Scotland and the EU

Would an independent Scotland remain in the EU? The SNP have a terrible record of making-it-up-as-they-go-along on this question. Even now they are still at it.

In December 2007 Deputy First Minister Nicola Sturgeon told the Scottish Parliament that an independent Scotland would “automatically” become a member state of the European Union, that there would be no need for an independent Scotland to renegotiate EU membership and that this position was supported by both political and legal opinion. Utter fantasy.

In 2013 First Minister Alex Salmond spent £20,000 of taxpayers’ money on legal fees, seeking to keep secret phantom legal advice supporting this position which, it transpired, did not exist.

Not only have the SNP now dropped their absurd line about “automatic” EU membership, they have tried to bury it. In November 2013 the Scottish Ministers published a document, Scotland in the EU, in which it was claimed that “the Scottish Government has always recognised that the terms of Scotland’s independent membership of the EU will be subject to negotiations with other member states”. This is just one of many untruths uttered by the SNP in the long independence referendum campaign.

Even the heavily revised position adopted by the Scottish Government since 2013 rests on misconception and misrepresentation: the Cabinet Secretary for Culture and External Affairs, Fiona Hyslop MSP, told the Scottish Parliament in April 2014 that “Scotland has been a member of the EU for 40 years” and that “We are very much part of the fixture and fittings of the EU”. The truth is that Scotland is not a “member” of the EU. The United Kingdom is a member state of the EU and Scotland is part of the United Kingdom but, as I have explained on these pages before, if Scotland votes Yes on 18 September, what that would mean in legal terms is that Scotland leaves the UK to become a new state. The rest of the UK will continue to be a member state of the EU, as the rUK will in legal terms be the “continuator” state. It will be the rUK that inherits the legal rights and obligations of the United Kingdom, not Scotland, because Scotland will have voted to leave the UK. Scotland is not part of the “fixture and fittings of the EU”. Each member state has a representative at the Council of Ministers: Scotland does not. Each member state nominates a member of the European Commission: Scotland does not.

Outrageously, Scottish Ministers still like to pretend that the legal consequences of a Yes vote would somehow be different. Fiona Hyslop, in the same evidence from which I just quoted, told the Scottish Parliament that both Scotland and the rest of the UK would be “successor” states to the UK – that a Yes vote would not mean that Scotland is a new state. This position was authoritatively dismantled by two of the world’s leading international lawyers in a fully reasoned legal opinion that was published by the UK Government as long ago as February 2013. Yet still the SNP refuse to admit the truth and reside instead somewhere on Planet Fantasy.

The good news, however, is that you no longer need to take my word for it. Last month Lawyers for Yes published the following on their website, authored by a member of their steering group, no less: “The politico-legal reality is that rUK will be accepted as the continuing state by the international community”. At last, admission by Yes supporters that we have been right all along and that the SNP are making it up as they go.

Accession countries to the EU must show, before they can become members, that they are able and willing to comply with all 35 chapters of something known as the acquis communautaire. The acquis is the full range of the EU’s laws and principles, whether derived from the treaties, from legislation such as regulations and directives, or from case law. It is sometimes said that because Scotland has been within the territory of the EU since the UK’s accession in 1972, Scotland is already fully compliant with the acquis and that, therefore, her accession to the EU as an independent member state would be much more straightforward than a membership application from a country external to the EU. But it is not as simple as that. Of course Scotland is compliant with those parts of EU law that affect it now. But not all of the acquis does affect Scotland at the moment, because Scotland is not a state. There are some parts of the acquis with which Scotland is compliant only because there is a UK institution that covers Scotland. Were Scotland to leave the UK, such institutions would no longer act for Scotland (they would act only for the rest of the UK). Scotland lacks a number of the institutional and administrative structures normally expected of accession countries – including a regulatory framework for public broadcasting, enforcement and administrative capacities for taxation, a competition authority, and a central bank.

Scotland will find it difficult to accede to the EU without first convincing the EU institutions and member states that its broadcasting, tax, competition and banking institutions meet EU criteria. As the Commission’s website makes plain, compliance with the 35 chapters of the acquis is “not negotiable”. Candidate countries must “agree on how and when to implement them”, such agreement being monitored by the European Commission as the candidate country progresses towards accession.

