Clarifying EU Membership: HC 643 The foreign policy implications of and for a separate Scotland (Source: UK Government)

Published by UK Govt (17th Oct 2012)

 

There has been conflicting opinions recently regarding an Independent Scotland’s membership status of the EU.  Below, in a document written on 24th Sep 2012 and subsequently published by the UK government on 17th Oct 2012, Graham Avery, Honorary Director-General of the European Commission clarifies matters.  This may not be the final word but it is likely to be the clearest legal and procedural advice available prior to the 2014 referendum.

I have taken the liberty of highlighting in bold some significant parts of Mr Avery’s statement.  They effectively torpedo any idea that should Scotland wish to join the EU it will have to apply – as a non-member state – post-Independence.  There is no ambiguity here. That idea is dead in the water.

It is also worth flagging up how the process will affect the Independence Referendum Bill and subsequent White Paper once it passes through Holyrood next year.  Mr Avery’s statement is clear that should the Scottish Government wish for Scotland to accede from the UK as a full EU member state it will have to do so after the 2014 referendum and by the conclusion of negotiations between Edinburgh and London.

This is highly significant.  It means that the decision on whether or not Scotland joins the EU is now out of the hands of the Scottish people and will be taken by the Scottish Parliament in 2013.  The Scottish Parliament’s EU decision will be part of the package we vote for in 2014 and unlikely to be blocked by the EU (on condition of a successful conclusion of negotiations between Edinburgh and London).

The implications of this are huge.  Should Scots prefer non-membership of the EU, or, alternatively, membership of EFTA alongside Iceland, Norway, Switzerland and Lichtenstein, then an amendment to the Independence Bill would need to be made in Parliament during 2013.  Otherwise folks, we go in.

Mr Avery’s statement also makes clear that joining the EU does not mean automatic membership of the Eurozone.  This would be subject to further negotiations post-Independence while Scotland is a sitting member of the EU.  This means the currency of an Independent Scotland, at least in its early days will either by the pound sterling or an independent Scottish pound.  This too is almost certainly to be decided by the Scottish Parliament in 2013 and included in the White Paper we vote on the following year.

On the plus side this means clarity for the 2014 referendum.  It also means the current Scottish Parliament will decide on EU membership and currency up to 2016.  After that? Everything is up for grabs as these decisions can be endorsed or reversed , depending who wins a majority in the 2016 election.

NOTE: The interpretations drawn from Mr Avery’s statement are my own. I’m not a lawyer and invite an alternative reading. The important statement from the EU’s Honorary Director-General is published in full below for our reader’s own perusal.

KW

HC 643 The foreign policy implications of and for a separate Scotland (Source: UK Government)

By Graham Avery, Senior Member of St. Antony’s College, Oxford University, Senior Adviser at the European Policy Centre, Brussels, and Honorary Director-General of the European Commission

1. The object of this note is to clarify the procedure by which, following a referendum in which the Scottish people vote in favour of independence, Scotland could become a member of the European Union. Although the note touches on wider issues such as the terms of Scotland’s membership and the attitude of the EU member states and institutions, it focuses on the question of the procedure for Scotland’s accession.

2. In the debate on Scottish independence it is natural that opponents tend to exaggerate the difficulties of EU membership, while proponents tend to minimise them. This note tries to address the subject as objectively as possible. In summary it argues that:

· Arrangements for Scotland’s EU membership would need to be in place simultaneously with independence

· Scotland’s 5 million people, having been members of the EU for 40 years; have acquired rights as European citizens

· For practical and political reasons they could not be asked to leave the EU and apply for readmission

· Negotiations on the terms of membership would take place in the period between the referendum and the planned date of independence

· The EU would adopt a simplified procedure for the negotiations, not the traditional procedure followed for the accession of non-member countries

3. The author a Senior Member of St. Antony’s College, Oxford, Senior Adviser at the European Policy Centre, Brussels, and Honorary Director-General of the European Commission. He worked for 40 years as a senior official in Whitehall and Brussels, and took part in successive negotiations for EU enlargement (see biographical note at end).

4. The EU has no historical precedent for dealing with Scottish independence. The following cases are relevant, but hardly constitute precedents:

· Greenland joined the EU in 1973 as part of Denmark. Later it obtained home rule and voted to leave the EU. This led to a decision of the EU in 1989 removing Greenland from the EU’s customs territory and legal framework.

· In March 1990 the German Democratic Republic elected a new government committed to reunification; in October 1990, when it joined the German Federal Republic, its 16 million people became members of the EU.

· As a result of Czechoslovakia’s ‘velvet divorce’ the Czech Republic and Slovakia became independent states in 1993. Slovakia applied for EU membership in 1995, the Czech Republic in 1996, and they both became members in 2004.

