The Copenhagen Concealment

An in-depth look at the scenarios, discussions, research, misconceptions and concealment around an independent Scotland’s path into the EU. I have designed this as a resource, you can read through, and particular sections can be referred to individually, To jump to a point, or find the link for it, please use the contents.

CONTENTS

What is this report? 

Why is this important to me? 

Why don’t we have a definitive answer by now?

What process would Scotland need to use to join the EU?

The Copenhagen Criteria – The process to become an EU member state. 

How are countries assessed to have met the criteria and acquis? 

Would an independent Scotland apply to get into the EU?

Putting Different scenarios into the Algorithm

The 2014 Indyref Scenario – S30 Referendum & Whitepaper plans

A new S30 referendum – Growth Commission Implemented 

A Unilateral Declaration of Independence or Wildcat Referendum 

The Copenhagen Concealment 

Recap of coverups – What is the Copenhagen Report?

When will we hear more 

What do we ask

But, But, But… The objections and claims

“We already meet all the criteria.” 

“We will just use the Pound”

“We can just use the Euro”

“The EU will change the rules for us”

“The EU has said we would get in.”

Alyn Smith’s “Scotland in Europe” website 

The Salamone report & The Montenegro Scenario

The Hughes-Lock Article

The Deficit Red-Herring

We can just join EFTA in the meantime

Conclusion

What is this report ?  

When commentators, voters, politicians and journalists are discussing Scotland’s future relationship with the European Union, I see mistakes, misrepresentations and myths. Some of them are honest; some are deliberate attempts to deceive. 

I hope that by putting in place a comprehensive analysis with links to primary sources such as the specific treaties and policy papers, this can help us make informed, evidence-led decisions, and help more voters to understand the issues better. Not to claim to be an authoritative source, but to help voters to ask the right questions so that they can assess themselves. 

What was originally going to be a blog post has become a long read. I have split it into sections that can be referred to individually. 

At the end, I deal with several common objections that often come up when we discuss if an independent Scotland would get into the EU. 

I’ve tried to put it together logically and, roughly, chronologically. 

Why is this important to me? 

I believe in fewer borders, I believe in co-operation. I believe that Scotland has not been divided by constitutional issues: we have been quartered. This diagram breaks down how Scotland voted in the two referendums. 

I am in the largest ‘quarter’, like 28% of Scots I voted ‘No’, and I voted ‘Remain’. 

I was dismayed by the Scottish referendum debate tearing my community, friends and family apart with rifts that have not healed. I was appalled at the con that is Brexit to the point where I would more than likely support an independent Scotland in the EU over Brexit UK. If we had an independent Scotland I would want it to be in the EU – I simply believe that this isn’t on offer.  

Simply put: I would rather be in both unions than one. I would rather be in either union than neither. We can show, by reference to EU treaty law, to SNP publications and to precedent that what is on offer with independence is being out of both unions: the position fewest Scots support. 

We are all better off if we can speak from a position of knowledge, about the issues, process, problems and topic: and if we give more weight to treaties, and the official positions of bodies than personal commentary from individuals. I’ve tried to make this reasonably comprehensive, but I’m also happy to add to it.

Why don’t we have a definitive answer by now?   

It’s complicatedly simple. We absolutely know the criteria and process for joining the EU – it’s written in EU treaty law, we have 30 years of it being interpreted, practised and used to expand the European family of nations.

We know what is measured and how. We know what is negotiable, we know what the ‘red-lines’ are. We know precisely how long the process has taken for every member so far. We know the challenges the current countries in the process are facing. 

We don’t precisely know the situation by which Scotland would become independent and the exact choices we would make in the aftermath – but we can look at the current and past proposals, the routes to independence, the various scenarios. We can plug them into the algorithm and see if they compute. If we see a problem with a proposal, we can ask for answers – and we can draw our conclusion from the responses or lack of them.  

What process would Scotland need to use to join the EU?

We will come into this in more detail when looking at what happened in 2014. Several paths have been suggested, including the suggestion that we wouldn’t need to apply. That membership would be ‘automatic’, or that (while the UK was in the EU) it would be with ‘internal enlargement’.

The European Commission has been clear that an independent Scotland outside the EU would need to apply using the standard article 49 process – requiring the Copenhagen Criteria. 

I agree with many EU politicians, there is nothing, in particular, stopping Scotland from attempting the process, and I agree Europe would probably be sympathetic. I even agree that many parts of the criteria and process would be easy and quick for Scotland to meet. 