The path to EU membership

On BBC television Jose Manuel Barroso, then President of the European Commission, opined in February 2014 that it would be “extremely difficult … if not impossible” for an independent Scotland to become a member state of the EU. In my view, Barroso’s intervention was ill-judged. There ought to be no doubt that an independent Scotland would become a member state of the European Union, eventually. However, there is very considerable doubt about how this would happen, about how quickly it could happen, and about the terms on which it would happen.

The EU treaties do not provide for a procedure by which part of the territory of a member state, having determined lawfully to secede from that member state, then seeks EU membership in its own right. Article 49 TEU governs the accession of new member states, but it is framed in terms of a state seeking accession from outside the EU. Seeking accession to the EU from outside, as Article 49 TEU envisages, is incompatible with the SNP’s vision of a “seamless transition” to independence. Thus, as an alternative, the Scottish Ministers have proposed that Article 48 TEU be used instead: the treaty revision process. The Scottish Government’s hope is that the treaties could be amended under Article 48 to allow for Scotland to become a member state. It is far from clear whether this route is a legally viable means of acceding to EU membership, however. Jean-Claude Piris, former legal counsel of the European Council, has argued that “it would not be legally correct to try and use Article 48”. His view is shared by a range of the UK’s foremost experts on the matter, including Professor Kenneth Armstrong (of the University of Cambridge), Lord Kerr (former UK ambassador to the EU) and Patrick Layden QC, one of Scotland’s most experienced government legal advisers. It is notable that not a single member state of the EU has endorsed the Scottish Government’s view that Article 48 could be used for this purpose.

Even if it were legally possible to use Article 48 there would still be numerous practical problems: Scottish accession to the EU could not be commenced until Scotland’s independence negotiations with the rest of the UK had resolved certain key issues (such as whether Scotland would have a central bank); the Article 48 procedure may be triggered only by a member state or by an EU institution – Scotland would not be able to initiate it; nor is there a means under Article 48 for Scotland to be represented in treaty amendment negotiations (whereas Scotland would be represented were Article 49 to be used); under Article 48 agreement is reached by common accord, not by majority, giving each member state a veto; and the Article 48 process requires (a) agreement to be reached in the Council and (b) that the agreement is then ratified by each member state government or parliament before it may take legal effect. The process would not be swift and, indeed, would be liable to grave delays. Legal doubts about the validity of the process would render it liable to legal challenge. Moreover, Article 48 is a provision allowing for general treaty revision. Were the process to be triggered there is nothing to stop member states adding any number of other proposed treaty revisions to the agenda, even if those proposals had nothing to do with Scottish accession. We know that several member states (not least the United Kingdom) are keen to see a variety of treaty reforms, many of which are likely to be resisted by other member states or by the Commission. So, more delays. An Article 48 process could not be confined to the single subject-matter of Scottish accession (whereas an Article 49 process would be so confined).

The Scottish Government has said that it would wish Scotland to become an independent state in March 2016, only eighteen months after the referendum. Given the vagaries of the process and the range of substantive matters needing to be negotiated, it is highly ambitious to suppose that agreement over Scotland’s EU accession could be reached within that timeframe. But to imagine that such an agreement could be both reached and ratified within an eighteen-month window is hopelessly unrealistic. This means that the new Scottish state would start its life outside the EU, at least for an interim period. Would that matter? Well, it would matter to Scottish farmers, who would lose EU CAP receipts of up to €600 million annually: another of the many hidden costs of independence about which the SNP have been remarkably quiet.

