I've been busy in recent weeks getting the first piece of written work for my PhD finished. It is now in, I've caught up with my sleep and so back to regular, I hope, blogging.
And it is appropriate, for this first blog back, to focus on a subject that I am starting to understand much, much better than before: an independent Scotland's relationship with the EU, in particular the legal aspects.
Jim Sillars was in the papers yesterday talking about the SNP's policy on the EU and whether or not an independent Scotland would be a member of the EU. Jim Sillars was probably the first SNP politician I ever spoke to. I remember doing an interview with him as part of a school project in the immediate aftermath of his victory in the Govan by-election. He is someone who could, and did, inspire. I left the interview not yet persuaded, but perhaps with a few seeds sown in my mind. I've still got a copy of the interview lying around somewhere, if I can ever find a cassette recorder to play it again.
But back to the EU. Jim spends about a third of his article setting out why he thinks an independent Scotland might not be a continuing member of the EU. Somewhat ironically, given that he criticises the SNP policy on Europe for being 20 years out of date, the legal arguments he uses are themselves 20 years old and now very definitely out of date.
One of the most significant cases in EU law in recent years, dealing with the relationship between international law and EU law, was a case called Kadi. This was the subject matter of my Masters earlier this year.
Kadi was about a UN Security Council sanctions regime to freeze the assets of people associated with the Taliban and Al Qaeda. To cut a long story short, the European Court of Justice held that the measures to put the regime in place EU-wide breached general principles of EU law (basically Mr Kadi's fundamental rights) and were thus illegal, even though they had their origin in a Security Council resolution i.e. the very pinnacle of the international legal order. It was the ECJ declaring (or, in reality, confirming) the autonomy of the EU legal order from international law.
What does this mean for Scotland's membership of the EU? Simply, that the decision will not be taken on the basis of international law, state succession or the Vienna Conventions. It will be taken on the basis of EU law and that can be enforced by the European Court of Justice.
In recent years, there have been some specific developments in EU law that are of relevance. First, we have a new 'voluntary withdrawal' clause in the Lisbon Treaty. This, broadly speaking, requires either (i) negotiation or (ii) a minimum 2 year period, before a Member State can leave the EU. Link this to the Greenland precedent (whereby part of a Member State had to negotiate to withdraw from the EU) and you get the picture. It is not possible for a unilateral act of a single Member State or part of a Member State to result in the immediate withdrawal of that Member State (or part) from the EU. Given this position, to claim, as some still do, that Scotland would cease to be part of the EU on independence day is, if I can revert to political-speak, lacking in credibility. Scotland would continue to be part of the EU, and negotiations on voting weight, number of MEPs etc would be conducted from within the Union.
Second, the development of EU citizenship as a 'fundamental status' for Member State nationals in the EU. This is a fast-moving area of EU law, with cases such as Rottmann and Ruiz Zambrano pointing the way. It will be the focus of my second year of studies and so I will restrict my comments. However, again, I find it difficult to conceive of a situation whereby the Court of Justice would allow the removal of EU citizenship rights from 5 million Scots en masse. On Independence Day, Scotland will still be part of the EU and Scots will still be EU citizens.
A few final thoughts. First, Jim talks about the option of being a member of the EEA. However, the non-EU members of the EEA (Norway, Iceland and Liechtenstein - they are described as the EFTA states) have the vast majority of the obligations of EU membership but without the opportunity to influence those decisions. The EEA agreement, at Article 6, requires that the terms of the agreement are interpreted in conformity with the case law of the European Court of Justice, but the EFTA states do not have judges on the ECJ. Article 7 requires that the EFTA states implement EU regulations and directives relating to the single market, and again, those states don't have representation in the Council or European Parliament where that legislation is developed and decided. The implementation of the single market is where a significant proportion of EU legislation and EU case law is focused and to subject ourselves to the laws without the opportunity to be part of making those laws seems far from ideal (and indeed a significant loss of sovereignty). The EFTA states also make a financial contribution on the same basis as EU members, amounting to just under 3% of the EU budget. Indeed Norway contributes over €200 million to projects to reduce social and economic disparities in the EU.
The EEA agreement excludes fishing and agriculture and also areas like foreign relations and defence co-operation and the Area of Freedom, Security and Justice (including the Schengen Agreement for open borders). However, EFTA members have signed up to Schengen. It is also important to recognise that in many areas outside the single market the national veto remains, for example over foreign relations, taxation and defence co-operation (and indeed over Treaty amendments). Scotland in the EU would not have to sign up to Schengen and would retain the veto over these other key policy areas and future Treaty changes.
Finally, and briefly, another misapprehension apparent in Jim's article is that any agreement on fiscal co-operation between the eurozone states would necessarily involve an independent Scotland. As I have written elsewhere, EU law makes crystal clear that Scotland cannot be required to join the euro and it is also clear that any further economic integration, if it comes, would only be required of the eurozone countries.
Saying Scotland should join the EEA may make a good soundbite or newspaper headline, but when you look at the substance and the legal basis for the agreement, it actually means Scotland retaining most of the obligations without any corresponding representation. I don't think that is a good option or a good deal. That's why independence in the EU remains the right choice for Scotland's future.