They have not, anywhere, said the process wouldn’t apply, that the process would be changed, or that the criteria would not have to be met. 

The Copenhagen Criteria – The process to become an EU member state

 There is no great mystery around the requirements and process. The EU is a body defined by treaty law. The process is known and in the public record – and we can see how it works in practice. It’s an algorithm—a sequence of rules and tests. 

 At the highest level of understanding, we can say The Copenhagen Criteria are the criteria countries need to meet just to be considered to be admitted to the EU. Meeting the criteria does not denote membership; it’s a prerequisite for eligibility. Here is the official definition and context as listed on the OECD website 

Link to the OECD site

This is the European Commission’s summary of the process by which countries join the EU:

Under Article 49 of the Treaty on European Union, any European state which respects the principles set out in Article 2 of the Treaty on European Union may apply to become a member of the EU. If the application is accepted by the Council acting unanimously after consulting the Commission and after receiving the consent of the European Parliament, an agreement is then negotiated between the applicant state and the Member States on the conditions of admission and the adjustments to the Treaties which such admission entails. This agreement is subject to ratification by all Member States and the applicant state.

Vivian Redding – European Commission

The Steps to become a Member State

i) The applicant country (potential candidate) submits its application to the country holding the rotating presidency of the Council of the European Union.

ii)  The European Commission makes an initial evaluation of the applicant country and submits its opinion to the Council of the European Union.

iii) In the light of the European Commission’s opinion, the Council of the European Union decides whether to consider the applicant a candidate country. The Council may also set certain conditions that need to be met before accession negotiations can begin.

iv) Once accession negotiations are opened, the European Commission investigates the candidate country in greater detail in a process known as screening. The resulting screening report identifies shortcomings in the candidate country that need to be addressed for it to comply with the body of rights and obligations binding for all EU Member States (also known as the acquis).

v)For the accession negotiations, the acquis is divided into 35 chapters, each of which covers a specific policy area. The negotiations process aims to help candidate countries prepare to fulfil the obligations of EU membership. The chapters cover the major aspects of EU policy, such as the free movement of goods, capital, and workers; economic policy, energy, transport, regional policy, foreign policy, fundamental rights, and more. Benchmarks are set in every chapter to guide the candidate towards fulfilling the obligations.

vi) Only after  the candidate country has reformed its national laws so that they match the acquis, only after every criterion has been fulfilled, and only after every chapter has been closed, only then are the agreements reached set out in an accession treaty, which must be signed by the candidate country and all EU Member States. The accession treaty must also win the support of the Council of the European Union, the European Commission, and the European Parliament. The candidate country then becomes an acceding country.

vii) After the accession treaty has been signed, it must be ratified by the acceding country and each EU Member State according to their national constitutional rules (i.e. that maybe a parliamentary vote, or a referendum). 

viii)The acceding country then becomes an EU Member State on the date specified in the accession treaty.

The EU provides more details on the process and conditions here.

And a factsheet covering the process here – 

https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/pdf/publication/factsheet_en.pdf

Conditions for membership

The EU operates comprehensive approval procedures that ensure new members are admitted only when they can demonstrate they will be able to play their part fully as members, namely by:

  • complying with all the EU’s standards and rules
  • having the consent of the EU institutions and EU member states
  • having the consent of their citizens – as expressed through approval in their national parliament or by referendum.”

There are three types of criteria- Political, Legal and Economic. 

“The first step is for the country to meet the key criteria for accession. These were mainly defined at the European Council in Copenhagen in 1993 and are hence referred to as ‘Copenhagen criteria’. Countries wishing to join need to have:

  • stable institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities;
  • a functioning market economy and the capacity to cope with competition and market forces in the EU;
  • the ability to take on and implement effectively the obligations of membership, including adherence to the aims of political, economic and monetary union.”

At a high-level summary – 

The Political principles are supporting Democracy, Rule of Law, Human Rights, Respect for and protection of minorities. 

The Economic criteria are – a functioning market economy, and the ability to cope with competitive pressure. ( With additional Eurozone criteria, but we can set them to one side for a moment).

The Legal requirements (required but not technically part of the Copenhagen criteria) are aligning with the 35 chapters of the acquis communautaire.

It’s important to understand that the Copenhagen criteria are not optional, negotiable, or very flexible. In terms of entering the EU, not meeting one of the criteria is the same as not meeting all of them. No exceptions have been made for as long as they have been EU treaty law. There may be temporary, time-limited transitional periods of some acquis. 