A dispassionate view of the law, then, leads ineluctably to the conclusion that were Scotland to become an independent state in March 2016 it would not be starting its new life as a full member state of the European Union. Some legal commentaries on this matter have reached a different conclusion. My friend and former colleague Professor Sionaidh Douglas-Scott of the University of Oxford, for example, has written in defence of the view that Scotland’s transition to full EU membership ought to be “relatively smooth and straightforward”. Much of her argument is based on the notion that “rebuffing or alienating a country such as Scotland, that wants to maintain EU membership … will hardly do much for the EU’s image”. She writes of the alternative view being that “Scotland would be immediately ejected from the EU” and talks of Scotland’s “exodus” and of being “cast into the wilderness”. I find all this very odd. First, Scotland would not be “maintaining EU membership”: she would be acquiring new EU membership. Secondly, no-one would be “rebuffing or alienating” Scotland: on the contrary, EU institutions and member states would be recognising and giving due weight to the fact that Scots would just have voted to leave a member state. EU institutions and other member states would surely welcome the fact that Scotland wished to join the EU in her own right, but would note at the same time that Scotland would wish to approach her accession with the EU’s fundamental values in mind. Under Article 2 TEU those values include the rule of law. A lawful means of acceding to the EU must be found, not only for the sake of the EU’s “image”, but also for Scotland’s sake as a new state committed (one would hope!) to the rule of law. Thirdly, the rather inflammatory language of “ejection” and automatic “exodus” into the “wilderness” is misplaced. No one is talking of throwing Scotland out of the EU – not even Barroso. What is being talked about is recognising the legal consequences of the decision that Scots will have made were any of this to arise (i.e. that Scotland will have voted Yes to leaving the United Kingdom and becoming a new state in international law).

More balanced than Sionaidh Douglas-Scott’s paper is one published this month by Professor Stephen Tierney and Dr Katie Boyle of the University of Edinburgh. In their view, while Article 48 is a “feasible” route for the realisation of Scotland’s EU membership, it is “more likely that Scotland will require to make an application … by way of Article 49”. This, they say, is the “more plausible route”. They note, as I have done, that the timetable of achieving all this by the SNP’s projected independence day of March 2016 is “ambitious”, not least because, in their words, “it is not possible to predict with certainty how long the ratification process in each member state might take”.

The terms of EU membership

Next, let us consider the terms of EU membership which the Scottish Government is proposing. It wants (1) to continue the UK’s opt-out from the euro, (2) to continue the UK’s opt-out from the Schengen free movement area, (3) to continue to benefit from the UK’s budget rebate and (4) to continue to benefit from the exemptions from the EU’s VAT directive which the UK negotiated for itself. These terms of membership are extraordinary: none of the EU’s recent accession countries have joined the EU on terms such as these.

The EU institutions and member states, looking at the terms of membership proposed by the Scottish Government, will simply reply “what are you offering us in return for these extraordinary terms?”. Negotiations involve give and take: if these are the terms which Scotland wishes to take from the EU, what is it proposing to give in return? Why should a country such as Ireland, or Portugal, or Greece, which has spent years struggling with the consequences of its membership of the Eurozone, agree that Scotland should be entitled as of right to stay out of the Eurozone? Similarly, Scotland wishes to remain in the Common Travel Area with Ireland and the rest of the United Kingdom. But the CTA is loathed by many in Europe, who see it (quite rightly) as a special British-and-Irish exception to the EU’s Schengen free movement area. Why should EU member states allow Scotland, uniquely among all accession countries, to opt out of Schengen so that she may continue her participation in an alternative free movement scheme? Now, to be clear, I am not saying that Scotland could not negotiate her way out of the Eurozone or Schengen. But I am saying that the negotiations would not be straightforward; they would not be swift; and they would not go Scotland’s way without Edinburgh having to make concessions elsewhere – concessions about which we have heard nothing at all from the Nationalists.

As for the other aspects of the UK’s special deal which the SNP would like to keep, I would say there is no chance at all. Far from continuing to benefit from the UK’s rebate, Scotland as a new accession state would be expected to contribute to it, as the House of Commons Scottish Affairs Committee have pointed out. Likewise, it is impossible to see how an independent Scotland could continue to enjoy the UK’s exemptions from the EU’s VAT legislation. Under these exemptions 54 items in the UK are free of VAT, including food, children’s clothes, books and newspapers. If we vote for independence, expect the price of all these items to go up in Scotland: yet another of the SNP’s carefully hidden costs of independence.

Another aspect of the SNP’s proposed policies for an independent Scotland is incompatible with EU membership. At the moment, Scottish students do not pay tuition fees to read an undergraduate degree at a Scottish university, but students from elsewhere in the UK are charged a fee to do so. The Scottish Government’s independence white paper proposes that this discrimination be continued in the event of independence. But this would be unlawful if both Scotland and the rest of the UK were EU member states, for it is contrary to EU law for a member state to discriminate in this manner against the citizens of another member state (the policy is not contrary to EU law at the moment because the discrimination is within one member state – the UK – not between nationals of different member states). Were Scotland to become independent, rUK students would have to be treated in Scottish universities in the same way as Scottish students. Either that would mean Scotland’s universities being flooded with rUK students in search of a free education, or it would mean Scotland having to charge Scottish students a fee equivalent to that already charged to rUK students in the rest of the UK. So here is another reason to Vote No: it’s the best way of ensuring that Scottish students will not have to pay tuition fees to study at Scottish universities.

