any serious discussion of the status of an independent Scotland with respect to the EU, so I’m going to write it in bold.

A country cannot be automatically expelled from the EU. It is against EU law.

Got that? What Alistair Carmichael and Alistair Darling have repeatedly claimed about Scotland being thrown out of the EU “because Scotland won’t have signed the EU treaties”, is wrong. Flat out, no quibbles, no qualifications, it’s just wrong and is in breach of EU law. The only true part of their statement is that Scotland will not have signed the EU accession treaties, but that does not mean automatical expulsion. The first does not lead to the second, their implication is incorrect and it is not the fact they’d like us to believe it was. It’s just presented as a fact, and the Severin Carrells of this world choose not to examine its veracity. If they did, they’d soon find out it wasn’t a fact at all.

Leaving the EU is not a simple process. EU law is not like common or garden international law, it confers rights and obligations upon individuals as well as upon states. Leaving the EU means that these rights and obligations must be carefully disentangled, a process which is covered by Article 50 of the EU treaties. Withdrawl from the EU cannot be automatic, it must be carefully negotiated, a process which can take several years. However, in order to leave the EU by this means, a government must make a formal application to leave the EU. Which is precisely what the Scottish Government won’t be doing.

It has already been confirmed by the UK Government that there are no plans to change UK citizenship laws should Scotland become independent. All UK citizens resident in Scotland, or born in Scotland, will retain the right to UK citizenship after independence, even though they will also have a new right to Scottish citizenship.

This means that the EU will be faced with a newly independent country which is fully in compliance with the EU acquis – the conditions a country must meet in order to become a member – and whose population of 5 million are still EU citizens. The citizens of Scotland will have decided that Scotland is independent as a result of a perfectly democratic and legal process which is recognised by the constitution of the UK. The foundation treaties of the EU oblige all member states to recognise and defend such decisions – and puts an obligation on them to act in “good faith” in such circumstances. Furthermore, the citizens of Scotland will not have expressed any overt desire to leave the EU. The Scottish Government has no intention of applying to leave the EU via the provisons of Article 50 – the only legal mechanism for an exit – and in fact has explicitly stated its desire for Scotland to remain an EU member.

Expelling such a country from the EU against its wishes would mean that the EU and its institutions would be breaching the rights and obligations that the population of Scotland have entered into as individuals as a result of their status as EU citizens. It would create a legal nightmare for the EU.

Automatic explusion from the EU is not going to happen. It’s not legally possible. You want a certainty? There’s one right there. And as well as the legal impossibility, it’s next to impossible in practical terms. The threat that Scotland will be evicted from the EU is scaremongering pure and simple. Its not going to happen. No uncertainty.

Article 50 is the only legal mechanism recognised by EU law for a state, or a newly independent part of an existing state, to leave the EU. And it was added to the EU treaty at the insistence of the UK government. They really DO know how to do irony, don’t they.

Update: Edited to remove a passage that someone was moaning about, and about which I have neither the time nor the energy to engage in protracted discussion.  (See comments below.)


44 comments on “EU certainty? Here’s a certainty – we can’t be expelled

  1. ” Article 50 is the only legal mechanism recognised by EU law for a state, or a newly independent part of an existing state, to leave the EU. And it was added to the EU treaty at the insistence of the UK government. They really DO know how to do irony, don’t they.”

    Why would they have done that?

    • Muscleguy says:

      When you are the UK and you see yourselves as the ‘awkward squad’ and the French are known and have history of opposition to your membership you insert such a clause so WHEN you annoy 80% of other EU members they can’t club together and expel you in revenge.

      When you look at it like that it makes sense. British governments were not always so rabidly eurosceptic as this one, hard to believe I know but I remember.

  2. Thanks for the clarification Paul….

    Does this then raise the question, (insert deity of choice) forbid, about what may happen in the result of a No vote?

    Given the unimpeachable rights that we have inherited as EU citizens, which can’t be removed from us, and given the unique and distinct nature of Scots Law, should the British state wish to remove us ‘against our will’ from the EU, would we then be well within our rights to say, ‘ok chaps referendum time again please’?

    • weegingerdug says:

      The UK would leave under the terms of article 50, after a process of negotiation. If during the EU in-out referendum, the rUK voted to leave but Scotland had voted to stay, there would be very strong grounds for the Scottish Govt to hold another independence referendum as part of that process. It would certainly be interesting, but let’s hope there’s a Yes vote in September and then we’ll never find out.

      • Thanks Paul,think we’ll all drink to that😉

        Why put off until tomorrow, what we can achieve today….

        • Eilean says:

          Former Labour home secretary Alan Johnson on Question Time. He said that he would expect in the event of a No vote in the referendum that the Scottish government would call another referendum if the UK voted to leave the EU.

      • Sheltie2014 says:

        That makes a very interesting point Paul. Also the good Professor Douglas- Scott opinion made me wonder if as an individual You could sue to remain a EU citizen.

