Ian Merrilees, a former teacher in European law, explains the logistics behind all the rhetoric over Scotland's place in the EU
MARIANO RAJOY, current Spanish prime minister and keen student of Scottish politics, is again talking down Scotland's chances of becoming a member of the European Union.
When Nicola Sturgeon visited Brussels shortly after the Brexit referendum to make it clear that Scotland voted to remain part of the EU, Rajoy tried to upstage her by telling a small gathering of journalists he would not allow Scotland to stay on once England and whatever remains of the UK leave.
"If the United Kingdom leaves Scotland leaves," he said. "Scotland has no competence to negotiate with the EU. The Spanish government rejects any negotiation with anyone other than the United Kingdom." (Spain’s Rajoy opposes EU talks with Scotland, Financial Times, 29 June 2016).
The circumstances in which we now contemplate Scottish membership of the EU have changed enormously since 2014, but Rajoy's message and ignorance of EU law have stayed the same.
This was essentially a reprise of his intrusion in the independence referendum of 2014. The timing and content of his intervention were badly judged. After Sturgeon's warm welcome from the president of the European Commission, Jean-Claude Juncker, and Martin Schulz, president of the European Parliament, Rajoy's spoiling tactic left him looking like a stray dog howling at the moon.
The circumstances in which we now contemplate Scottish membership of the EU have changed enormously since 2014, but Rajoy's message and ignorance of EU law have stayed the same.
In 2014 everyone was looking to Article 49 of the Treaty on European Union for clues as to how the EU would respond to Scotland voting for independence. Article 49 lays out the rules for admitting new members. It invites any European state respectful of democracy, law, human rights etc to submit an application to the EU Council.
If the politicians sitting on the council – all the EU's heads of state and government – agree unanimously, they forward the application to the Commission which then has the task of negotiating the details of membership with the applicant, a task that can take years. But, of course, if Rajoy, or anyone else present on the council, doesn't like the application, it gets smothered at birth.
In spite of claims by Rajoy and others trying to undermine the independence movement, it was never certain that Article 49 would have been applicable to an independent Scotland. But that argument can be left to slumber because we have now moved on to Article 50.
In spite of claims by Rajoy and others trying to undermine the independence movement, it was never certain that Article 49 would have been applicable to an independent Scotland. But that argument can be left to slumber because we have now moved on to Article 50.
So close on the printed page, articles 49 and 50 are poles apart in purpose and effect. Article 49 lets countries in, 50 lets them out. Article 49 has been used many times, 50 came into effect in 2009 and is about to be given its test run by the UK.
But the crucial difference, which seems to have escaped the attention of señor Rajoy and his legal advisers, is that Article 49 gives him the power of veto, 50 does not.
The important part of Article 50 is paragraph 2. It has already become common parlance in the media and is destined to feature in many news stories to come:
2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
That cross-reference to Article 218(3) is vitally important. It means that an exit deal has to be approved not by unanimity in Council but by a qualified majority. To cut a long story short, Rajoy – or more likely his successor considering the weakness of his minority government in Spain – would have to find at least seven other member states to support him should he want to scupper a Brexit agreement just because it permitted Scotland to be part of the EU.
But it would be unwise of him to even try. Brexit has already been a fractious issue for the EU. Many in the member states and institutions deeply resent the amount of trouble Cameron's referendum has caused, distracting them from serious problems about migration, the economy and the Euro etc. The Brexit distraction will get a lot worse. Once the Article 50 letter is delivered it will signal an end to the phony war we are currently in and the real hostility will be underway.
To cut a long story short, Rajoy would have to find at least seven other member states to support him should he want to scupper a Brexit agreement just because it permitted Scotland to be part of the EU.
It will take up an enormous amount of time and the EU would not welcome Spanish obstruction motivated purely by domestic concerns, not when it is trying to deal with the problems created by Westminster's ultimate act in a long history of obstructiveness.
Looking again at Article 50, there is a second important point to grasp. It refers to negotiations between the UK state and the remaining 27 members of the EU. There is nothing to say that only representatives of the Westminster government are allowed to take part in the discussion.
This is a basic principle in EU law, and also international law. It is states which have rights and obligations. Governments simply provide the personnel to do the talking, and if the UK government allows Sturgeon to join the Brexit talks there is nothing Rajoy can do to exclude her.
Nor can he do anything to restrict the items up for discussion. If Nicola Sturgeon wants to keep Scotland in the EU, she has to make sure the Brexit negotiations are about the terms on which England and Wales leave and Scotland (and possibly Northern Ireland) remain.
That is a political challenge, but there is nothing in EU law to say it cannot be done. It requires the support of the majority of the EU states, including that semi-detached member, the UK.
On that latter point, statements coming from London were initially discouraging, suggesting that the Westminster government was determined to take all parts of the UK with it into wretched isolation. However, two days into her job as prime minister, Theresa May dashed to Scotland to visit Nicola Sturgeon and took everyone by surprise by saying the formal notice to quit the EU would not be sent without the consent of the first minister.
But it would be unwise of him to even try. Brexit has already been a fractious issue for the EU. Many in the member states and institutions deeply resent the amount of trouble Cameron's referendum has caused.
"I’ve been very clear with the first minister today that I want the Scottish Government to be fully engaged in our discussions," she said, "and I will listen to any options they bring forward … I won’t be triggering article 50 until I think that we have a UK approach and objectives for negotiations." (May tells Sturgeon Holyrood will be "fully engaged" in EU talks, The Guardian, 15 July 2016).
Many commentators thought they heard a hint that Sturgeon would have a right to veto the start of Brexit talks, but that cannot be right, not unless May wants to see the Conservative party disintegrate and Ukip become the party of government.
A more sensible interpretation is that May realises she has to respect the 62 per cent of Scottish voters who chose to remain in the EU. She wasn't promising Sturgeon a veto, just saying she is prepared to wait until Scots make up their minds once and for all, presumably through another referendum, which of the two unions they want to stay with.
So it is possible that Theresa May and Nicola Sturgeon could eventually be in Brussels discussing with the other EU leaders the terms on which England and Wales leave and Scotland remains.
Some journalists in the UK contrived to put a negative spin on Sturgeon's visit to Brussels. The Guardian headline – 'Nicola Sturgeon's plea to EU leaders meets with sympathy but little hope' (29 June 2016) – was as wilfully misleading as anything you would expect from the rightwing tabloids that backed Boris Johnson and his mendacious Brexit campaign.
The EU would not welcome Spanish obstruction motivated purely by domestic concerns, not when it is trying to deal with the problems created by Westminster's ultimate act in a long history of obstructiveness.
Sturgeon's intention was never to secure a guarantee that the EU would support Scotland's case for membership. The EU leaders have made it clear they will not discuss their relationship with any part of the UK until they receive the formal notice to quit.
Sturgeon's task on her brief tour of the EU institutions was to remind everyone that Scotland had voted to remain and to force that issue on to the Brexit agenda. Experienced politicians like Juncker and Schulz know the value of a photo opportunity.
The mere fact that they were willing to give Sturgeon a warm welcome in front of the cameras, like the standing ovation given to Alyn Smith when he exhorted his colleagues in the European Parliament, was a sign they are listening.
These are significant steps in persuading all concerned that the issue to be addressed following the Brexit referendum is not the terms on which the UK will depart but the arrangements to be made for the departure of Wales and England.
People who talk about respecting the result of the referendum should really be talking about WExit.
Picture courtesy of Lauren Tucker
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