Wednesday, 21 December 2011

20 years out of date?

I've been busy in recent weeks getting the first piece of written work for my PhD finished. It is now in, I've caught up with my sleep and so back to regular, I hope, blogging.

And it is appropriate, for this first blog back, to focus on a subject that I am starting to understand much, much better than before: an independent Scotland's relationship with the EU, in particular the legal aspects.

Jim Sillars was in the papers yesterday talking about the SNP's policy on the EU and whether or not an independent Scotland would be a member of the EU. Jim Sillars was probably the first SNP politician I ever spoke to. I remember doing an interview with him as part of a school project in the immediate aftermath of his victory in the Govan by-election. He is someone who could, and did, inspire. I left the interview not yet persuaded, but perhaps with a few seeds sown in my mind. I've still got a copy of the interview lying around somewhere, if I can ever find a cassette recorder to play it again.

But back to the EU. Jim spends about a third of his article setting out why he thinks an independent Scotland might not be a continuing member of the EU. Somewhat ironically, given that he criticises the SNP policy on Europe for being 20 years out of date, the legal arguments he uses are themselves 20 years old and now very definitely out of date.

One of the most significant cases in EU law in recent years, dealing with the relationship between international law and EU law, was a case called Kadi. This was the subject matter of my Masters earlier this year.

Kadi was about a UN Security Council sanctions regime to freeze the assets of people associated with the Taliban and Al Qaeda. To cut a long story short, the European Court of Justice held that the measures to put the regime in place EU-wide breached general principles of EU law (basically Mr Kadi's fundamental rights) and were thus illegal, even though they had their origin in a Security Council resolution i.e. the very pinnacle of the international legal order. It was the ECJ declaring (or, in reality, confirming) the autonomy of the EU legal order from international law.

What does this mean for Scotland's membership of the EU? Simply, that the decision will not be taken on the basis of international law, state succession or the Vienna Conventions. It will be taken on the basis of EU law and that can be enforced by the European Court of Justice.

In recent years, there have been some specific developments in EU law that are of relevance. First, we have a new 'voluntary withdrawal' clause in the Lisbon Treaty. This, broadly speaking, requires either (i) negotiation or (ii) a minimum 2 year period, before a Member State can leave the EU. Link this to the Greenland precedent (whereby part of a Member State had to negotiate to withdraw from the EU) and you get the picture. It is not possible for a unilateral act of a single Member State or part of a Member State to result in the immediate withdrawal of that Member State (or part) from the EU. Given this position, to claim, as some still do, that Scotland would cease to be part of the EU on independence day is, if I can revert to political-speak, lacking in credibility. Scotland would continue to be part of the EU, and negotiations on voting weight, number of MEPs etc would be conducted from within the Union.

Second, the development of EU citizenship as a 'fundamental status' for Member State nationals in the EU. This is a fast-moving area of EU law, with cases such as Rottmann and Ruiz Zambrano pointing the way.  It will be the focus of my second year of studies and so I will restrict my comments. However, again, I find it difficult to conceive of a situation whereby the Court of Justice would allow the removal of EU citizenship rights from 5 million Scots en masse. On Independence Day, Scotland will still be part of the EU and Scots will still be EU citizens.

A few final thoughts. First, Jim talks about the option of being a member of the EEA. However, the non-EU members of the EEA (Norway, Iceland and Liechtenstein - they are described as the EFTA states) have the vast majority of the obligations of EU membership but without the opportunity to influence those decisions. The EEA agreement, at Article 6, requires that the terms of the agreement are interpreted in conformity with the case law of the European Court of Justice, but the EFTA states do not have judges on the ECJ. Article 7 requires that the EFTA states implement EU regulations and directives relating to the single market, and again, those states don't have representation in the Council or European Parliament where that legislation is developed and decided. The implementation of the single market is where a significant proportion of EU legislation and EU case law is focused and to subject ourselves to the laws without the opportunity to be part of making those laws seems far from ideal (and indeed a significant loss of sovereignty). The EFTA states also make a financial contribution on the same basis as EU members, amounting to just under 3% of the EU budget. Indeed Norway contributes over €200 million to projects to reduce social and economic disparities in the EU.

