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.)