Case for No: Optimism on EU no match for facts

Jean-Claude Juncker, president-elect of the European Commission. Picture: AP

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The people of Scotland deserve facts before going to the polls, not baseless claims or assertions, where difficult questions are batted away as scaremongering. So in regard to the EU, let us look at the facts.

It is the position of the European Commission President Jean Claude Juncker, his predecessor Jose Manuel Barroso and European Council President Herman Van Rompuy that if Scotland votes to leave the UK this September, it votes to leave the EU. The Scottish Government contends that a separate Scotland would become a member state of the EU. I have no issue with that position, but it fails to answer the key questions in the debate – how Scotland would join, how long it would take and on what terms.

These are the key details of the debate, but they tend to be brushed over by the Nationalists. Yet the longer they refuse to answer these questions, the less credible their position becomes. It is Article 49 of the Treaty on European Union which oversees the entry of new states to the EU. However, because the process has historically been characterised by delay and fraught with political wrangling, the Nationalists would have you believe it uniquely does not apply to Scotland.

Instead, the Scottish Government has argued that Article 48 should be used. This provision governs revision of the EU treaties. Scottish ministers hope – and it is simply hope – that Scotland could become a member of the EU from within by amending the treaties.

This approach has already been criticised by experts such as Jean Claude Piris, who said it would not be “legally correct” to use article 48. He is correct to say so. There is clear inconsistency in seeking to use a generic rule to admit a new member, when specific provisions exist for it in article 49. Further, the Scottish Government’s preferred option of using article 48 is fraught with difficulties and procedural concerns.

Only a member state or institution of the EU can invoke the Article 48 treaty revision process. A separate Scotland would not be able to. If this process were used there would be nothing to stop member states adding provisions and amendments which have nothing to do with Scotland, risking significant delay.

A separate Scotland simply would not have the time for such delays. Making a rod for its own back, the Scottish Government unilaterally proclaimed that, if there is a Yes vote, Scotland would be a fully independent state by March 2016, giving Scotland just 18 months to negotiate exit from the UK and entry into the EU.

I find this position to lack all credibility. It is, to put it charitably, hopelessly optimistic to think that 300 years of institutions and legislation could be picked apart in 18 months with the UK, never mind the hundreds of treaties the Nationalists want to negotiate for entry into international organisations such as the EU.

This timetable has been criticised by the experts. Earlier this month, the Law Society of Scotland called for the Scottish Government to set out its contingency plan should it fail to negotiate entry into the EU in the proposed timeframe. Its concerns were echoed by Sir David Edward, a former judge of the European Court who said he did not think it would be possible to negotiate acceptable terms of entry for a separate Scotland by the Scottish Government’s self-imposed deadline.

It also must be noted that as it stands Scotland lacks some of key structures normally expected of member states joining the EU, such as a central bank and its own independent competition authority.

It is clear that an independent Scotland’s entry into the EU would depend on the outcomes of negotiations with the rest of the UK. The 18-month timetable for independence therefore means securing successful negotiations with the UK and then the EU, yet it has never been explained how both processes could occur concurrently.

With the legal arguments and experts against them the Nationalists have been known to talk about the political dimension to entry. So again let us look at the facts.

There are several separatist movements across Europe, realpolitik would suggest that it is in the interest of member states to show that secession is not the straightforward, seamless process the SNP claim it would be.

Finally let us consider the extraordinary terms on which the Scottish Government proposes that an independent Scotland should join the EU. It wants to retain the UK’s budget rebate, the UK’s opt-out from the euro and the UK’s opt-out from the Schengen free movement area.

No recent accession state has joined on terms anything like as generous as these. The SNP’s wildly optimistic position is completely reliant on a level of goodwill from the EU which is unrealistic in the extreme.

Let’s go back to the key questions on the EU at outlined at the start – How, how long and on what terms? On the ”how” Scottish ministers are suggesting ignoring an article used to admit new member states in favour of a process highly likely to attract delay. On “how long” they propose a timetable to negotiate exit from the UK and into the EU which verges on nonsensical, and the terms they are seeking have not been secured by any recently admitted member state.

None of this has any credibility or stands up to scrutiny. To say otherwise is to do a disservice to the Scottish electorate who deserve the facts.

‘NO’ CASE AT-A-GLANCE

• If Scotland votes to leave the UK, we vote to leave the EU.

• As part of the UK we benefit from the UK’s opt-out from the euro, and the UK rebate, which is worth £135 for every household in Scotland

• As part of the UK we are one of the “Big Three” in Europe – France, Germany and the UK

• Every country that has joined the EU since the creation of the euro has had to pledge to join the euro

• The UK has an opt-out from the Schengen agreement and we control our own borders

• Adam Tomkins is Professor of Public Law at the University of Glasgow