How are countries assessed to have met the criteria and acquis? 

Every accession may be slightly different, but countries are assessed against the criteria and the chapters of the acquis. In steps ii) and iv) it is the European Commission that assesses if the applicant country has met the Copenhagen criteria, where any shortcomings are and what is needed to meet them.  The EU assesses where they are, and as they put in place reforms and changes to become compliant, this is published publicly in annual reports.

By looking at these reports, you can see exactly what is measured and how it’s measured– allowing us to see the definitions that the EU use to determine if the criteria are being met. 

You can see the current status of applicant countries and the reports here:

https://ec.europa.eu/neighbourhood-enlargement/countries/check-current-status_en

The introduction to the reports outline the methodology that they use – one note it makes is on what they interpret as track-record. 

“It is important to note that these conditions do not serve as a simple checklist.

First, the interplay and interaction of all conditions, and their mutually reinforcing effects on the economy, are pertinent.

Second, there is an important time dimension involved. Meeting the economic criteria requires deep and structural reforms that take time to be accomplished.

The issue of track record becomes then very relevant. In this context, the concept of track record means the irreversible, sustained and verifiable implementation of reforms and policies for a long enough period to allow for a permanent change in the expectations and behaviour of economic agents and for judging that achievements will be lasting.”

European Union on the application and process

The reports look at a context of 12 months achievements within a more extended period of 3 to 5 years. To meet the good “track record” the behaviour and results must be consistent and well established over the full 3 to 5 year period or more. 

Here is the link for the 2019 report on North Macedonia

To give you an idea of the detail that these reports go into – the Macedonia Report is 111 pages long! 

This is the process. It’s specific; it’s well-understood, it’s bureaucratic, it’s lengthy. Things are not ‘nodded-through’ based on ‘yeah that seems right’.  Of the three types of criteria – Political, Legal and Economic, I am going to focus in more detail on the economic, because that will be of most relevance when we are later looking specifically at the Scottish scenarios.

The key economic Copenhagen criteria is “Functioning Market Economy.” 

The European Union are straightforward in how they determine if a country has a functioning market economy. They outline the criteria here: https://ec.europa.eu/info/business-economy-euro/economic-and-fiscal-policy-coordination/international-economic-relations/enlargement-and-neighbouring-countries/enlargement/economic-accession-criteria_en

The key points are – 

“To assess whether countries meet the economic criteria the European Commission monitors the following sub-criteria.

A functioning market economy requires

  • high quality of economic governance
  • macroeconomic stability (including adequate price stability as well as sustainable public finances and external accounts)
  • proper functioning of the goods and services market (including business environment, state influence on product markets, and privatisation and restructuring)
  • proper functioning of the financial market (including financial stability and access to finance)
  • proper functioning of the labour market”

Looking at what is measured in the existing progress reports, the economic governance that is monitored includes monetary policies such as interest rates, as well as debt to GDP ratios, devaluations, interventions. Macroeconomic stability, including price stability, is measured, including factors such as the exchange rate with the Euro. In order to meet the criteria that require a track record, such as price stability, track records are considered to be 4 to 5 years. 

This is a critical point. Meeting the economic Copenhagen criteria means demonstrating good governance of Monetary policy, so if you don’t govern monetary policy, interest rates, quantitative easing, or the ability to influence your exchange rates then it is literally impossible to meet the economic Copenhagen criteria. 

The Acquis – The Legal & Administrative criteria. 

The ‘Acquis Communitaire” are 35 chapters covering established EU treaty law, that applicant countries must align with them. The 35 chapters of the acquis are the legal, or ‘administrative’ aspects of the Copenhagen Criteria. They range from Free Movement of goods, taxation, Financial Control, Financial and budgetary provisions, Financial Services, Competition. 

Each of the chapters is negotiated and ‘closed’ separately. Each applicant country will be at different stages through the process. Each state will have different challenges; some met quickly, some not. For example – Montenegro closed some chapters in 2012 but is not expected to gain membership until 2025 or later, if at all. 

There may also be transitional arrangements negotiated on some points – for example; there may be a limited number of years limit put on freedom of movement or property rights on a new member even after accession. 

– this is for stability and to help prevent either speculative investment or capital and brain flight. 