Two objections

Two very different sorts of objections are sometimes raised in response to the above analysis. The first relies on the doctrine of EU citizenship. Since the Maastricht treaty twenty years ago nationals of member states have been EU citizens, as well as citizens of their respective state(s). As EU citizens we have certain rights under EU law. It has been suggested that these rights would ensure continuity of Scotland’s EU membership, on the basis that it would not be appropriate for Scots to be stripped of their EU citizenship. The argument is unpersuasive, however. First, it must be borne in mind that EU citizenship is strictly secondary: it is a status conferred by EU law upon those who are already nationals of a member state. Secondly, citizenship has been used as a juridical device by the Court of Justice to prevent member states from discriminating against the nationals of other member states. Its value lies in the way it has augmented the EU’s ability to control (or limit) action undertaken by the member states. Were an independent Scotland to find it more difficult than the SNP have conceded to join the EU as a new member state, it would not be because of coercive state action taken against Scots, but because of Scots’ collective decision to leave an EU member state. EU citizenship may be a shield protecting individuals against coercive state action, but it has yet to become an effective sword by which the EU itself can be forced to act in a certain way. On this matter I note that Professor Douglas-Scott states that, despite the citizenship argument being in her view “a strong one”, it “cannot by itself engender automatic membership of the EU for an independent Scotland”.

The second objection sometimes made is that, such is the euroscepticism of the English, the only way of guaranteeing that Scotland remains in the EU is to vote Yes. It is true that England has a problem with euroscepticism. But so does Scotland: Ukip have more MEPs in Scotland than they have MPs in England, let us not forget (unless Douglas Carswell is successful in his bid to turn Clacton from Tory to Ukip, in which case the score will be 1-1). The Conservatives have promised that if they win the 2015 general election they will hold an in/out referendum on the UK’s EU membership in 2017. Now, in my view this is likely to happen only if the Conservatives win an overall majority in 2015 – and precious few psephologists are predicting that – and, even if it does happen, an “In” vote is much more likely than an “Out” vote. All three main UK parties (plus the SNP) will campaign for an “In” vote, even if a minority of Tory hardliners break ranks to campaign with Nigel Farage’s Ukip for “Brexit”. The issue is a dangerous one for the Tory party, whose divisions over the EU have been apparent since the days of the Maastricht rebels twenty years ago. But there is little real danger of the UK leaving the EU. Any Yes campaigner arguing in 2014 that the only way of securing Scotland’s membership of the EU is to vote Yes is scaremongering, plain and simple.


What the Scottish Government has had to say about Scotland’s EU membership is triply odd: the route by which an independent Scotland could lawfully become a member state is obscure and liable to attract delay; the timetable proposed by the Scottish Government is optimistic to the point of being preposterous; and, on top of all of this, under the SNP’s plans an independent Scotland would be seeking membership of the EU on extraordinary terms afforded to no other accession country.

I have no doubt that, were there to be a Yes vote in next month’s referendum, an independent Scotland would accede to membership of the EU. Eventually. But how this would be done, how quickly it could be done, and on what terms it should be done are three of the “known unknowns” of the independence debate. To pretend otherwise – by insisting that there would be a straightforward, smooth and seamless transition – lacks all credibility.

What is clear, however, is that were we to vote Yes, we’d inevitably not be a full member state of the European Union by the SNP’s projected independence day in March 2016. An independent Scotland would start her life outside the EU; even thereafter Scotland would enjoy EU membership on terms far less beneficial and generous than those enjoyed now by the UK.

18 thoughts on “Scotland and the EU

  1. Clear, concise and damning. Another wall of the YES campaign’s fantasy castle is sent crashing to the ground.

  2. “A dispassionate view of the law…”
    You couldn’t be less dispassionate or neutral on this issue if you tried.

