Towards a Continuity and Transition Treaty for Scotland's EU Membership

Abstract

Brexit raises important issues of the fragmentation impact in EU relations. The Scottish Government Report Scotland: A European Nation, was launched at the end of November 2016, hinting strongly at a second referendum of the Scots on UK independence as well as, significantly, EU membership and aspirations to self-determination in its international relations. Providing continuity in EU membership for Scotland should it breakaway from the UK, is the true challenge for the Union as a result of the Brexit referendum of 23 June 2016, both for its internal functioning and its external relations.Were Scotland to reject the UK government’s EU Withdrawal Agreement and seek secession from the United Kingdom, how might Scotland – legally – seek continuity in its rights and obligations as a Member State of the European Union rather than have to make a fresh application for EU membership? This is a relevant question because, at the level of the United Kingdom, being one single EU Member State comprising England, Scotland, Northern Ireland and Wales, Brexit lays bare the political and constitutional tensions between England and the devolved powers in Scotland and Northern Ireland in particular, both of which “devolved” jurisdictions voted overwhelmingly to remain within the European Union, while the larger UK partner of England together with Wales, reached a lesser majority in favour of Brexit. It is clear that continuity of Scotland’s membership lies squarely within the logic of the “openness” of the European Union in the text of the legal basis for applications for membership of the Union under Article 49 of the Treaty on European Union (TEU). Continuity is certainly intended under the core EU agenda that has existed since The Hague summit of 1969, which set the tone for enlargement as a means of consolidating the end to divisions on the European continent and fostering an ever closer union among the peoples of Europe. Precedence should logically be given to the continuity of Scotland as and/or Northern Ireland Member State that have already acceded under Article 49. Therefore, given the constitutional question marks overhanging the UK but also the substantive emptiness of the withdrawal procedure, Article 50 TEU must at least not be interpreted in such a way as to negate the 1972 Accession Treaty under which the Scots have legitimate expectations based on the rule of law and direct effect, not to mention other core principles, now well established in Scots law. Used in such a fragmentation scenario, Article 50 TEU undermines the deepening and widening model that underpins EU integration. Article 49 TEU provides an accession vehicle for Scotland’s smooth transition to EU membership in its own right should it indeed opt out of the UK and for its future at the heart of Europe.The question is: will the EU allow its historic prerogative of inclusive openness on the European continent to be subjugated to the purely destructive nature of Article 50 TEU, and the predicatable weakening of values, economic, political and legal uncertainty that will inevitably ensue, in EU and international relations?