Scotland: Independence

Lord Kerr of Kinlochard Excerpts

Thursday 5th December 2013 Lords Chamber

[Lord Kerr of Kinlochard (CB)]

This document is 650 pages long and I congratulate the noble Lord, Lord Forsyth, on reading them all. It is, however, rather longer on assertion than on argument. I will just touch on the EU angle.

The aim as set out is to achieve by March 2016 a seamless transition into membership. The SNP says that the treaty base appropriate to the exercise is Article 48 of the treaty. That is not the view of the EU institutions or that of any of the member states that have so far spoken. I doubt if it is the view of HMG, although I will be interested to hear what the Minister has to say. Most people seem to believe that Article 49 would be the treaty base for the negotiation. They are clearly “all out of step but oor Wullie”. However, wishing it so cannot make it so. There will be a genuine negotiation to be had under Article 49. That cannot formally start until Scotland is an independent sovereign state. It could possibly be pre-negotiated; that would be possible if all member states were to agree that there could be pre-negotiation both of the substance of the deal and of transitional arrangements, which would follow during the inevitable hiatus after Scotland, as a sovereign state, could sign the treaty—some date after March 2016—and during the process, which might be many months, possibly more than a year, of ratification by all the other member states, because it is their treaty, too. It is possible that you could pre-negotiate both the substance and the transition. However, that would not be easy, and would require every member state to agree that they were prepared to do it. Judging by some statements that have been made, some member states might not want to.

The negotiations on substance would be serious. The text says that Scotland does not wish to apply to join Schengen. However, the treaty says that all applicants must undertake that they will join Schengen. It is perfectly possible to envisage a derogation for Scotland; no one would want a real physical frontier on the Tweed. However, that derogation would have to be negotiated. You cannot just assert that “We will not apply, therefore it will not apply to us”. The same applies to the euro. I do not believe that if Scotland had opted—and the remainder of the United Kingdom had agreed—to continue to use sterling, Scotland would be obliged to join the euro. In any case, Scotland would not be eligible, such would be its inherited debt and deficit. However, the treaty says that you take a commitment to join when you are eligible, and getting a derogation on that would have to be negotiated.

Most delightfully of all, the big book says that the budget rebate would continue. It also says that Scotland would be one of the richest countries in the world. The continuation of the rebate would play extremely well in Lesmahagow or in Linlithgow, but not necessarily as well in less rich Latvia or Lithuania, and it would be up to the Latvians and the Lithuanians to decide. I am not clear about a lot of things in the big book but it seems certain that if and when an independent Scotland achieved membership of the European Union—and I believe that it would—all Scots would be paying more into the EU budget per capita than would all English, Welsh or Northern Irish. It also seems absolutely clear that you cannot achieve, by March 2016, the seamless transition which is so boldly asserted in this book.