    • Muscleguy says:

      And if as in No 10s first response to this Independence referendum they say again ‘you don’t have the right and we won’t be giving it to you’ the Scottish government would, after testing that was the final answer, be within their rights to make a Unilateral Declaration of Independence (IFF the Scottish electorate had clearly voted to stay in the EU).

      Guess who the EU would side with in that situation?

      Of course before that happened the Scottish Govt would take an urgent case to the ECHR arguing that our right to self determination was being denied us. Which is what would have happened two years ago if the Edinburgh Agreement had not been negotiated. No 10 backed down because their civil servants would have advised them they would lose such a case.

      The Catalans are currently exhausting their options under Spanish law and the constitution, once they have done so they will take such a case to the ECHR. If the Spanish constitution is found to be in violation of human rights law then too bad for the Spanish constitution. Of course Madrid knows this so I expect a way will be found as it was here. Having the ECHR do that to your constitution would be highly embarrassing and a blow to Spanish prestige.

      This democratic stuff can be used it seems. Who knew?

  3. Dr A Brown says:

    I’m waiting on the BBC to make this public. How long do you suppose I’ll have to wait?

    • weegingerdug says:

      If you plant an acorn in your garden tomorrow, eventually it will grow into an oak tree large enough for you to get a carpenter to make into a large dining table and a set of chairs. After the table and chairs have appeared on the Antiques Roadshow – then MAYBE.

  4. macart763 says:

    Great dissection Paul.

    Douglas-Scott, Professor Mackay, Professor Dunleavy and

    Four cases which should leave BTVNOBUKOK without a leg to stand on. In fact it should all be over bar cleaning up the after party mess. But its not.

    Soon as I read Derek’s piece I posted the link to the Douglas-Scott pdf over on CiF to see what the response would be…

    … Nothing, zero, nada, not a sausage. Not a troll would touch it and no inquiry from ATL and still no word in the press. In a world where we had a media worth spit these four cases alone would have and should have seen us pretty much in an unassailable lead as the opposition case fell into the crapper of no return.

    Seriously sick to f**king death of our so called media.

    • Dr A Brown says:

      Is there anyone out there who knows how to get this on the mainstream news?
      I’m just a wee wumin who would like to help but I’ve not got a clue how to.
      Him indoors mans a local stand each weekend and delivers the good word round the doors,
      He’s becoming desperate and I’m not far behind him. We have to do it this time.
      It feels like we are gagged and bound.

      • macart763 says:

        The sad fact is the mainstream are as aware of these stories as we are. They will use one of two techniques in order to stick with their current narrative. 1. They will ignore them altogether or 2. There will be a period of several days or weeks even before a subject will receive well off front page notice in an article. Said article will be littered with minor inaccuracies, absolutely no investigative critique of the issue, heavy rebuttal quotes from a BT spokesman, oh and somehow Alicsammin will have erred.

      • ian foulds says:

        Know how you feel!!

        I am overseas so have no clue whether YES Scotland are informing the Scottish people of the facts from the Rooftops, Billboards or wherever they can that bypasses those who are economic with the truth.

      • diabloandco says:

        I think the only answer is to go ” foreign” and get the ” foreigners” to ask the awkward questions of our much travelled PM and entourage.

        I was kind of hoping that Jon Snow had been ” enlightened” and would continue to enlighten on Channel 4 but he has become another damp or dampened squib.

        Meanwhile , thank goodness for this Wee Ginger Dug , Wings , Bella ,Bateman and a plethora of others who keep telling it like it is and working hard for Scotland, not to mention keeping my spirits up!

      • macart763 says:

        Worth spreading. A powerful piece from Derek Bateman

        And this is how word gets out. Since we can’t rely on the people we’ve supported with our cash for years to do the job, we do it ourselves.🙂

  5. […] EU certainty? Here’s a certainty – we can’t be expelled. […]

  6. We HAVE to do this….
    Think of where we’ll be Together if we don’t?

  7. Tachyonica says:

    Reblogged this on Eurosceptic Nation

  8. bobsinclair2014 says:

    Paul, that last paragraph condenses into 3 sentences what I’ve been trying to tell people for months. You just made my life a hell of a lot easier.

    Thanks again.

  9. Morag says:

    People have been pointing out the imperative of this for months if not years, even before the paper under discussion. The crucial question to ask the nay-sayers is, on what date will Scotland be expelled from the EU?

    Some have tried to say 19th September, as soon as a No majority is announced, but this is obviously preposterous. If it were to happen, the only possible date would be independence day in March 2016. Except, the diplomatic effort during these 18 months isn’t going to be expelling Scotland, it’s going to be negotiating the terms of Scotland’s continuing membership.

    It’s extremely obvious, it always was, but all these highly paid talking heads cn do is patter the BT and Westminster lies.

    • Muscleguy says:

      Wonders will never cease.

      Though they recycle Barroso’s spun fudge and let a BT spokescreature rehash the now discredited party line. They have no shame.

