EU Referendum


Scotland: in a legal fog


16/09/2014



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A fascinating article from Reuters explores the relationship between the EU and an independent Scotland.

As to what its status will be, partial legal precedents are cited for and against the Scottish case. They include Algeria, which kept some access to European markets for a time after it broke from France, Danish-ruled Greenland's exit from the EU and Kosovo's disputed statehood, as well as the EU's absorption of 16 million East Germans with minimal fuss.

Ultimately, however, we are told that "it may be less lawyerly argument and more messy but flexible EU politics that win the day". A compromise could prevent five million EU citizens being cast out against their will while easing fears in Spain and beyond that it opens a Pandora's Box of centrifugal spirits - Catalan, Basque, Flemish, Breton, Lombard and many besides.

We then get this priceless comment from an anonymous Commission official in Brussels: "Whatever the lawyers say, this will come down to politics," he says: "It's the EU way. Whatever politicians eventually negotiate can be made to fit the texts".

The article goes on to tell us that many who reject the idea that Scots risk expulsion from the EU cite David Edward, a Scottish former judge at the European Court of Justice (ECJ). He has written on the implications of Article 50 of the EU treaty, which spells out a negotiating period of two years or more to unwind relationships before a state can leave the Union.

If the treaty rules out an abrupt departure "at the midnight hour" for those who want out, then, Edward argues, it cannot be in the spirit of the law to demand it of those who want to stay.

"The EU institutions and all the member states ... would be obliged to enter into negotiations before separation took effect", Edward wrote in a commentary cited by nationalists who want to begin talks with Brussels immediately after a "yes" vote.

Other legal experts say Barroso ignored views that EU law is not just a matter of state treaties, in the manner of classic international law, but gives citizens individual rights, to live and work across the bloc for example, that could not be removed.

Sionaidh Douglas-Scott, professor of European and human rights law at Oxford, wrote recently: "How could ... the EU ... dispossess Scots of their acquired rights and EU citizenship as a result of Scotland using the democratic right to vote for independence? This would seriously undermine the EU's credibility and its claim to be a promoter of democracy".

At Edinburgh, politics professor McEwen forecast Europe's politicians could bridge the legal void, if needed: "The European Union is very good at finding ways around things", he says.

And that is about the size of it. For the "colleagues", the treaties are a moveable feast. They tend to have them mean what they want them to mean, when it suits them. But, of course, for us simple people, with our naïve belief that words like "no" don't actually mean "yes", when it comes to EU referendums, that is far too sophisticated a concept for us.

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