How long on average, does it take to complete this process? 

https://en.wikipedia.org/wiki/Enlargement_of_the_European_Union

We can say on average, ten years from application to membership. 

Starting the process does not always mean eventual membership – Morocco, for example, was rejected. Norway has got to the end of the process three times only for it to be rejected in a confirmatory referendum. Iceland stopped the process. 

Some regions seeking to join also see some fundamental problems that can make the process pause – Kosovo is not recognised as a state by some EU members, which blocks it from completing the process. 

Montenegro does not have a functioning market economy – it unilaterally adopted the Deutschmark, then the Euro, without meeting the Maastricht criteria. The European Central Bank has advised that this is incompatible with the treaties. 

The process seems clear – why are we still arguing about this? 

It is curious there is so much confusion. It’s essentially an algorithm – a series of steps with rules. We can say where we would or wouldn’t pass the stages as they stand, and we can even tell what would be needed to change the rules to allow us to meet them where we don’t. Generally what is being disputed, sometimes on purpose, is – The process that we would be required to go through, the starting position and claims about meeting the criteria. 

Would an independent Scotland apply to get into the EU?

There’s been some discussion around should an independent Scotland be in the EU, but it’s generally considered that if Scotland were independent, there would be some sort of post-Independence vote, and it’s generally considered that with the pro-EU sentiment in Scotland, we would more than likely vote to express a desire to be in the EU. 

Putting Different scenarios into the Algorithm. 

So – we know in detail the process by which countries apply to become EU members. We know the criteria that apply, and we understand how they are measured. 

What we are able to look at is the available information on the proposed scenarios for paths to independence and the process that would be required, to see if how and when it would be possible.

Scenario One: The 2014 Indyref – S30 Referendum & Whitepaper plans

Brexit has changed Scotland’s constitutional relationship with the EU since 2014, but it is still relevant to autopsy what happened. Understanding the claims and counterclaims made in 2014 is essential for context. It shows what the SNPs proposal was, the legal backing it had, establishes what the European Unions position is – and shows many areas where SNP and the Yes Campaigns were in direct contradiction to the EU. It also exposes some direct falsehoods which still do the rounds. The lies repeated so often they have entered the narrative. 

The process was a contentious point in 2014. The SNP position, in the whitepaper and through the campaign, was that Scotland would simultaneously negotiate an exit from the UK and continuing membership of the EU within 18 months of a yes vote on 18th September 2014. 

Here’s what the Whitepaper said:
https://www.gov.scot/binaries/content/documents/govscot/publications/strategy-plan/2013/11/scotlands-future/documents/scotlands-future-guide-independent-scotland/scotlands-future-guide-independent-scotland/govscot%3Adocument/00439021.pdf

“Will Scotland be a member of the EU? Yes. It is the current Scottish Government’s policy that Scotland remains part of the European Union. Between a Yes vote in 2014 and independence day, Scotland will agree the terms of our continuing membership of the EU. This will happen while we are still part of the UK and part of the EU, ensuring a smooth transition to independent membership.”

A couple of points here – it’s implied that Scotland will have no gap in membership and we just need to agree on the terms for that. The Whitepaper recognised that article 49 is the process by which countries join the EU. However, it claimed that article 48 could be used to simply keep Scotland in the EU. 

The Legal Claims, the Legal Advice, The illegal Cover-up.

The whitepaper made a number of legal-sounding claims including – 

“There is, within the EU Treaties, a legal framework by which Scotland, a country that has been an integral part of the EU for 40 years, may make the transition to independent EU membership in the period between the referendum and the date on which Scotland becomes an independent state. Article 48 provides a suitable legal route to facilitate the transition process,”

Scotland’s Future – ‘The Whitepaper’

And

“There is no Treaty provision that would require Scotland to leave the EU on independence.”

Scotland’s Future – ‘The Whitepaper’

Alex Salmond was asked if these claims were based on legal advice. He claimed that they had taken legal advice on EU membership, but he then refused to reveal it. 

He was taken to court by the information commissioner to be forced to release it: after refusing to disclose it in response to a freedom of information request by Labour MEP Caroline Stihler. 

On October 23rd Nicola Sturgeon, then deputy, admitted they had not received any advice from law officers on whether an independent Scotland would automatically get EU membership and inherit the UK’s existing opt-outs.

