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In a lively discussion on the LabourList website of whether Alex Salmond, Scotland’s First Minister, lied when he allegedly told Andrew Neil that the SNP government had obtained legal advice that an independent Scotland would not have to apply to join, or re-join, the EU, I have drawn attention in a comment to an interesting but neglected statement of the UK government’s view:

I carry no torch for Alex Salmond (although I regard him as the most formidable political leader in the UK) and I’m vehemently opposed to independence for Scotland.  But as I understand it, his defence against the charge of having lied about having obtained legal advice on the question of an independent Scotland’s position vis-à-vis the EU is that his and other SNP statements on the subject, arguing that Scotland’s existing status of EU membership (as part of the UK) would continue after independence so that there would be no need to apply as a candidate for membership, had all been seen and approved by the Scottish government’s legal advisers.  This can, I suppose, just about be squared with Salmond’s reply to Andrew Neil (“We have, yes, in terms of the debate”).  I conclude, somewhat reluctantly, that the charge of ‘lying’ can’t be made to stick, although the charge of having been deliberately misleading probably does.

But in all the excitement over what Salmond did or didn’t say and whether he lied, an important statement by the UK government on the question of Scotland and the EU seems to have been widely missed.  The only reasonably full report of it that I can find was in the Guardian of 1 November, at http://www.guardian.co.uk/politics/2012/nov/01/alex-salmond-scotland-eu-membership

The relevant passage reads:

“In a brief statement issued on Thursday, Westminster hinted strongly that its legal advice directly contradicted the claim by Scotland’s first minister, Alex Salmond, that, if Scotland voted for independence, it and the rest of the UK would need to reapply to join the EU as newly formed states.

“The UK government statement stressed that, unlike the Scottish government, it had obtained formal advice from its law officers and that Scotland would have to negotiate the terms of its EU membership with the UK and all other 26 member states.

It said: ‘This government has confirmed it does hold legal advice on this issue. Based on the overwhelming weight of international precedent, it is the government’s view that the remainder of the UK would continue to exercise the UK’s existing international rights and obligations and Scotland would form a new state.

‘The most likely scenario is that the rest of the UK would be recognised as the continuing state and an independent Scotland would have to apply to join the EU as a new state, involving negotiation with the rest of the UK and other member states, the outcome of which cannot be predicted.’

“Referring to statements by European commission president, José Manuel Barroso, and his deputy, Viviane Reding, that a newly independent country would be seen as a new applicant, it added: ‘Recent pronouncements from the commission support that view.’ “

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Brian

6 comments on UK government: an independent Scotland would have to apply to join the EU

  • Phil says:

    What I’m wondering about is whether there’s precedent for successor states, or secessionist states, inheriting treaty obligations from the parent state. (In terms of international law I’m assuming that EU membership can be considered as a treaty obligation, albeit an unusually complex and important one.) When Czechoslovakia broke up or the constituent republics of the Yugoslav Federation became independent states, were the new states automatically members of the UN or GATT signatories? Or did they have to go through the motions of reapplying – and, if Slovakia or FYROM had got up the UN’s collective nose, would it have been more than a case of going through the motions?
    I don’t know, but I’ve got a feeling the answers are No, Yes and Yes, in which case Salmond may have some backtracking to do.

