Tuesday

22nd Aug 2017

Lawyers divided over Scotland's EU plans

  • Legal experts are divided over Scotland's EU future (Photo: maria_navarro_sorolla)

Constitutional lawyers remain at loggerheads over whether an independent Scotland would remain part of the EU.

A handful of the UK's leading legal experts clashed on Thursday (23 January) as they gave evidence to the Scottish parliament's European and External relations committee in Edinburgh.

Thank you for reading EUobserver!

Subscribe now and get 40% off for an annual subscription. Sale ends soon.

  1. €90 per year. Use discount code EUOBS40%
  2. or €15 per month
  3. Cancel anytime

EUobserver is an independent, not-for-profit news organization that publishes daily news reports, analysis, and investigations from Brussels and the EU member states. We are an indispensable news source for anyone who wants to know what is going on in the EU.

We are mainly funded by advertising and subscription revenues. As advertising revenues are falling fast, we depend on subscription revenues to support our journalism.

For group, corporate or student subscriptions, please contact us. See also our full Terms of Use.

If you already have an account click here to login.

Scotland would become a legal test-case if it votes for independence in September but seeks to retain its membership of the EU.

The Scottish government believes that it can fast-track its membership bid by using article 48 of the EU treaty which would involve an amendment to the treaties rather than the formal application process spelt out in article 49, which has been required for previous accession countries.

Addressing members of the Scottish parliament, Sir David Edwards, formerly a judge at the European Court of Justice, endorsed the plan, commented that it would require “relatively small" changes to the treaties.

He also took issue with EU officials who have insisted that an independent Scotland would start from the same starting point as previous EU applicant countries.

"I was judge of the European Court for 14 years. I remember repeated occasions where politicians have asserted positions which the court has found to be wrong," he said.

"There is a gap between the vote and independence, and in that period you have an obligation to negotiate a solution to the problem," he added.

Both European Commission president Jose Manuel Barroso and his EU Council counterpart Herman van Rompuy have indicated that Scotland would be treated the same way as previous applicants.

But Kenneth Armstrong, a professor of law at Cambridge university, described the article 48 route as "legally implausible and incredibly politically risky."

"It is a way of renegotiating the treaties between existing member states, and not with some other non-member state," he said.

Westminster is clear that voting to leave the UK would also be a vote to exit the EU. If it wins the referendum in September, the Scottish government has allotted 18 months to negotiate the terms of its departure from the UK and its EU membership, before declaring independence in March 2016.

The UK government is clear that Scotland would have no trouble conforming to the EU rule-book - known as the acquis communautaire - and that it would not attempt to obstruct or delay a Scottish EU membership application.

But ministers argue that the short time-line would weaken Scottish first minister Alex Salmond's hand in securing attractive membership terms.

"A deal with a date" amounts to "a negotiating position of spectacular weakness," Scottish Secretary Alistair Carmichael said during a speech in Brussels this week, adding that Salmond's plan would involve the EU's 28 members agreeing to re-write the bloc's seven year budget and the Common Agricultural Policy.

For his part, Aiden O'Neill, an expert on EU constitutional law, said that EU leaders would be keen to avoid a legal minefield whereby EU nationals living in Scotland could lose their citizenship rights in the event of independence.

"If one were to posit the possible nightmare scenario of Scotland being independent outside the EU with British nationality no longer afforded to Scottish citizens, then EU nationals here are no longer within the EU and no longer have claims against an independent Scotland for their EU rights.

"Something will be worked out, it always is."

'Killer robots' are not about Terminator

A European signatory of an open letter about autonomous weapons says the imagery of fictional killer robots is distracting from a seriously dangerous issue.

News in Brief

  1. US will ask Nato allies to send more troops into Afghanistan
  2. Greece to be absent at event on Communism and Nazism
  3. Czechs want observer status in Eurogroup meetings
  4. Putin sends EU-blacklisted ambassador to US
  5. Austria has begun checks at Italian border
  6. Slovenian PM: Brexit talks will take longer than expected
  7. Merkel backs diesel while report warns of economic harm
  8. UK to publish new Brexit papers this week

Stakeholders' Highlights

  1. European Jewish CongressEuropean Governments Must Take Stronger Action Against Terrorism
  2. European Healthy Lifestyle AllianceDoes Genetics Explain Why So Few of Us Have an Ideal Cardiovascular Health?
  3. EU2017EEFuture-Themed Digital Painting Competition Welcomes Artists - Deadline 31 Aug
  4. ACCABusinesses Must Grip Ethics and Trust in the Digital Age
  5. European Jewish CongressEJC Welcomes European Court of Justice's Decision to Keep Hamas on Terror List
  6. UNICEFReport: Children on the Move From Africa Do Not First Aim to Go to Europe
  7. Centre Maurits CoppietersWe Need Democratic and Transparent Free Trade Agreements Says MEP Jordi Solé
  8. Counter BalanceOut for Summer, Ep. 2: EIB Promoting Development in Egypt - At What Cost?
  9. EU2017EELocal Leaders Push for Local and Regional Targets to Address Climate Change
  10. European Healthy Lifestyle AllianceMore Women Than Men Have Died From Heart Disease in Past 30 Years
  11. European Jewish CongressJean-Marie Le Pen Faces Trial for Oven Comments About Jewish Singer
  12. ACCAAnnounces Belt & Road Research at Shanghai Conference