The Scottish taxpayer was charged tens of thousands of pounds for the privilege of not having legal advice, and having this fact hidden from them.

https://www.telegraph.co.uk/news/uknews/scotland/10367759/Alex-Salmond-spent-20000-keeping-secret-non-existent-EU-legal-advice.html

This is an important point – it establishes a lack of credibility

It establishes that when the SNP Scottish Government at the highest levels were making claims about EU membership, both in the whitepaper and in the campaign – they had not done any due diligence. They had not taken any legal advice. They had not understood the process – or, if they did, they deliberately hid it. 

Voters were asked to vote for an independent Scotland unequivocally on the basis that we would still be in the EU from day one of independence – this was the position and reassurance stated in the whitepaper. And it was a deliberate lie. 

Scottish Parliament Committee Enquiry 

Following the embarrassment that there was no legal advice, a Scottish parliament committee launched an inquiry. On 12 December 2013, the Scottish Parliament committee European and External Relations agreed to the following remit for its inquiry:

“An inquiry to examine the Scottish Government’s proposals for an independent Scotland’s membership of the European Union as set out in “Scotland’s Future” ( The Whitepaper”) and “Scotland in the European Union”.

https://www.parliament.scot/parliamentarybusiness/CurrentCommittees/70496.aspx

Around this time the President of the European Commission, Barroso, had said it would be “extremely difficult, if not impossible” for Scotland to join the EU.

https://www.reuters.com/article/us-britain-scotland-barroso/barroso-ruffles-scottish-feathers-over-eu-membership-idUSBREA1F07320140216?feedType=RSS&feedName=worldNews&rpc=69

In response to that intervention, the SNP convener of the committee, Christina McKelvie, wrote to the European Commission. Here is her letter. 

https://www.parliament.scot/S4_EuropeanandExternalRelationsCommittee/Inquiries/20140310_Convener_to_Vivianne_Reding_European_Commission.pdf

https://www.parliament.scot/S4_EuropeanandExternalRelationsCommittee/Inquiries/20140310_Convener_to_Vivianne_Reding_European_Commission.pdf

The letter asks two key questions. 

This is looking for confirmation for the SNPs two key claims in the Whitepaper

i) That article 48 would be the process that would apply to Scotland. 

ii) That Scotland’s position was Sui Generis and we would not leave the EU upon independence.

The European Commission replied. 

https://www.parliament.scot/S4_EuropeanandExternalRelationsCommittee/Inquiries/Letter_from_Viviane_Reding_Vice_President_of_the_European_Commission_dated_20_March_2014__pdf.pdf
On the provenance of evidence...

It’s worth taking note of how authoritative this letter from the EC is:

  1. This is an official letter to the Scottish parliament committee
  2. from the Vice-President of the European Commission
  3. Repeating the European Commission’s position, which has been consistent since 2004.
  4. Stating The European Commission is the body that interprets EU Treaty law.
  5. The letter is a matter of public record published on the Scottish parliament’s site. 
As evidence, and in particular as evidence on the path Scotland would need to take to enter the EU, this letter is impeccable.
It would be hard to find something with a better provenance, and more authority, to speak on it. 

In the two key paragraphs, it first states that an Independent Scotland upon leaving the UK would be outside the EU, and would need to apply for membership using the normal process. This directly contradicted the Whitepaper, Nicola Sturgeon, Alex Salmond and the yes campaign.  

It’s now a moot point. Scotland, as part of the UK, is already outside the EU. An independent Scotland now would be a third party with regards to the treaties. The next paragraph sets out the process by which Scotland could become an EU member state. 

Under Article 49 of the Treaty on European Union, any European state which respects the principles set out in Article 2 of the Treaty on European Union may apply to become a member of the EU.

If the application is accepted by the Council acting unanimously after consulting the Commission and after receiving the consent of the European Parliament, an agreement is then negotiated between the applicant state and the Member States on the conditions of admission and the adjustments to the Treaties which such admission entails.

This agreement is subject to ratification by all Member States and the applicant state.

Vivian Reding- Vice President European Commission 2014

So both in 2014, and now, we can confirm that the process by which Scotland would need to apply is the Copenhagen criteria. Shockingly Nicola Sturgeon, the Scottish government, and indeed the Yes ‘movement’ continued to campaign on the basis that our membership would be essentially automatic and nodded through using article 48 with no other criteria to be met, just a process simultaneously negotiated between the UK, EU and Scotland in the months following the vote.

 It’s worth noting that Nicola Sturgeon, went so far to say still there was “No Risk” to Scotland’s place in the European Union with a Yes vote. 

