The Scottish TV leader debates have been revealing. Where the SNP have had to defend their actual government record, Nicola Sturgeon has come over as tetchy, and the audience skeptical.
However, the point that gripped me was that Scotland’s First Minister talked of a London Tory government taking Scotland out of the EU, against the will of the Scottish people. It is my belief that during last year’s referrendum, YES campaigners seemingly sought to hoodwink the electorate about the potential risks; and thus inhibit people from making an informed decision.
The half-truths about currency and expected North Sea Oil revenue revealed a tendency to adopt the most optimistic outcome as not only likely, but almost inevitable. The issue of EU membership is another area where the Scottish government, the SNP, and the official YES campaign sought to pour sand in the eyes of the electorate, and the SNP keep on doing so.
Scotland has been a member of the EU, and its predecessor organizations, for 40 years; but it has been so as a member of the United Kingdom, and should Scotland become independent, then it will be rUk that is the successor state that inherits the existing membership, and terms of membership, including the opt-outs negotiated by previous UK governments, over, for example, rebates, and Schengen.
If the UK seeks to leave the EU, then the whole of the UK would leave the EU, and any part of the UK subsequently seeking to re-enter the EU would need to apply anew.
There is no provision in the existing law and treaties for deciding whether Scotland would be permitted to continue with EU membership without interruption, and on the same terms as the UK, or to allow Scotland to stay in the EU if rUK leaves.
The YES campaign took a very bullish approach to this:
As explained in its “independence roadmap” and in its white paper “Scotland’s Future: Your Guide to an Independent Scotland”, the Scottish Government proposes to agree the terms of Scotland’s continued membership of the EU between the date of the referendum, and the proposed date of independence on 24th March 2016.
In that way questions relating to our ongoing EU membership can be settled before we become independent. Scotland already is part of the EU – so there is no doubt that we meet all the requirements for membership, and with our energy and fishing resources it is clearly common sense, and in the interests of the EU, that Scotland’s place in the EU continues seamlessly.
Even the UK government’s expert European legal adviser has accepted that this timetable is “realistic”. So Scotland’s EU membership will be secure by the time we are independent.
However, in a letter from Viviane Reding, Vice-President of the European Commission sent to Christina McKelvie, Convener of the Scottish Parliament’s European and External Relations Committee this March, her official view spelt out that:
The Treaties apply to the Member States. When 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 new 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 2 of the Treaty on European Union may apply to become a member of the EU. If the application is accepted by the Council acting unanimously after consulting the Commission and after receiving the consent of the European Parliament, an agreement is then negotiated 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.
In the event of independence the Scottish government would therefore need to negotiate, and seek agreement from all 28 existing members. Many of these member countries may favour the approach advocated by the Scottish Government, but it is reasonable to suppose, as Ruairi Quinn, former president of EU’s finance council has predicted, that, for example, Spain and Belgium might ‘veto an independent Scotland’s EU membership’
Certainly, the continuity of Scotland’s EU membership cannot be guaranteed, and the terms of its future accession would need to be negotiated. Any negotiations may well also reveal that Scotland, divorced from the UK, does not have a strong bargaining position; and some areas might be highly problematic, and – for example – commitments to keep an open border with England may conflict with requirements that other EU states might seek relating to Scotland joining the Schengen area.
Of course for those committed to independence, any risk, and almost any cost, will be justifiable. This is also true of the SNP’s claim that it would be possible for Labour to be routed in Scotland, and yet the SNP still be able to wave a magic wand to keep the Conservatives out of office. Despite some previous precedents, if the Conservatives are the largest party,the current constitutional convention would give them the momentum to form a minority government. The SNP seem to be weeping crocodile tears about how dreadful a future Conservative government in Westminster would be, while their supporters wage a shrill and aggressive campaign demonising Scottish Labour as “the Red Tories”, and promising to “drive them out”, creating the conditions for Conservative victory at the UK government level.
Without a number of victories for the Scottish Labour Party, then it is highly likely that it will be David Cameron and not Ed Miliband who forms the next government. If Scottish voters want a Labour government, they are going to have to vote for one.