The EEA agreement excludes fishing and agriculture and also areas like foreign relations and defence co-operation and the Area of Freedom, Security and Justice (including the Schengen Agreement for open borders). However, EFTA members have signed up to Schengen. It is also important to recognise that in many areas outside the single market the national veto remains, for example over foreign relations, taxation and defence co-operation (and indeed over Treaty amendments). Scotland in the EU would not have to sign up to Schengen and would retain the veto over these other key policy areas and future Treaty changes.

Finally, and briefly, another misapprehension apparent in Jim's article is that any agreement on fiscal co-operation between the eurozone states would necessarily involve an independent Scotland. As I have written elsewhere, EU law makes crystal clear that Scotland cannot be required to join the euro and it is also clear that any further economic integration, if it comes, would only be required of the eurozone countries.

Saying Scotland should join the EEA may make a good soundbite or newspaper headline, but when you look at the substance and the legal basis for the agreement, it actually means Scotland retaining most of the obligations without any corresponding representation. I don't think that is a good option or a good deal. That's why independence in the EU remains the right choice for Scotland's future.


  1. I am afraid my opinion of long time standing is that Jim Sillar's problem with the SNP is tht they did not elect him leader

  2. It does however mean being free of that horrendous guddle commonly known as the Common Fisheries Policy.
    It's because of this that I am genuinely of two minds on the matter. Scotland's Fisheries are probably one of the top 5 most important industries in Scotland (beyond Whisky, Tourism & Finance) and as we've seen at the moment, are not exactly helped by the CFP. Of course, the Scottish Government have done a stirling job at the recent talks, and would be able to do so much more come independence, but a part of me cannot help but think how much better it would be if we were on an equal footing with those nations with whom we actually compete for fishing stocks with, namely Iceland and the Faroe Islands…

    Of course, you're almost certainly right, and Scotland would be better off to stay in the EU and not secede from it post-independence into a sort-of Norway-like state…
    I do like that idea that the Danes were discussing recently, about asking Scotland to join the Scandinavian Bloc…that has a lot of appeal to it...

  3. I really don't see the point of Scotland going to all the trouble of becoming independent from the EU only to become part of the United States of Europe because, be honest, that's what so many MEPs are aiming for. So many laws and decisions are made by faceless Eurocrats in Brussels about something that is so far away that they might as well be on the moon. I am sick and tired of the EU dictating to us and trying to control everything we do. I know many SNP councillors, MSPs and supporters who share my views on the EU. One SNP councillor said to me that the EU is far too big, far too expensive and very corrupt. I think the UK Government should hold a referendum as to whether the electorate want to remain part of the EU or not. When Scotland becomes independent there should also be a referendum on EU membership. I believe that Scotland should be independent and that only the Scottish Government should make the laws governing Scotland. If I thought for one second that we were going to be frogmarched into the € and United States of Europe I really don't think I would vote for independence because it would be like jumping out of the frying pan and into an abyss. Just look at the state the EU is in now and look at the €. Should we really be paying billions just to subsidise and pay off other countries debts? NO!

  4. I think you may have confused "EU law" with a decision on European Convention of Human Rights (ECHR). They are different things.

    I am not familiar with the Kadi case, but it looks very much like an ECHR decision. Staying or leaving the EU would have no direct effect on the applicability of ECHR.

  5. Does the primacy of EU law mean that the extent of our territorial waters on independence will be decided not by international law but by EU law?

  6. The Kadi case is definitely one by the ECJ. If you follow the link you will get to the actual judgment of the court.

    EU law will determine our membership of the EU, but not things like national boundaries.

  7. Hi

    I just saw on BBC News Angus Macleod of The Times saying that Cameron's intervention today was not spontaneous.

    he said the Coalition government's cabinet subcommittee on Scotland strategy headed by George Osborne and Danny ALexander has done a lot of preparation work to take on the SNP over the referendum.

    heads up anyway.

    Remember a strong well-run well-resourced ground campaign organisation is the key to victory. Not media/legislative/parliamentary shenanigans.


    Today's Times: "Chancellor at the helm to save Union"

    I came across this interesting article on Osborne too


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