    Brian writes: Thank you for posing these interesting and highly relevant questions. The same questions might be asked about the procedures for joining, or re-joining, the UN when the former Soviet republics became independent — bearing in mind that Byelorussia and Ukraine joined the UN as original members on 24 October 1945, together with the USSR, although both were at the time constitutionally part of the USSR! According to Wikipedia, “Upon the imminent dissolution of the USSR, in a letter dated 24 December 1991, Boris Yeltsin, the President of the Russian Federation, informed the United Nations Secretary-General that the membership of the USSR in the Security Council and all other UN organs was being continued by the Russian Federation with the support of the 11 member countries of the Commonwealth of Independent States” — a possible precedent for RUK if Scotland secedes, indicating that formal UN approval was not required for Russia to take over the seats in the UN organs previously occupied by the now defunct USSR. The remaining newly independent former Soviet republics were admitted as new members during 1991-1992. Yugoslavia, an original UN member, dissolved into five separate states, all of which were individually admitted to UN membership as new states between 1992 and 2000 (i.e. none of them automatically inherited the old Yugoslav seat). Czechoslovakia joined the UN as an original member in 1945. In a letter dated 10 December 1992, its Permanent Representative informed the United Nations Secretary-General that “the Czech and Slovak Federal Republic” would cease to exist at the end of that month and that the Czech Republic and Slovakia, as successor states, would apply for membership in the UN. Neither of them claimed sole successor state status and both were admitted to the UN as separate member states on 19 January 1993.

    Of course the legal position in regard to membership of the EU may differ from that of the UN: in the latter case no question of individual citizenship arises. But in reality “EU citizenship” is much less meaningful and carries with it much less entitlement or obligation than each EU citizen’s national citizenship, and apart from that the parallels with the UN seem close enough for the UN experiences in comparable circumstances to provide a convincing precedent. The UK government statement reported by the Guardian and reproduced in this post seems to be fully consistent with the UN precedents, and since it’s explicitly based on formal advice by the UK Law Officers and echoed by EU Commission statements (see the very informative accompanying comments on this post by Obiter J and Peter Harvey), I think it can be taken as authoritative, at least unless and until it’s formally reversed by an international court with jurisdiction in the matter. It’s difficult to see how Alex Salmond can continue to dispute it, and if he accepts it, the unionist cause will have acquired a pretty potent argument against Scottish independence — especially if Spain is serious about being determined to veto any Scottish application for EU membership.

  • ObiterJ says:

    On my blog I looked at this question:
     
    http://obiterj.blogspot.co.uk/2012/10/scotland-and-eu-no2-eu-membership.html
     
    The question of what international lawyers call “State Succession” was considered in a House of Commons library paper of 8th November 2011.  It is a complex and difficult issue and, to my mind, is best avoided by the pragmatic (realpolitik) approach of a negotiated solution.  Only the International Court of Justice could give a definitive ruling – a very lengthy and complex process.
     
    In my blogpost there is a link to the Commons paper.
     
    Personally, the Aidan O’Neill QC approach has much to be said for it.   If the matter ever got to the Court of Justice of the EU, would that court rule that Scottish citizens should be deprived of their EU Citizenship in this way?  The answer is very probably that it would not.  Thus, the CJEU would move to a position that allowed Scotland and rest of UK to remain in EU membership.
     
    I come back to this however – Why should the citizenry of bonny Scotland be asked to vote when the answer to this fundamental point is so unclear?

    Brian writes: Thank you very much for this. Please also see my exchange of views and information with Phil at http://www.barder.com/3819/comment-page-1#comment-157576.

  • Peter Harvey says:

    This situation is also exercising the minds of Spanish and Catalan politicians. We have an election in Catalonia on 25 November that was called mid-term so that the President could build on the demonstration held in Barcelona on Catalonia’s national day on 11 September and move the country towards independence.
    It has been become clear beyond doubt that the EU will treat Catalonia (and therefore Scotland) as a new applicant, subject to accession negotiations. Membership would require unanimous acceptance by existing members. This would require a referendum in France, though the question would not in fact arise because Spain would veto Scottish membership for its own internal reasons to do with Catalonia and the Basque Country.

    But even with that proviso, the whole thing is smoke and mirrors from the nationalists. Some clarity has come in Spain with the ‘Secretario de Estado’ (a political appointee who acts as a senior official) responsible for Europe writing to Viviene Reding on 2 October of this year stating that in his opinion Article 4.2 of the Treaty on European Union:

    “The Union shall respect the equality of Member States before the Treaties as well as their national identities, inherent in their fundamental structures, political and constitutional, inclusive of regional and local self-government. It shall respect their essential State functions, including ensuring the territorial integrity of the State, maintaining law and order and safeguarding national security. In particular, national security remains the sole responsibility of each Member State.”

