A few harsh facts of life on an independent Scotland's EU membership

Of all the weeks for Willie Rennie not to have a question at FMQs, this was probably the worst. While Johann Lamont and, particularly, Ruth Davidson gave Salmond just enough wiggle room over the bizarre EU legal advice issue, Willie had displayed a much more forensic approach on Tuesday. Here's the latter part of the exchange. 

This is a very serious matter, Presiding Officer, because the First Minister has not cleared up the issue. He said,

“Everything that we have said is consistent with the legal advice we have received.”
He said “received”, and the context was that he was talking about the law officers. The First Minister has not cleared up the matter. I urge him to come forward and clarify exactly what he said, because he has not done so, so far.

The Presiding Officer: First Minister, if you wish, you can make a further brief comment.

The First Minister: I admit that Willie Rennie did not add some of the descriptions that other people have used, but it is not a good idea for him to miss out the phrases 
“in terms of the debate”
and
“Well you could read that in the documents that we’ve put forward, which argue the position that we’d be successful.”

As I have pointed out, all the documents that I have listed were underpinned by legal advice from our law officers. That is different from the specific legal advice on a specific matter that the Deputy First Minister announced to members this afternoon. Any fair-minded person—I am aware that that excludes a number of people—would consider that the matter has been well and truly cleared up by the full transcript of the interview.

I think what Willie has successfully done is to show that Salmond and the SNP have gone out of their way to create the impression that there was some legal basis, based on current legal advice from proper Government law officers. While Salmond can dissect the actual words he used to get himself off the hook, there's no doubt that the ordinary Scot, watching that interview in March, would have thought they had that advice. That is the crucial point. Whether the Ministerial Code has been breached is pretty much irrelevant. It is more of an irritation that Salmond was prepared to blow our hard earned taxes taking the Information Commissioner to court so he could keep the lack of legal advice secret. If this sort of situation arises again, I could recommend that he picks up the phone and speaks to Eilish Angiolini or Frank Mulholland and asks them nicely for their permission to reveal the truth.

Labour have handled this really badly. Their own record, of course, on legal advice, is not exactly squeaky perfect. I'm sure we can all remember dramas over the Iraq War, after all. By using the "lie" word in this instance, they've given Salmond something to throw back at them. This needs to be about the overall strategy of the SNP and the fact that they tried to create an impression of something that was not the case and give themselves enough space to suggest that other people might have misunderstood them. It's pretty sleekit, when you come to think about it, and has left a massive hole in Salmond's credibility. People must not be allowed to forget this.

Ultimately, though, the question of the terms of an independent Scotland's entry into the EU owes as much to realpolitik as the letter of the law. How do we know? Well, it's been looked into before. David Clark was Robin Cook's Special Adviser between 1997 and 2001 and he has written on his blog, Shifting Grounds, about the advice on the issue that was obtained then.

In summary, Scotland would have no automatic right to be admitted to the European Union as a successor state, although it is possible that it could be negotiated. The price, however, might be substantial?

First, there is no existing procedure for handling a breakaway from an EU member state. The Council of Ministers would therefore need to improvise one according to its own design.

Second, an independent Scotland could either be considered a successor state, inheriting the United Kingdom’s rights and status, or a new applicant, but would have no automatic right to the former. A political decision would have to be taken by the Council of Ministers acting unanimously.

So, one veto and we're scuppered.


Clark's analysis of  the likely negotiating process makes it sound a bit like trying to herd 27 cats each with its own unique cocktail of sour grapes and self interest. He argues that an independent Scotland would not be negotiating from a position of strength.

I personally have no doubt that Scotland would be allowed to join the EU. But I also have no doubt that the price would be a high one. Spain would be the first country to object to Scotland automatically inheriting the UK’s rights and status. It would be determined to prove that separatism doesn’t pay in order to deter its own secessionist movements in Catalonia and the Basque country. Other countries, similarly concerned to avoid any precedent that might compromise their own integrity, would be certain to support the Spanish position.

They would also be joined by a larger group of countries that have long resented the UK’s opt outs and budget rebate and would relish the opportunity to deny them to Scotland. Like a new applicant, they would insist on Scotland accepting the full range of EU obligations on things like the single currency, border controls and budget contributions.

You will have to read the article yourself to see his rather surprising conclusion. Even if Alex Salmond were prepared to sell out to that extent, keeping his party and a fair chunk of those who support independence behind him would be a challenge. Of course, he wouldn't have to declare his hand until after the vote, but I'm sure that won't stop people asking him the question before then.