Peter Jones: Bargaining for a seat at the EU table

Has the Scottish government taken legal advice on whether an independent Scotland can join the EU? Of course it has. And it will say that, of course, an independent Scotland will be an independent member of the EU. The difficult question, which has not been asked of Alex Salmond, is how this would happen and on what terms. The answer is even more difficult and will present the SNP with severe political problems.

The Information Commissioner, Rosemary Agnew, has given the Scottish Government six weeks to disclose whether or not it has legal advice from its lawyers about Scottish accession to the EU. Mr Salmond is appealing the ruling, claiming that his government, like all others has the right to keep its legal advice (even the existence of it) confidential.

This is not a principle that I recall the SNP supporting when demands arose for the previous Labour UK government to publish the advice it received on whether the last Gulf war was legal or not.

Leaving that to one side, it is a dead cert that the Scottish Government has taken legal advice on EU accession. Its officials are busy preparing a White Paper on independence, and for the EU part of it, they will need the opinion of our learned friends.

There are two key questions which they have to answer. The first is whether Scotland, should it vote to be independent, would be considered to be a successor state or a secession state. Although this sounds an academic debate drawn from dusty law books, it is actually a very significant question.

It matters because of the second question. Even if you accept the SNP view that Scotland is already in the EU and therefore there is no question of it not being in the EU with independence, there is still a bit of a problem. This is that while the territory of Scotland is in the EU, its government is not.

So how does the Scottish government become a member of the EU, with votes at the Council of Ministers, a commissioner, and all the rest of it? The answer is that the European Council (the heads of national governments) will decide how many votes, etc., Scotland would have, which means a negotiation. There is no getting away from that. The bottom line at the end of this debate is that Scotland, which has no seats or votes in Europe just now, will have to acquire them by negotiation.

Once negotiations are concluded, there will then have to be an amendment to the European treaties which stipulate them. And that requires the unanimous endorsement of the existing member states.

Back to the first question. The SNP position is that an independent Scotland would be a successor state, that is that Scotland would assume all the international duties and obligations of the UK as indeed, would the rest of the UK. This is founded on the historical fact that the UK came into being via the Treaty of Union which, should the vote go Mr Salmond’s way, would be abrogated, creating two states which would both succeed to the rights and obligations of the former UK.

It is an important viewpoint because it means that Scotland would, for example, claim the right to a rebate from EU payments as that is one of the UK’s rights. This, however would not apply if Scotland was deemed to be a secession state, that is a country which has decided to break away from the UK and therefore retains none of the UK’s international rights and obligations.

This position is founded on the view that despite the Treaty of Union being a historical fact, it has no legal relevance to relations between Scotland and the rest of the UK and its provisions have long fallen into disuse. The creation of the Scottish Parliament, for example, entailed no revision of the Treaty which would have been the case if the Treaty still had legal force.

Other arguments can be brought to bear on either side of the successor versus secession debate but they are all close to irrelevant. The Vienna Convention on Succession of States in Respect of Treaties is often cited as a legal authority for adjudicating on such competing arguments. It is, however, of little use because it says in its own provisions that it does not over-ride the membership rules of international organisations such as the EU.

The answer to the successor or secession question is therefore liable to be lost in a legal fog, but that won’t stop the Scottish government’s lawyers from putting together a pretty good case for arguing that Scotland will be a successor state. This, however, can only be useful in establishing a negotiating position.

Yes, there will have to be negotiations. The SNP give the impression that on Day One of independence, Scotland’s official representative will just walk up to the doorman of the Berlaymont building, collect a pass, and start officially representing Scotland in all relevant EU meetings.

It cannot happen. The terms and conditions under which each of the EU’s 27 states are members and what votes they have at European Council meetings are all laid out in the Treaty of Nice. Irrespective of whether Scotland is even cordially welcomed as a new member of the European family, there will still have to be an Accession Treaty agreed between Scotland and all of the EU-27 under which Scotland gets its votes. There is no other way. Scotland’s entitlements cannot be conjured up by a wave of a wand.

Now, while I agree with the SNP that Scotland would get into the EU (providing Scottish voters want that, which is a bit doubtful these days), I am certain that the terms of membership (whether Scotland gets part of the UK rebate, retains existing fishing rights, can choose to join the euro or not, etc) cannot be stipulated in advance of the required negotiation.

I am also certain that is what the lawyers will have told Mr Salmond. It doesn’t take a political genius to work out that this is highly inconvenient for him because it creates a great deal of uncertainty about the whole independence project.

That’s why he doesn’t want to admit that it even exists, never mind disclose what it actually says.