    The EU cannot recognise a unilateral declaration of independence. Reding agreed. The relevant parts of the correspondence (in Spanish) are here.

    Scotland might not declare UDI (though Catalonia might). However, the argument is based on the principle that Catalonia acquired its membership of the EU through Spain’s signature of the treaty so if it leaves, even constitutionally, it will automatically lose its membership. This was stated explicitly by Ramon Prodi on 1 March 2004:

    “The European Communities and the European Union have been established by the relevant treaties among the Member States. The treaties apply to the Member States (Article 299 of the EC Treaty). When a part of the territory of a Member State ceases to be a part of that state, e.g. because that territory becomes an independent state, the treaties will no longer apply to that territory. In other words, a newly independent region would, by the fact of its independence, become a third country with respect to the Union and the treaties would, from the day of its independence, not apply anymore on its territory.

    “Under Article 49 of the Treaty on European Union, any European State which respects the principles set out in Article 6(1) of the Treaty on European Union may apply to become a member of the Union.”

    An application of this type requires, if the application is accepted by the Council acting unanimously, a negotiation on an agreement between the Applicant State and the Member States on the conditions of admission and the adjustments to the treaties which such admission entails. This agreement is subject to ratification by all Member States and the Applicant State.

    That has been reaffirmed in the last few days. Of course, the statement of a commissioner or even of the President of the Commission could be subject of appeal to the ECJ, but it would be a reckless politician who embarked on such a process given the opposition that could be expected. Unfortunately, it seems that reckless politicians are not in short supply. A Catalan Nationalist has announced that Catalans will be able to remain in the  EU because they will retain Spanish nationality, which under the Spanish constitution cannot be lost.

    Brian writes: Thank you very much for this fascinating material. I’m especially struck by your confidence that Spain (for obvious reasons) would definitely veto an independent Scotland’s application to join the EU. I think any idea of a Scottish UDI can be ruled out, although if there’s a majority for independence in the 2014 referendum but the consequent negotiations with the UK government on the terms of the separation were to break down, almost anything could happen. Please also see my exchange of views and information with Phil at http://www.barder.com/3819/comment-page-1#comment-157576.

  • ObiterJ says:

    Yes, I was aware of the Prodi opinion – in response, I think to a question from Eulend Morgan MEP.  Prodi’s opinion was before the inclusion (by Lisbon) of TEU At 50 by by which a member may leave the EU.  Under this article, the way out includes negotiation.  It MAY be that this is now the ONLY way out.
     
    It’s a mess and ought to be clarified.  How on earth can the voter be expected to exercise a responsible vote on this without clarity on such a key economic question?  Here is the problem with certain politicians in the UK who try to keep the voters like rhubarb – kept in the dark and “manure”.

    Brian writes: Thank you again. It seems to me that the opinions and precedents cited in your own earlier comment and the comment by Peter Harvey, plus the considered legal opinion in the UK government statement quoted in the Guardian report of 1 November and reproduced in this post (above), amount to as much clarification of the issue as can reasonably be expected. The implication must be that if Scotland secedes, the EU membership of the RUK (rest of the UK) will not be affected, but Scotland will have to apply as a new state and its application, which would require the unanimous approval of all 27 EU member states including the RUK, might well be vetoed by Spain because of the implications for Catalonia.