5. German reunification represents in some ways the opposite of Scottish independence: it was enlargement without accession, whereas Scottish independence would be accession without enlargement. Nevertheless it is pertinent for the Scottish case from the point of view of procedure. Under pressure of the date for reunification, the EU adopted a simplified procedure for negotiation under which the Commission explored with Bonn and Berlin the changes needed in EU legislation, and its proposals were approved rapidly by the Council of Ministers and European Parliament. No EU intergovernmental conference was necessary because there was no modification of the EU Treaties.

6. However, for Scotland a modification of the EU Treaties would be necessary, if only to provide for Scottish representation in the EU institutions (number of members of European Parliament, number of votes in Council of Ministers, etc.).

7. At this point we need to consider the timing and procedure for such Treaty changes. Scotland’s EU membership would need to be in place simultaneously with Scottish independence. For practical and political reasons the idea of Scotland leaving the EU, and subsequently applying to join it, is not feasible. From the practical point of view, it would require complicated temporary arrangements for a new relationship between the EU (including the rest of the UK) and Scotland (outside the EU) including the possibility of controls at the frontier with England. Neither the EU (including the rest of the UK.) nor Scotland would have an interest in creating such an anomaly.

8. From the political point of view, Scotland has been in the EU for 40 years; and its people have acquired rights as European citizens. If they wish to remain in the EU, they could hardly be asked to leave and then reapply for membership in the same way as the people of a non-member country such as Turkey. The point can be illustrated by considering another example: if a break-up of Belgium were agreed between Wallonia and Flanders, it is inconceivable that other EU members would require 11 million people to leave the EU and then reapply for membership.

9. It follows that negotiations on the terms of Scottish membership would take place in the period between the referendum and the planned date of independence. We do not know at this stage how long that period would be; complicated negotiations between Edinburgh and London would have to take place; but we may guess that not more than one or two years be needed.

10. The main parties in negotiations for Scottish accession to the EU would be the member states (28 members after Croatia’s accession in 2013) and the Scottish government (as constituted under pre-independence arrangements). It may be noted that in this situation the government of Scotland – not yet an independent state – could not in fact submit an application for EU membership under Article 49 of the Treaty. But it could indicate its wish for Scotland to remain in the EU, and this would lead to negotiations in an appropriate framework to prepare the necessary modification of the Treaties. Proposals would be submitted for approval to the EU institutions and the Parliaments of 28 member states and of Scotland, and would come into force on the date of Scottish independence.

11. As in the case of German reunification, the EU would adopt a simplified procedure under which the Commission would be asked to conduct exploratory talks with Edinburgh, London and other capitals, and submit proposals. Although an intergovernmental conference would be needed, it would not be of the kind that handles accession negotiations with non-member countries. A protracted accession procedure of that type, with detailed scrutiny of 35 chapters of the EU’s acquis, would not be necessary in the case of Scotland, which has applied the EU’s policies and legislation for 40 years.

12. Let us return to the question of the changes in EU legislation necessary for Scottish membership. We need to distinguish here between changes in the EU Treaties (primary legislation) and changes in EU regulations, directives, decisions etc. (secondary legislation). The changes in the basic Treaties for institutional reasons should not be problematic: for Scotland they could easily be calculated by reference to member states of comparable size (Denmark, Finland & Slovakia have populations of 5-6 million). The number of votes in the Council for the remainder of the United Kingdom would not need to be adjusted (with 60 million it would still be comparable to France & Italy) although its members of Parliament might need to be reduced in number in order to respect the Parliament’s limit of members.

13. In accession negotiations with non-member countries the EU has always strongly resisted other changes or opt-outs from the basic Treaties; at this stage it remains to be seen what might be requested by Scottish representatives concerning the euro or the Schengen area of free movement of persons. Without embarking here on a discussion of the implications for Scotland of these policies, we may note that although new member states are required to accept them in principle, they do not become members of the eurozone or Schengen immediately on accession, and are not permitted to do so. Joining the euro or Schengen depends on a series of criteria that are examined in the years following accession.

14. Let us turn now to the secondary legislation. Although a large number of technical adaptations would be needed in order for Scotland to implement EU law, the vast majority of these would be uncontroversial since they would be based on the existing situation. In respect of EU policies and legislation, Scotland’s citizens have a legitimate expectation of the maintenance of the status quo in terms of economic and social conditions. There should be no need, for example, to re-negotiate Scotland’s application of European policies in fields such as environment; transport, agriculture, etc.: it would suffice to transpose mutatis mutandis the situation that already exists for Scotland within the U.K. Since the rest of the U.K. could be affected, that process would require discussion and clarification with London, but it would have little interest for other member states who would be content to consider the question of secondary legislation on the basis of a report and proposals from the Commission.