    • Dr A Brown says:

      My dander is well and truly up.
      Where is our William Wallace? If I acted like a suffragette would it help? Rode around like Lady Godiva? What can I do to make us heard?
      Is there a band of folk we can follow? Like an Independence Boy/Girl band?
      This is a great place to hear the latest news and to give vent to my fed upness, but what can we do that will be reported worldwide?
      Is there anyone out there who is prepared to be one of the band of leaders? Not politicians but ordinary folk who will make themselves heard?

      • macart763 says:

        You’re doing it right now and reaching more people than you imagine. We make ourselves heard and spread word to anyone who will listen about sites like this.

        We are our own marketing and publicity. Its David v Goliath, but the wee lad didn’t do too bad last time.🙂

  10. Hugh Wallace says:

    Reblogged this on Are We Really Better Together? and commented:
    “Automatic explusion from the EU is not going to happen. It’s not legally possible. You want a certainty? There’s one right there. And as well as the legal impossibility, it’s next to impossible in practical terms. The threat that Scotland will be evicted from the EU is scaremongering pure and simple. Its not going to happen. No uncertainty.

    Article 50 is the only legal mechanism recognised by EU law for a state, or a newly independent part of an existing state, to leave the EU. And it was added to the EU treaty at the insistence of the UK government. They really DO know how to do irony, don’t they.”

  11. So far from being a once in a generation referendum we might have to refight it after an EU out vote. My knees are quaking at the thought – as is my bank balance. Better just vote Yes this time and get it over with, then we can enjoy ourselves.

  12. […] In his blog yesterday, Derek Bateman gave a link to a legal paper published this month by Professor Sionaidh Douglas-Scott, a professor of European and Human Rights Law at the University of Oxford….  […]

  13. Capella says:

    What a scandal our “press corps” is. What a miserable, decadent, corrupt bunch of lackeys and trolls, most of them a “pissoir de copie” as Muriel Spark once said! Imagine paying to be lied to and misinformed on every aspect of the referendum debate. Thank heavens for this blog and the others which are tirelessly getting the message out. It would be wonderful to have the reach of the MSM, and maybe there are many more reading this blog than we imagine. Thanks again WGD.

  14. Reblogged this on My Indyref Take and commented:
    Wee Ginger Dug how I love you

  15. Graeme Cowie says:

    This article is incorrect when it states that, and I quote:

    “[Under Art 48] Scottish membership would need to be agreed by the majority of other member states, and no one state would have a veto. This is in accordance with the position put forward by the Scottish Government.”

    Professor Douglas-Scott does not claim this. Had he claimed this, he would be wrong.

    Art 48 sets out what is called “ordinary revision procedure” which is the means by which the European Union’s treaties are to be amended. It is the method to the Scottish Government refers to in the White Paper. Art 48(4), in relation to ordinary procedure, provides, and I quote:

    “The amendments shall enter into force after being ratified by all the Member States in accordance with their respective constitutional requirements.”

    This means that unanimous agreement by all 28 member-states, including ratification in accordance with their constitutions (in the case of some countries, this includes referendums) is required before Scotland could become a member-state of the EU under that provision. It is flatly untrue that there is no veto here. It is flatly untrue that Douglas-Scott claims this to be the case. It is flatly untrue that the Scottish Government have claimed that ordinary revision procedure requires a mere majority to assent.

    As such, please correct it.

    • I suggest that you take this up directly with the writer of the research paper, Prof SIONAIDH DOUGLAS-SCOTT.

      I am sure she is just dying to talk to you.

      Do keep us informed.

      • Graeme Cowie says:

        Her paper is not the problem. This article has misrepresented her findings.

        • Why don’t you write to her and tell her so.

          This conversation is at an end.

          Have a nice day.

          • Graeme Cowie says:

            I somewhat doubt that she cares what a random person on the internet has incorrectly deduced from her work. I raise the point to ask the owner of this blog to correct their inaccuracy.

            • weegingerdug says:

              I’ve removed the passage which offends you. The rest of the article remains. The crucial points made by Prof Douglas-Scott in her paper are that it is against EU law to evict Scotland automatically from the EU, there is no procedure permitting the automatic exclusion of Scotland, and irrespective of the exact procedure Scotland uses to accede to full EU membership, it will do so from WITHIN the EU – which makes the issue of a veto somewhat meaningless.

              I trust you’re happy now. But I do have a random life which throws up more important random issues than random comments from random people who are randomly pissed off on the Internet – so I am not always able to randomly attend to your random comments within a random second. (And a bit of random politeness never went amiss sweety.)

    • rabthecab says:

      At the risk of sounding pedantic (Oh what the hell I am anyway!) I believe that when taking issue with what you see as inaccuracies in a post you could at the very least endeavour to get simple facts such as peoples’ gender right.

      Just saying.

  16. […] that uncertainty when it could by asking the EU right now – even though we all know the answer. I don’t even know why we’re wasting time on pensions when the UK government has […]

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