  3. Another fine article. I’ve recommended this blog many times as an outstanding analysis of crucial issues relating to the independence debate. Actually if the nationalists were sensible, they would have listened very carefully to the views of Adam Tomkins (and other experts talking about the difficulties of independence), and made sure their position was robust enough to come up with credible positions in response. As this blog has stated, there is without doubt an honourable and credible argument for independence (it’s not one I’d support, but I certainly think there’s an argument for it). A Yes campaign that was grounded in reality would want to pay very careful attention to the legal and other issues Tomkins raises (not least because they wouldn’t want to scrape through with a Yes vote, and then be faced with rage from the electorate when the realities of independence hit home and they realized they’d been sold a false prospectus). However, the Yes position we do have is based on a farrago of bluff, bluster and ignorance of the law in relation to crucial issues in the Yes position; these are forensically exposed in the well-reasoned analyses found on this blog.

    I might disagree somewhat though with one point Prof.Tomkins raises above, the danger of the UK leaving the EU in a referendum after the next election. This is something that has concerned me greatly, to the extent I am seriously considering gaining dual Irish-British nationality (I have an Irish grandfather so should be eligible), so I would still be an EU citizen if this happened. I do think Tomkins makes some very good points why this hopefully won’t happen (which rather cheered me up). However, I think he still underestimates several factors. For the UK to leave the EU, essentially two things would need to happen – 1) A referendum would need to be held (which at the moment seems to require a Tory majority – assuming Miliband doesn’t give way to pressure to agree to hold a referendum himself). 2) The majority of the UK then needs to vote in favour. On the first issue, whether there will be a referendum at all, unlike Tomkins I still think there is quite a reasonable chance the Tories will gain a majority at the next election; although Labour have consistently led in the polls for quite a while now, the lead is very small for this stage of a Parliament. (Right through the Blair administration there were frequent Tory poll leads mid-term, which didn’t prevent him being re-elected comfortably twice). Although I think the psephology at this point probably does point to either a hung parliament or a small Labour majority, I still think a Tory majority is perfectly feasible (though the strength of UKIP may also lead to a collapse of the Tory vote similar to the effect of SDP on Labour in the 1980s – but this is too early to tell). I also wouldn’t rule out Miliband changing his position before the election, and agreeing to hold a referendum (I’m sure he has advisors telling him that this could give him a boost in popularity – I would judge Miliband is tough enough to stick to his principles on this, but it’s conceivable he won’t). Even the LibDems, while of course being very pro-EU, might possibly end up agreeing to a referendum on the grounds that it is more ‘democratic’ to ‘give the people their say’. So on point 1, I would assess there is a genuine risk of a referendum being held – at the moment I’d guess around 30-40%, though that could easily change in either direction depending on how events unfold up to the election. But it certainly can’t be ruled out.

    If there IS a referendum, could there be a vote in favour? Tomkins states that all three main UK parties would campaign in favour of staying in. Labour and the LibDems would, without question. I’m not so sure about the Tories. I have no doubt this is currently Cameron’s preferred position, but his ‘angle’ has been to engage in renegotiations with the EU, and gain sufficient concessions to be able to argue for staying in. I am highly doubtful whether Europe would be at all keen on giving us any substantive gains from such a renegotiation (we already have far more privileges than most EU members – optouts on Schengen and the Euro, the rebate and so on). No doubt Merkel would do her best to ensure there were some minor face-saving ‘gains’, but there would be baying ranks of Euro-sceptic Tories crying that it wasn’t enough. Cameron is not a strong leader, he might end up feeling effectively powerless to resist the forces in his party wanting to leave. (I still think it most likely that he would campaign to stay in the EU, and certainly that’s his preferred position, but it’s by no means a certainty given how he’s boxed himself in by demanding substantive concessions of a kind he’s most unlikely to get).

    Even if all three parties DO campaign in favour, the result of relentless anti-European press over the past few decades means that it is far from certain there would be a Yes vote. I would guess the current position of the electorate here is probably no better than 50/50 (or maybe even a small majority for leaving). Hopefully a campaign which spelled out the actual consequences of leaving would help turn this around, but it’s far from a given. For many years now in Britain the siren call of the Euro-septic (spelling intended!) has been much louder than the occasional lowing of the Ken Clarke-type Europhile.