15. Here again, it remains to be seen whether Scottish representatives would request changes in the application of EU rules and policies, for example the fisheries policy or payments into the EU budget. In general one would expect these matters to be solved on a temporary basis by means of a roll-over mutatis mutandis of existing arrangements for the U.K. until the relevant EU rules come up for revision, for example the renegotiation of fishing quotas, or the multi-annual budgetary framework. Such solutions would, in fact, be in Scotland’s interest since it could expect to obtain a better deal as a member state with a full voice and vote in the EU than in the pre-independence period. However, the adaptation of the British budgetary rebate could require difficult negotiations between Edinburgh and London as well as with Brussels.

Biographical note

Graham Avery is Senior Member of St. Antony’s College, Oxford University, Senior Adviser at the European Policy Centre, Brussels, and Honorary Director-General of the European Commission. He has given evidence on a number of occasions to Committees of the House of Commons and the House of Lords

In the Ministry of Agriculture, Fisheries and Food in London (1965-72) he headed the unit responsible for negotiations for accession to the EC, and later (1976) served as Private Secretary to two Ministers. In the European Commission in Brussels (1973-2006) he worked in agricultural policy, foreign affairs, and the cabinets of the President and other Commissioners, and took part in successive negotiations that enlarged the EU to 27 members. His last post was as Director for Strategy, Coordination and Analysis in the Directorate General for External Relations

He has been Fellow at the Center for International Affairs, Harvard University, Fellow at the Robert Schuman Centre for Advanced Studies of the European University Institute, Florence,

Visiting Professor at the College of Europe, and Secretary General of the Trans European Policy Studies Association

In the Queen’s New Year Honours 2012 he was appointed Companion of the Order of St. Michael and St. George (CMG) for services to European affairs.

24 September 2012

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  1. muttley79 says:

    Interesting. It would certainly remove some of the fears about going into the unknown that the No campaign bring up. When would the Scottish Parliament vote on the EU in 2013, before or after the White Paper on independence is published?

  2. Macart says:

    Since this document has been in circulation for the past several weeks, it does beg a question or two.

    Were the msm in Scotland aware of its existence?
    Were the unionist parties in Holyrood aware of its existence?

    Seems the advice the SG received and published has been consistent with the views outlined in the document above. The opposition have spent some considerable amount of time trying to derail this issue of late and cast doubt upon both Alex Salmond and the SNP stance on Europe. If they were aware that this document existed and yet proceeded upon their highly aggressive course of the past two weeks I would say that only one of two conclusions may be reached. Either they deeply disagree with the document and its author or, and this is far more likely, the msm and the no campaign decided to utterly ignore its existence and prosecute the most cynical and hypocritical of campaigns against the SG.

  3. Billfaedenny says:

    Brilliant! At last some clarity on the EU membership issue and from the Honorary Director-General of the European Commission no less.Could someone please send a copy to those unionist scaremongers Johann Lamont (large print please), Willie Rennie, and Ruth Davidson.

  4. @Macart Astonishingly, BBC Radio Scotland News is still ignoring it!

    1. Macart says:

      Spooky but true. For almost two weeks the msm have bombarded Alex Salmond, the Scottish Government and supporters of the YES campaign with the issue of trust over the FM and SGs EU position. As soon as this paper surfaces, the silence on the issue is deafening.

      I’d like to use terms somewhat stronger than cynical hypocrites, but sinking to the level of the opposition never helps. 🙂

  5. Simba says:

    What puzzles me is what happens to the UK when Scotland dissolves the union of 1707. Doesn’t England revert to its pre-1707 status (plus N. Ireland) and therefore be in the same situation as Scotland? Everyone seems to assume that the UK will carry on merrily on its way with business as usual but can there be a UK without Scotland? I should grateful for some enlightenment.

    1. pmcrek says:

      @Simba

      It is an interesting question, however just as Scots have EU citizen status so does everybody else in the UK. I believe the biggest sticking point for rUK in event of independence is re-negotiating practically everything with the EU, as the rUK current settlement in the EU is based on the inclusion of Scotland, then the formula’s will all change and everything will have to be approved.

    2. My understanding would be, following the end of the 1707 Union between Scotland and England, that Great Britain would be no more, but the UK would continue, albeit as the United Kingdom of England, Wales and Northern Ireland. Assuming Wales or Northern Ireland wish to stay in, of course.

    3. Iain Hill says:

      Thank you. My fingers are sore typing out this self evident truth again and again. United Kingdom is a state formed out of 2 former kingdoms. When 1 of the 2 leaves, the rump is a single kingdom, a new state. Are the no campaigners illiterate, or only vicious and cynical?

