The Scottish and UK governments must break with tradition and publish legal advice on whether an independent Scotland would be admitted to the European Union, the body that represents solicitors in Scotland argues today.
Ministers should disclose the nature of the legal opinion they have received on the issue, the Law Society of Scotland says, to “help provide clarity for voters” in the run-up to next year’s independence referendum.
The call is the first time the body has put pressure on ministers to break with their historic precedent of not revealing government legal advice.
The paper – Scotland’s Constitutional Future: Views, opinions and questions – also questions whether the structure of the Scottish Parliament, with just 129 MSPs, “would be enough to deal with all the new functions“ of an independent state.
The society says that “Scotland would have, in the event of a Yes vote, the capacity to be recognised as an independent state” and be “qualified to join other treaty organisations” such as the defence alliance Nato.
However, the paper’s authors would not say whether an independent Scotland would inherit EU membership or be forced to apply as a new member as it claimed Scottish independence presents the EU with “completely uncharted and unlegislated territory”.
The document also calls on the pro-Union parties to set out a timetable for further devolution in the event of No vote.
The SNP has said an independent Scotland would automatically inherit EU membership on similar terms to those it has within the UK, but unionists insist it would need to apply to join and may not be able to secure the same opt-outs on issues such as currency.
Nationalist ministers last year dropped a court battle to stop publication of whether they had previously sought advice from law officers on EU membership. They still insist the advice will not be published, in line with precedent. They will instead publish a white paper with greater details on Scotland’s position in Europe in the event of a Yes vote.
But the Law Society paper stresses the “need for legal certainty” on the issue to allow voters to make an informed decision in the referendum.
It calls on the SNP administration to set out what would happen if negotiations about EU membership could not be concluded in the 16-month window between a Yes vote and “Independence Day”, the date on which Scotland would become an independent nation.
“Would Independence Day be moved back to allow for a conclusion to negotiations or would Independence Day be a fixed date requiring Scotland to leave the EU and rejoin when the negotiations were concluded?” the paper asks. Meanwhile, Westminster is urged to say whether it would support an application by an independent Scotland to join the EU.
Law Society of Scotland president Bruce Beveridge said: “We think people should have more information about an independent Scotland’s future membership of the EU and that both the Scottish and UK governments should publish the legal advice they have been given to help provide clarity for voters.”
The society said it would “not take a view either for or against independence”, but said the debate in the run-up to the 18 September vote should be “reasoned, informed, informative and respectful”.
Deputy First Minister Nicola Sturgeon said: “This paper makes clear that which-ever interpretation is taken of the EU treaties, Scotland already conforms to the EU’s requirements and qualifies for EU membership in its own right.
“That is a common sense position that we have set out and which is supported by a number of eminent experts in EU affairs.”