  • Peter Harvey says:

    Brian,
    It is clear that EU citizenship is different from national citizenship but it should not be dismissed too easily. It forms the basis for free movement within the EU. That is not, of course, the Schengen agreement; it is the right by which I, for example, coming from a non-Schengen country can live and work in Spain in just the same way as any Spanish citizen with only the slightest of limitations.* A state that left the EU would lose that right and its citizens resident in other EU countries would be left in a kind of limbo, as would those in the seceding state who owned property or businesses in the EU. Many people, like me, would be entitled to nationality of their country of residence but naturalising tens of thousands of EU residents all at once would be an administrative nightmare. Already, straightforward cases take years to resolve in Spain. Also, progress is being made in the EEAS towards common consular facilities so that an EU citizen from any country can be served in a third country by the consulate of any member state. A seceding state outside the EU would naturally lose that facility.
    *Ineligibility for certain public employment such as the diplomatic service or police, voting rights limited to EP and municipal elections, and the theoretical possibility of being returned to the UK for reasons of Spanish national security. New EU residents cannot claim benefits immediately but must be employed or have funds. Possibly others but nothing drastic at all.

    Brian writes: Thank you, Peter. I certainly didn’t mean to suggest that EU citizenship is unimportant or without consequence. All I was saying is that it’s different in kind from the national citizenship also possessed by every EU citizen. For one thing, a British citizen (for example) who has no other national citizenship can’t be deprived of it because it’s contrary to international law to make a person stateless. The same can’t apply to EU citizenship. I’m not convinced that the EU Court would necessarily rule against depriving Scots of their EU citizenship if and when Scotland became independent during the interval between independence and the admission of Scotland as a new member state. It would create too many anomalies for a group of people to continue to be regarded as EU citizens while the country of their national citizenship had no agreed status within the EU. As you have written in another place, it looks fairly clear that on independence Scotland would have to apply de novo for membership as a new state. That might not rule out informal agreements before independence on the main matters to be settled for separate Scottish mermbership on independence, with perhaps some kind of agreed fast-track procedure for its admission. But would Spain go along with that? Indeed, would RUK (!)?

  • Richard says:

    Brian,
    To be parochial, the stushie in Scotland was over Salmond’s giving all and sundry the impression that he had advice on EU membership but refused to divulge it because of the ministerial code ( which he was in the process of changing) and resorting to the courts to resist the FoI challenge.  When it emerged via Nicola Sturgeon that no such advice existed, there was outrage, much of it justified because of the dissimulation.  In common with most observers, I had not doubted that advice had been taken; my doubts were whether it said what he claimed it did and when the truth emerged that he was taking legal action to conceal the absence of advice, he was diminished further in my eyes.  His position was consistent with the approach the SNP has been taking over other crucial matters (to us in Scotland) where he has been uttering calming words, with little substance.

    On the question of an independent Scotland’s membership or otherwise of the EU, my guess is that it would come down to a political decision, doubtless with a legal cloak.  I’m inclined to the view that should the UK government persist in its silly games, Scotland’s application would be waved through to teach the English (primarily) a lesson.

    Brian writes: Thank you for this. To be fair to Salmond, his assertion that he had received legal advice on the EU membership question was carefully limited and circumscribed by reference to ‘this debate’, and if the Scottish government’s statements about an independent Scotland not needing to apply de novo for Eu membership had been seen and approved by its legal advisers, his answer to Neil could just about be justified, although certainly wide open to misinterpretation. As to how the EU organs, such as the Commission, would respond to a Scottish claim to remain as a member of the EU on independence, it seems to me inconceivable that it would be “waved through” whether “to teach the English a lesson” or for any other reason. Because of the precedent that would set for Catalonia and the Basque country, I can’t see Spain, for example, “waving through” a Scottish claim not to have to apply for membership from square one. Ditto in the UN, where the precedents are fairly clear. Moreover, the admission or acceptance of Scotland as a separate member (whether also a “new” member or not) would require so many significant adjustments to so many EU arrangements (on voting, appointment of a Commissioner, joining the Euro and Schengen, budget contribution, effect on the UK rebate, and a hundred more consequential matters to be decided) that it would almost certainly entail a treaty amendment which I assume would have to be approved unanimously — and therefore subject to any member’s veto….

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