Scottish independence: Scottish Government advisor Dr Daniel Kenealy says the EU has a "schizophrenic" stance on Scottish independence, has he joined the Lord Robertson school of predicting the ‘end of the world’, the EU must follow the law and their treaty, and the treaty says all EU members have a right of veto of another state applying to be a new member

Dear All

Aside from listening and watching the ravings of Alex Samond and Nicola Sturgeon talk rubbish, we should also remember that there are other voices doing the rounds.

One such person is Dr Daniel Kenealy, adviser to Holyrood's European and External Relations Committee.

So, what is his take, presumably it isn't babbling nonsense in the style of Ms. Sturgeon.

He says the European Commission "may have set itself on a collision course" with the courts with its "schizophrenic" stance on Scottish independence.

I have a lot of respect for the European Court; they have done a real service for the EU during their existence and produced some really good sound judgments.

As Dr Daniel Kenealy is a Scottish Parliament adviser, one may ask how neutral his opinion actually is.

So, let's get into what he appears to be saying, he opines that EC president Jose Manuel Barroso and others are wrong that a seceding country would be a "new state" and wouldn't have to reapply for membership as being "is entirely inconsistent with the general principles of the EU".

So, let's look at this logically, who holds the contract?

The contract for membership of the EU rests with the UK Government, that contract isn't transferable and can't be partially broken off and reformed by a third party as a new contract or in this case 'continued membership'.

We already know that the Scottish Government doesn't have a contract because it isn't a member as defined by Treaty. That being the case, his point of "entirely inconsistent with the general principles of the EU" is meaningless.

You can't get round the Treaty, any new member must apply and the existing member states have a legal right to exercise veto if they so chose.

Dr Kenealy is off at a tangent in my opinion when he says said the process of expelling a country is equally problematic.

Scotland would by default have chosen to leave, no negotiating would take place re membership, because none exists.

Comparing the situation with the six years it took for the departure of Greenland is equally meaningless.

The Scottish Government wouldn't be negotiating because they aren't members, the task would fall to Westminster who may have to adjust certain logistical matters relating to EU contracts and grants.

Kenealy says he has "a practical solution" to Scotland's continuing membership in line with the Scottish Government's White Paper on independence.

Firstly, it is not a 'continuing' membership by Scotland; the membership is a UK membership.

Repeating that mantra isn't going to get anyone very far.

He also says he would advise the SNP to abandon its proposals to keep the UK's budget rebate, and to drop its opt-out of the euro.

Both of those things aren't within the province of the Scottish Government, the SNP don't have any claim to the rebate because again, no contract. As to the Euro, I still believe that the SNP despite its 'keep the pound' routine plan to take Scotland into the Euro at the earliest opportunity. Westminster wouldn't do a deal on currency and the SNP need a lender of last resort. 

Writing in the Journal of European Integration, Dr Kenealy said:

"The EU would border on the schizophrenic were it to expel a part of its territory for exercising a democratic right to self-determination".

Again, he is wrong, Scotland wouldn't be 'expelled' it would have left the UK and couldn't claim the contract.

Kenealy added;

"If followed to the letter, the commission's position would create a sudden and sharp dislocation within the EU's single market, thus making it impractical. In offering a black and white statement on a matter better defined by shades of grey, the commission may have set itself on a collision course with the European Court of Justice at some future date. It is entirely inconsistent with the general principles of the EU to seek to expel the territory of Scotland, and potentially to strip millions of their EU citizenship, as a result of the exercise of a democratic right. The commission has thus come up with an immediate mechanism of withdrawal from the EU. That mechanism stands in contrast to the formal withdrawal mechanism (which) speaks to the impracticalities of suddenly cutting loose an existing part of the EU's territory. The delay and agreement strategy is there precisely to avoid sudden and sharp dislocations in the single market. The principle is that of no immediate or automatic withdrawal or expulsion. Greenland's withdrawal is illustrative insofar as it took six years for agreement to be reached on the terms of its departure. Implicit in the logic is recognition that the nature of the rights and obligations that flow from the treaties, the interdependencies that it fosters, and the movement of people and capital that is facilities, cannot simply be turned off or reversed."

The EU would not have stripped Scotland of its membership; the people would have done that if they vote yes.

If a Scot holds a UK passport, they are a British citizen, thus it could be argued successfully that they are an EU citizen.

If the same Scot takes a Scottish Passport, they automatically wouldn't have a claim, that being said, an independent Scotland would not be a member or recognised as a member no matter how many EU/British passport holders stay within Scotland's borders. People should not confuse a citizen's membership with that of a member state, they are entirely different things.

Scotland would be outside the European Union, like Brazil, Nigeria or Australia, that being the case, it is doubtful that any hearing could take place at the European Court because a motion to dismiss would possibly be in order.

As to his point that the Scottish Government could negotiate continuing membership under article 48 of the Lisbon Treaty, turn it up, there is no way to pass the right of veto, article 49 must be used by anyone applying to be a new member state.

Article 48 change won't happen, firstly, he is wrong to say 'continuing membership' and secondly, no way round the veto of members because that is an infringement of membership rights.

If anything is going to get into the European Court, attempting to deny member states their right of veto certainly is, the EU cannot afford to open that can of worms, because it can only end one way.

The European Court must come down on the side of existing recognised members, not people who say Scotland is still a legal entity within Europe after voting to leave.

One thing, Kenealy is right about is when he said:

"It is almost impossible to imagine the member states agreeing to allow Scotland to inherit a version of the UK budget abatement".

Scotland, if accepted would start from scratch, no rebates, no opt outs, nothing.

He added:

"The one special provision that would be most important for Scotland to retain would be the UK opt-out on various Schengen (passport-free travel) provisions."

Legally the rest of the UK would have to stick up border posts, so as the old saying goes, they are onto plums on that one if the SNP think they can have passport-free travel provisions with the rest of the UK.

SNP MSP Clare Adamson, said:

"Dr Kenealy's comments add to the considerable range of experts who have rightly dismissed the scare stories over Scotland's place in the EU. Those experts include honorary director-general of the Commission Graeme Avery, who said 'It's obvious that the common sense solution would be for Scotland's membership of the European Union to be effective on the same day as its independence'. Scotland has been a part of the EU for over 40 years and it is in absolutely nobody's interest for Scotland to be excluded - which is why it will not happen. Indeed the only threat to Scotland's continued place in Europe is the anti-EU agenda dominating Westminster, which could see Scotland dragged out against our will if there is a No vote in September."

Rhetoric but to address some points, Avery said 'It's obvious that the common sense solution would be for Scotland's membership of the European Union to be effective on the same day as its independence'.

Hardly a legal argument to hang your hat on or bet the farm, that requires 28 members states to all say yes, and that doesn't look like that will happen.

Adamson added:

"Scotland has been a part of the EU for over 40 years and it is in absolutely nobody's interest for Scotland to be excluded".

Does that include the EU member states that have internal domestic issues to address such as Spain? Why would Spain allow Scotland membership and boost the unrest in Catalonia?

Yet again assumptions presented as facts by the SNP.

Membership is a matter of contract law, Scotland has no contract, it really is that black and white.

Finally, I see Ms. Adamson is repeating the SNP line of "experts", as if that somehow by magic that will remove all legal argument in favour of the SNP's position.

It doesn't!

Yours sincerely

George Laird

The Campaign for Human Rights at Glasgow University