    So I would say overall the risk of the UK leaving the EU IS substantial enough to be a valid argument to consider in favour of voting for Scottish independence. Of course, even a Yes position arguing this would, if honest, have to also accept the powerful points this blog has made about how in the short-term Scotland would very likely have to accept a period outside the EU before it could potentially rejoin – certainly if Salmond sticks to his stated independence date. And that any subsequent Scottish EU membership – I agree with Tomkins it is likely Scotland would be able to become an EU member at some point – would very probably be without some or all of the special advantages the UK membership currently holds.

  4. Given your final paragraph, it seem that border controls may be needed between Scotland and England from day one of independence.

  5. Yet another clear and concise article by the author, if I may share my personal experience on the subject of the terms of membership. I have for 25 years enjoyed close personal and business relationships with politically informed Italians and I doubt that they’re feelings are vastly different from most other member state citizens, they are truly annoyed and puzzled by our opt outs on the Euro and Schengen arrangements plus our rebate, the separate VAT rules surprise but don’t annoy them as much. Bearing that in mind it is very difficult to imagine that the respective Euro governments would accede to these Indy Scot assumptions once the issues became the subject of hysterical local headlines, plus what a wonderful way to pressurise and punish (in popular Euro imagination) the UK government for being such a noisy and different member state, portrayed, as “not team players”.

  6. There is only one possible good outcome of a yes-vote, and that is if Scotland were to escape from the EU. Why in sanity would we want to get back in.

  7. I m sorry to say that I think we are past the point where much progress can be made by arguments such as put forward above – everyone who is susceptible to reasoned argument such as that put forward here as already made their minds up. Everyone who is not will simply make their minds up based on gut instinct. The recent progress that the Yes campaign have made in the polls suggests that the “gut instinct” crowd are now falling into line behind Salmond’s saltire-waving, though it is still not enough to take them over the line, and I pray it will not become so.

    EU membership was obviously never going to automatically be granted to a newly independent Scotland, nor did it make sense that an EU which it took established and stable countries like Finland and Austria years to join would allow a state that did not yet even exist to enter. I think, therefore, it is time for the people who support Scotland remaining within the Union to concentrate more on these things:

    – If there is a ‘No’ vote (and this is still the most likely outcome), how will we prevent things coming to this kind of juncture again? I think many lessons may be learned from Canada on this point – having come within a hair’s-breadth of independence in 1995, BQ were utterly routed in the last elections and Quebecan independence is more distant a prospect than ever.

    – If there is a ‘Yes’ vote, then the utmost must be done to expose just how unready the SNP is for Scottish independence, and just how damaging it is going to be. Alex Salmond has set a deadline of March 2016 for independence, but just like every demand or deadline he sets, he really has no right to make such a demand. It is an impossible deadline to be met if he wants to achieve what he says he wants to achieve – independence will not be acheived so quickly. In the horrific, shameful event of a ‘Yes’ vote, let us then look forward to the May 2016 Holyrood elections and a victory for Unionist parties based on the exposure of the vacuousness of the SNP’s plans, and a defeat thereby of the entire nationalist project. Since all the referendum commits the UK government to do is negotiate with the Scottish government on independence, if a Unionist government is elected in Scotland, then the referendum will become a dead letter. It would be better, however, to just vote ‘No’ than to put Scotland (and the UK) through such pointlessly destructive turmoil.

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  9. What about a functional /legal/ relationship with the EU? Scottish courts would likely have to faithfully apply the terms of the “interim constitution” and thus enforce EU law. Second, in the numerous wheelings and dealings between private organisations (etc.) involving Scottish people and de jure members/citizens of the EU, an article 267 reference seems inevitable (in addition to other judicial processes), placing the /legal/ status ( conceivably distinct from political negotiations eg. representatives in the institutions) in the hands of the EU-citizenship-activist-friendly-CJEU, which feasibly and legitimately could enforce continued legal obligations as per the status quo vis-a-vis Scotland and the EU – in the meantime the political negotiations (representatives, Eurozone, Schengen, etc.) progress.

