By David Ferguson
“The Commission has no intention of beginning to speculate about different scenarios relating to the upcoming referendum in Scotland and their possible implications.”
These are not the words of that chap who writes for the Telegraph – Mr Alan Cochrane. They are not the words of some BBC Scotland hack with a degree in Sociology of Batman and Underwater Bagpiping from the University of Ecclefechan.
This is a direct quote from an email that was sent to me on 25th March 2014 by Mr Jens Nymand Christensen, who is the Director of the Secretariat-General of the European Commission. They are preceded by these words:
“Thank you for your letter of 25 February addressed to Mr Romero Requena, Director General of the Legal Service in the European Commission, to which he has asked me to answer…”
So they were written by the Director of the Secretariat-General, in accordance with the instructions of the Director General of the Legal Service. That would seem to me to be a pretty definitive statement on the legal position with regard to Scotland’s future status within the EU, should we vote for independence.
‘No intention to speculate about different scenarios… and their possible implications.’ Doesn’t sound much like what Jose Manuel Barroso said in his much-referenced BBC interview back in 2012:
“Now what I said, and it is our doctrine and it is clear since 2004 in legal terms, if one part of a country – I am not referring now to any specific one – wants to become an independent state, of course as an independent state it has to apply to the European membership according to the rules… For European Union purposes, from a legal point of view, it (Scotland) is certainly a new state. If a country becomes independent it is a new state and has to negotiate with the EU.”
Nor does it sound much like numerous similar pronouncements that have been made by people such as Barosso, Van Rompuy, and Rajoy in the intervening period, and trumpeted all over the BBC and the British mainstream media.
I can make no claim to being a current expert on EU Law. But I did study the subject for my law degree at Honours level under the late Professor J.D.B. Mitchell at the Europa Institute of Edinburgh University. At the time, he was the country’s leading authority on the subject. I’ve forgotten a lot since then. In fact I’ve probably forgotten more than Telegraph scriveners and BBC Scotland hacks have ever learned. But I haven’t forgotten everything.
One of the basic principles of European Law since the founding of the organisation has been legal certainty. Any authority on European Law will confirm this. European Union law must be certain, in that it is clear and precise, and its legal implications foreseeable. The adoption of laws which will have legal effect in the European Union must have a proper legal basis – apart from anything else they must exist, in some clear and written form, in which they can be read, and understood, and if necessary, challenged.
There are a number of formal sources of EU Law. Broadly these are Treaty Articles, Regulations, Directives, Opinions and Recommendations issued by the Council and the Commission, Opinions offered by the Advocates General to the Court, and Rulings of the Court itself.
No article within any of the existing treaties addresses the future status of the new units should a current member state divide into smaller independent units. There has never been any directive or regulation issued on the subject, nor has any advocate general ever issued an opinion on the matter.
The Court has never made any ruling on the matter. As it stands, then – and particularly in the context of the principle of legal certainty – it is quite clear that no EU law currently exists applying to Scotland’s status within the EU, should it re-establish its status as an independent country.
Crucially, if there was any such law, it would be open to challenge by any citizen of the European Union. If it contravened any fundamental principle of European Law, it could be struck out.
There are also specific provisions and formal procedures defining how new laws can be created in the European Union. Decrees and diktats by EU officials, however august, are not part of that procedure. Nor are back of a fag packet claims made in BBC interviews.
I have children in their twenties who were born in Scotland and have spent most of their lives in Europe. Two are working in France, and one is working in Austria. If the situation is as Mr Barosso has claimed, then they could all lose all their rights to live and work in these countries, overnight, as a result of a referendum in which they will have no vote.
There are three issues here – one of precedent, one of principle, and one of practicality.
As I have already pointed out, there is no legal precedent – or any other existing EU law – dealing with the Scottish independence scenario.
In terms of principle, it is indeed worth bearing in mind a few ‘principles’.
One is that in terms of currently delineated borders, Scotland is the oldest country in the world. Another is that the right to self-determination is protected in Article 2 of the Universal Declaration of Human Rights. Another is that the EU is supposed to be – and actively promotes itself as – a bastion of democracy and freedom. That is what gives it the authority to pronounce on matters such as the current events in Ukraine.
If the EU were to respond to a decision by the people of the oldest country in the world, to exercise a right that is guaranteed under article 2 of the Universal Declaration of Human Rights, by booting the said country out of the EU, what then? They would look like the biggest fools and hypocrites on the planet.
More importantly, such a response would not have a hope of surviving a legal challenge, as it would contravene every principle by which the EU supposedly abides.
Then there is the issue of practicality. Currently, there are thousands of Scots, like my children, exercising their right to live and work in other countries of the EU. There are tens of thousands of EU citizens currently exercising their right to live and work in Scotland.
There are two possible scenarios here.
The first follows in accordance with Barroso’s claim. Scotland votes for independence. Scotland is thrown out of the EU. The result is legal, administrative, and economic chaos – overnight tens of thousands of people lose fundamental rights that accrue to them as citizens of the EU.
The second is that following a vote for independence, Scotland renegotiates its relationship with the EU as a newly independent country from within the EU. Following the negotiation, the people vote on the proposals. If the vote is ‘yes’, all is plain sailing. If the vote is ‘no’, then an orderly withdrawal can be organised.
Under this second scenario there is no chaos, and there are no losers – apart from Mr Cochrane and his sad little band of cringemongers, who will be deprived of the opportunity to dance around the room saying “Ha ha! That’ll teach ’em!”
What conceivable reason could the EU have for deliberately going out of its way to create legal, administrative and economic chaos, when there is a perfectly viable alternative that creates none? Again, supposing it did so, such a perverse decision would have no chance of surviving a legal challenge.
Sick and tired of the onslaught of propaganda from the UK media on the subject of an independent Scotland and the EU, I finally decided to do something. I lodged formal complaints with the Council and the Commission concerning the interventions of Barroso, Van Rompuy, and Rajoy, and one with the EU Ombudsman. My complaints featured many of the arguments outlined above. I also highlighted the fact that these interventions represent an intolerable interference by EU officials in the internal affairs of a member state.
The Council treated my formal complaint with utter disdain, responding with a condescending and insulting rote letter which did not even bother to acknowledge that I had submitted a formal complaint, but explained to me that Mr Van Rompuy is a very busy man, and reassured me that my comments had been drawn to his attention.
The email quoted at the start of this article forms part of the Commission’s response. I consider it to be a major step forward in establishing clarity.
I will answer the Commission’s email as follows:
“Thank you for your email. Your response, sent at the request of the Director General of Legal Service in the European Commission, bears out my own understanding of the legal situation – that there is currently no EU law dealing with the situation that would prevail should Scotland vote for independence, because no organ with the authority to create any such law has ever done so.
It is, however, completely at odds with the statements made by Mr Barroso when speaking as President of the Commission in his BBC interview in December 2012, in which he claimed that there was a “legal doctrine” which was “clear”, under which an independent Scotland would no longer be part of the EU and would have to reapply as a new country.
It is completely at odds with a number of similar statements made subsequently by Mr Barroso and others, and widely publicised in the UK media.
I have submitted a formal complaint to the EU Ombudsman concerning the interventions of Mr Barroso and others on this matter. I will be maintaining that complaint.”