Today we publish a paper which is the outcome of an ESRC research project exploring the legal issues surrounding membership of the European Union for an independent Scotland.  

We conclude that: 

• There are strong reasons to believe that in the event of a Yes vote in the September referendum the European Union would be prepared to open negotiations aimed at securing the membership of an independent Scotland. 

• It is most likely that these negotiations will have three parties: the Scottish Government, the UK Government and institutions of the European Union, most obviously the European Commission. 

• It is highly likely that the United Kingdom will continue in membership of the European Union. It is likely that Scotland will require to apply for accession by way of Article 49 of the European treaties, but Article 48 also offers a plausible route to membership depending upon the political will of the European Union and its Member States. 

• The accession of an independent Scotland to the European Union is not in any serious doubt. 

• The timetable proposed by the Scottish Government whereby full accession to the EU will be achieved by March 2016 is ambitious. There will be a number of important and possibly contentious issues to be dealt with in the negotiations and the timetable for ratification by each Member State is unpredictable. 

• It is unlikely, however, that an independent Scotland would find itself cut off from the rights and obligations that come with European Union membership for any period of time. 

In the event that formal accession has not been secured by independence day (proposed by the Scottish Government to occur in March 2016), it is likely that temporary provisions will be put in place to ensure that the rights and obligations arising from the EU treaties will continue to apply to Scotland in the interim period. 

Why is this? Scotland, as part of the United Kingdom, is already part of the EU, it is of economic, strategic and territorial importance to the EU, it is integrated into its institutions, its territory is subject to EU law, and residents of Scotland enjoy the rights of EU citizenship. The European Union is also committed to the principle of European citizenship, to the principle of democracy and to the protection of the fundamental rights of its citizens. It is also not in its interests to face the administrative upheaval which the removal of Scotland from the writ of EU law would bring. For all of these reasons it would seem that it is in the interests of the EU to ensure that the jurisdiction of EU law and the rights and responsibilities of citizenship continue to apply to Scotland and those resident in Scotland in any intervening period between independence and full EU membership.  

• Furthermore, the European Union treaties seem to contain an implicit obligation upon the institutions of the EU and the Member States, based upon the principle of European citizenship and the treaties’ fundamental rights provisions, to negotiate towards Scotland’s accession to the EU. This obligation could well be enforceable before the Court of Justice of the European Union.

Stephen Tierney is Professor of Constitutional Theory at the University of Edinburgh and Director of the Edinburgh Centre for Constitutional Law.  He is currently ESRC Senior Research Fellow under the Future of the UK and Scotland programme and leads the ‘The Scottish Independence Referendum: A Democratic Audit’ research project. He is also a member of the ESRC Scottish Centre on Constitutional Change.

Katie Boyle is a constitutional lawyer and Economic and Social Research Council researcher at the University of Edinburgh, working on ‘The Scottish Independence Referendum: A Democratic Audit’ research project. She is also a member of the ESRC Scottish Centre on Constitutional Change.