      1. Doug Daniel says:

        I think Paul Cockburn is correct here. The 1707 Acts of Union created an entity known as the Kingdom of Great Britain. This was superseded in 1800 by the Acts of Union between the Kingdom of Great Britain and the Kingdom of Ireland which created the United Kingdom of Great Britain & Ireland, which was in turn modified in 1927 to the United Kingdom of Great Britain & Northern Ireland.

        So essentially, the “United Kingdoms” in question are actually those of Scotland, England and Northern Ireland, as set out by the 1927 Royal and Parliamentary Titles Act which did some constitutional housework after the 1921 Anglo-Irish Treaty. The UK won’t cease to exist after Scotland becomes independent any more than it ceased to exist when the Irish Free State was created or Ireland declared itself a republic in 1948.

        All of which doesn’t really mean a thing to negotiations for independence – it just means rUK will have to choose whether to call itself United Kingdom of England & Northern Ireland or United Kingdom of England, Wales and Northern Ireland. The actual status of Wales in the UK (it was annexed by England in the 15th century, hence why the 1707 acts were between two countries not one, and it is a Principality rather than a Kingdom) is another debate entirely! Although it would surely be political suicide to exclude Wales from the new UK moniker…

  6. Galen10 says:

    Kevin, why do you assume the SG would have to do the things you say in 2013? It seems to me that point 9 of Avery’s paper suggests that the negotiations on accession will only take place POST a Yes vote in 2014, i.e. once the Scottish people have voted for independence, the detailed negotiations with the EU (and presumably Westminster?) will begin.

    The significance of HC 643 is that it blows another unionist scare story out of the water. The situation with the break up of the UK vis a vis the EU is “sine qua non” – there is really no other precedent that quite fits as Avery notes. The SMART money has always been on the EU and the other members accepting that both Scotland and the rump UK would remain members, and that negotiations would be necessary to work out details (such as an increase in the number of Scottish MEP’s and reduction of those for rump UK).

    Of course what sticks in the craws of the unionist establishment is that if their now demolished scare story was true, and Scotland were to be treated as a “new” state, then it would not be responsible for any share of the former UK’s debt…. that might actually be worth following through on! ;-p

    1. bellacaledonia says:

      Prior to publication of the Referendum Bill and White Paper this is speculation. In 2014 by voting YES we will also be voting to endorse the contents of the Independence White Paper. My guess is that it is very unlikely that the SG will not set forth their preferred settlement positions on international treaties, EU membership and transitional currency in the White Paper so people know what they are voting for in 2014. It makes sense.

      KW

  7. Surely there’s a worry here that some existing EU governments (eg, Spain) might make it difficult for Scotland, for fear of encouraging other parts of the current EU to demand full self-determination?

    Still; we’re all rather blind on this, thanks to a lack of any precedents. Exciting, eh?

    1. Soixante-neuf says:

      There were a bunch of Flemish separatists at the march in Edinburgh last month. There’s quite an appetite for splitting Belgium into Flanders and Wallonia. Suppose that happened, and bear in mind that nobody can say it won’t, do you seriously think Brussels would be ejected from the EU?

      And bearing all that in mind, do you think there’s any serious appetite in the EU for creating a precedent that might oblige them to throw Brussels out one day soon?

  8. John Souter says:

    I would argue , until such time as a positive result is confirmed by the referendum, no position can be decided based on party politic policies on any major treaties or membership obligations under negotiation until such time as a firm framework acceptable to both parties are drawn up then laid before the people for acceptance or otherwise.

    If the SNP consider it’s in our best interest to join the EU, NATO or any other treaty organisation or obligation they must act throughout the period between referendum, independence and first general election as an interim caretaker government.

    The SNP have earned the right to take Scotland to independence, as yet they have to earn the right to govern an independent Scotland and meet the responsibilities and competence demanded by a sovereign people. .

  9. bellacaledonia says:

    John – I’d imagine thats pretty much how SNP and SG see it too. Between 2014 and the first Holyrood elections in 2016 the devolved SG would become a transitional government of an Independent state. In such a position they would be guided by SNP policy on matters such as EU, NATO, etc.

    KW

  10. Bendig says:

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    Bendig

  11. Doug Daniel says:

    BOOOOOOOOOOOOOOMMMMMMMMMMM!!!!!!!!!!!!!!!!!!!!!

    That’s the sound of the No campaign’s tedious little EU argument being blown out of the water spectacularly.

    Observe closely as the NO campaign’s stance moves from “Scotland would be chucked oot and made to reapply” to “Scotland will have to make all these really difficult and complicated negotiations, and it’s all so uncertain and scary and stuff.” And it will happen (and is indeed happening now) without even a passing reference to the fact that the “Scotland would negotiate from inside the EU, not outside” argument has been conceded.

    And the media remain complicit, as ever.

    If you haven’t got any good arguments, just keep chucking a relentless stream of petty questions at your opponent, regardless of how silly they are. That’s the NO campaign’s game.

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