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Scottish Independence and Scotland's Future
Scotland in Europe
Scottish independence: ‘Yes vote will end in court’
Article from the Scotsman by SCOTT MACNAB


SCOTLAND’S EU membership could be decided in court if there is a Yes vote in the referendum, according to a former European Court judge.

But Professor Sir David Edward believes Scotland would not be left outside Europe if voters back independence, and could negotiate its membership from inside.

Leaders such as European Commission president Jose Manuel Barroso and European Council head Herman Van Rompuy have indicated that Scotland would be left outside the EU and forced to re-apply.

However, Sir David insisted negotiations could get under way after a Yes vote to “agree amendments to existing treaties to accommodate the new situation and not, as Barroso and Van Rompuy suggest, one or more accession treaties”.

Sir David, who indicated he will be voting No in the referendum, said the issue could come before the European Court of Justice, where he used to sit, in a submission to Holyrood’s Europe committee.

An “individual or company” could raise an action to clarify their rights and obligations after independence, which could be referred to Luxembourg.

Comment by Dr James Wilkie

Professor Edward Has never been a member of any European court, in the sense of one exercising an all-European jurisdiction. There is no such institution as a European Court of Justice. He of all people should know that, and also that the one and only such all-European court is the European Court of Human Rights in Strasbourg, which has nothing whatever to do with the European Union. The ECHR comes under the auspices of the 47-member Council of Europe (CoE).

The one in which he served is the Court of Justice of the European Union, which despite its euphonious title is no more than an internal administrative tribunal of two houses for adjudicating on regulations, directives and similar routine matters relating to the EU acquis communautaire This tribunal acts only within the 28-member EU. Nowhere in the legislation setting it up does the word "European" appear, aside from the court's title.

The EU court has no jurisdiction whatsoever over genuine European law emanating from the major all-European institutions like the CoE, OSCE or UNECE. The internal administrative regulations of one single organisation are not European law, not least when that organisation is half the size of all the others.

Deliberate misrepresentations that would land the directors of a private sector organisation in court on charges of fraud are the stock in trade of the EU, not least the abuse of the expression "European" in a sense deliberately intended to mislead.

It is standard diplomatic practice to identify prospective national leaders of countries the policies of which one wishes to influence, and get them under control. The SNP has evidently been so identified, and in its naivety and ignorance of the broader aspects of independence is unable to see how it is being manipulated, not least by vested interests behind Euromove. Blundering from one false move to another, it falls into the same error as student agitators by putting up an artificial Aunt Sally with no substance in order to have something to throw bricks at.

Nobody will block EU membership for Scotland if that is what the Scots want - and it is precisely here that the SNP is putting up a particularly unconvincing case, because this above all is an issue on which it has no idea what it is talking about.