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  11. Adam, well set out arguments and nice to see an academic get it right. As a Fiscal Expert of many decades and representative at Brussels in a previous life, I know how the European machine works. Also, having assisted the Ministers and Governments of aspiring Member States, I know the enormous amount of operational policy and implementation work that supports change. In the case of Scottish independence the work could not be achieved in the timeframe set out by the Scottish government. As you may know, on day one of joining the EU, appropriate legislation has to be in place but what is often overlooked is operational systems such as the VAT Information Exchange System (VIES) which provides online data exchanges with all other Member States (see EC Regulation 218/92). Implementation of such a system in around 18 months, I think not especially since there would be no agreed tax policy and as you rightly point out no guarantees of any derogations applicable to the UK. Also, a number EU regulations would need to be amended to include a new Member State. Also, there is no equivalent of HMRC in Scotland, only an operational division called Scotland. All the main system are located elsewhere in the rest of the UK. Designing a building a tax system to support ongoing activity and support the EU dimension would realistically take 5 years. The current UK risk based audit and intelligence systems are worth many billions in facilitating the allocation of resources to risk. A Scotland without a strong HMRC would be at risk of losing vast amounts of tax. So what chance of supporting intra-community trade where EC fraud is a significant risk. High level policy needs to move to operational policy and operations in order to succeed. Never mind what currency these systems will be based upon and how they will connect to the clearing system.
    Let’s face it the Scottish Government must know that anything other than Sterling would be suicide since the chance of amending all fiscal, commercial and banking system would only add to what would be a nightmare scenario. Also, have businesses really done a risk assessment of direct costs for changing stationery, tax number and accounting? Some banks are preparing but insiders tell me they cannot make the date of independence.
    How could here be Plan B1-3 or even C?
    Also, the main trade computer for the UK (CHIEF) which connects importer, exporters and HMRC is located in England, so no trade computer for Scotland! Not too much different to DVLC but CHIEF would not be available to Scotland. So I can only see a mess of monumental proportions. We are far more integrated than most people think.

  12. An excellent explanation, as ever.

    One thing missing, which I find quite astonishing, is the approach taken by the SNP, which seems to involve threatening the other EU members (no access to North Sea, or Fish etc.) if they don’t make Scotland a special case. It doesn’t seem to occur to them that it might be an idea to be nice to people whose club you want to join.

    The Nationalists seem to have a comically bizarre view of their own importance, and Scotland’s.

  13. The issue of EU citizenship highlights another of the dilemmas posed by the SNP Government’s promises on independence, that residents in Scotland may retain their UK passports and UK citizenship or take up a new Scottish passport. Surely this implies that those living in Scotland who choose a UK passport, (and therefore remain citizens of the UK, living in a foreign country) will also retain their EU citizenship, whilst those who choose to take Scottish citzenship and a Scottish passport will by definition have “chosen” to renounce their EU citizenship by leaving an EU member state?

    All very confusing. Perhaps Scotland will fill the jobs gap by repatriating all those Scottish emigrees who will want to come back when Scotland is definitely out of the EU? ACn we look forward to a part of teh EU membership negotiation where the Govermnet of the day offers a referendum on whether Scottish citizens want to become part of teh EU under the newly negotiated terms or would rather stay out?

  14. Dear Prof Tomkins

    I have so enjoyed and appreciated your logical and precise summaries. I haven’t read them all yet but what I have read so far has been so helpful and insightful. Is there no way you can reach a wider audience?

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  16. Thank goodness for some real hard headed analysis. The descent into outright lies (sorry, not very professional – inexcusable misrepresentation) that is the Yes camapign is driving me demented.

    But we have to recognise that the ground of this campaign is no longer about truth, but about selling whatever dodgy proposition will grab another vote. As an old chum used to say “The lie is twice round the world while the truth is putting it’s boots on”. We need to redouble our efforts to put the real truth out there because you can be sure that the opposition is not going to play by our rules.

    I guess my (rhetorical) question is this: given the very clear misrepesentation that is going on could a Yes result be annulled? Of course I know the answer – this is politics not a courtroom. That’s why I am off to go door knocking.

    And please, continue to give us your excellent analysis. Ammunition on the streets is vital.

  17. It’s not adequate to describe the Yes campaign’s position on the EU membership or not of Scotland as “making it up as it goes along”: that implies a certain innocence and ignorance, which is very far from the position of the Yes campaign.

    What we are talking about here is deliberate, bare-faced lying merely to get the ball over the line and it is mirrored in many other aspects of their campaign. I believe it may be fraud, pure and simple. And the sad fact in the event of Yes vote is that there will be no meaningful redress and no turning back.

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