Independent Scotland unlikely to be left outside EU, says former judge

Advocate Sir David Edward. Picture: Jane Barlow
Advocate Sir David Edward. Picture: Jane Barlow
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EURO leaders would have to enter talks with Scotland about joining the EU soon after a “yes” vote for independence in the 2014 referendum, one of the country’s most eminent European law experts said yesterday.

• Sir David Edward says EU negotiations would begin before independence

• Yes campaign say opinion gives backing to view Scotland would not be expelled from EU post independence

Negotiations would have to take place, if Scots vote “yes”, during the “window” before Scotland assumed full independence with the Holyrood elections of 2016, Professor Sir David Edward said yesterday.

And Scotland’s EU membership would only require existing treaties to be amended – not an “accession treaty” which is usually required for new member states.

The former European Court judge’s intervention was welcomed by Nationalists yesterday who have been stung on the European issue since EC President Juan Manuel Barroso last week rejected claims that an independent Scotland would automatically remain in Europe. Instead, he warned it would have to re-apply to join.

Nicola Sturgeon said last week that Scotland would negotiate its EU membership from inside – in the period between a yes vote in 2014 and independence being established two years later.

And Sir David said yesterday that the “paradoxical legal consequences” of Scotland’s sudden European isolation, including potential upheaval on VAT, corporation tax, student fees and fishing rights, was not the intention of EU treaty founders.

“The EU institutions and all the Member States, including the UK as existing, would be obliged to enter into negotiations, before separation took effect, to determine the future relationship within the EU of the separate parts of the former UK and the other Member States,” he says in an analysis on the issue published yesterday.

“The outcome of such negotiations, unless they failed utterly, would be agreed amendment of the existing Treaties, not a new Accession Treaty.”

Sir David is a former judge in both the European Court and the European Court of Justice, as well as being Professor Emeritus of the University of Edinburgh, where he was Salvesen Professor of European Institutions and Director of the Europa Institute.


Ms Sturgeon welcomed the former judge’s intervention yesterday.

She said: “Sir David’s view that negotiations on Scotland’s continued European Union membership will take place before independence concurs with the Scottish Government’s position. And his opinion that Scotland’s continued EU membership will require a treaty amendment – not an accession treaty – also coincides with our position, especially given that Scotland by definition already meets the EU entry criteria.”

Blair Jenkins, chief executive of Yes Scotland, said: ‘“This is an extremely significant contribution from Scotland’s foremost expert in EU law. It counters misleading claims that somehow Scotland would be expelled from the EU on independence.

But Scottish Conservative leader Ruth Davidson said Sir David’s analysis “does not echo” what Alex Salmond and the Yes campaign have been saying about Scotland automatically remaining in the EU after independence.

“What Sir David Edward is saying is there will have to be negotiation,” she said

“That could take years, involve the creation of border controls and affect the rebate and tax harmonisation.”