Fiona Hyslop, Cabinet Secretary for Culture and External Affairs was challenged on the implications of the advice in the letter and responded here:

https://www.theyworkforyou.com/sp/?id=2014-05-07.15.4

Fiona, essentially, claims that Vivian Redding wasn’t talking about Scotland. She claims she was just talking about the general process under article 49. She relies on a freedom of information request from Dr Marianne Klingbeil, who is the deputy secretary-general of the Commission, and Jakob Thomsen, who is from the general secretariat of the Council, both stating that neither institution holds an analysis on Scotland’s membership of the EU under articles 48 or 49.”

Consider what she is implying. She is suggesting that the European Commission, in response to an official request from the Scottish Parliament about Scotland’s path to the EU, isn’t referring to Scotland in its reply ( because it disagrees with the SNP whitepaper position that article 48 would be the path, which was made without legal advice). 

Fiona then makes an ‘appeal to ignorance’ saying that the commission does not have an analysis specifically about Scotland’s process for joining. Given that the “Applicant State” of an independent Scotland was theoretical to the point where it was not even clear if it would exist when it would exist and what it’s currency, constitution and citizenry would be it is not surprising that this analysis, much like Salmond’s legal advice did not exist. Using the lack of the existence of the advice to support a particular position seems to be a recurring trend. 

So, in the end, what were the findings of the committee?

The full Findings of the Parliamentary Committee are still hidden from us six years later.  

It would be interesting to see the original findings of the cross-party committee, but unfortunately, they are not available to us. This shows a weakness in the committee system in Holyrood – a parliamentary committee spoke to 30 expert witnesses to come to a researched and evidence led conclusion on the path an independent Scotland would take to join the EU. 

From what we can see of the evidence it seems much of it disagreed with and directly contradicted, the SNPs position that had been drafted into the Whitepaper without legal advice. The initial draft report reflected this – but SNP control of the committee forced a more favourable redraft, and the initial draft report was suppressed. 

Jamie McGrigor, Conservative MSP who was on the committee stated to parliament

“I believe that the first draft of the findings of the inquiry contained in the clerks’ report was a true, balanced and fair record of the evidence that we received from the witnesses who contributed to the inquiry. Under the code of conduct for members, it would be remiss of me to go into detail as to what that first draft contained, particularly with regard to its final conclusions, but I do not believe the final published report to be an evenly balanced reflection of the evidence presented to us.

Members will note, on page 82 of the published report, that Alex Rowley argued: “that the Committee should agree the draft report without any proposed changes.” That was supported by me and Hanzala Malik. Further to that, on page 89 of the final version of the report, members will see that Hanzala Malik, supported by Alex Rowley and me, argued that the original draft of the report of 24 April should “be included in an annexe as a minority view/statement” to the report. Both suggestions were voted down by the SNP members on the committee, thus suppressing views that had twice been expressed.” 

Jamie McGrigor, Conservative MSP

So – The EU said we would need to apply using Article 49, The Scottish government continued to argue, implausibly, that the UK could simultaneously negotiate Scotland’s EU membership from within while negotiating the breakup of the UK. 

Labour MSP Lewis McDonald summarised criticism of the committee’s findings to the Scottish Parliament, saying – 

“The European institutions advise that “when a part of the territory of a Member State ceases to be part of that state … the treaties will no longer apply to that territory.” It is true that the witnesses took different views on that proposition, but nothing in the report justifies simply disregarding that very clear advice, as the cabinet secretary (Fiona Hyslop) is clearly keen to do.

“Any trade unionist, lawyer or business leader will tell Fiona Hyslop that you cannot negotiate simultaneously on the same set of issues with two separate parties, and at the same time represent the interests of one of those parties in negotiation with the other. You simply cannot do that.”

“The proposition that the UK Government could represent Scotland in negotiating accession to the EU and, at the same time, represent the interests of the UK in dealing with the accession of a potential competitor country simply does not stand up. Only a Scottish Government—presumably—could negotiate Scotland’s accession to the EU, and it could do so only once a settlement had been reached on the division of assets and liabilities with the continuing UK and the two states had gone their separate ways. That is why the plan that Scotland would join the EU on the same day as it left the UK simply could not happen. The point when negotiation over the UK was completed would decide when the negotiation on the terms for Scotland joining the EU could start.

That question is not answered in the committee’s report, and perhaps it could not be. It is instead for ministers to acknowledge that they cannot negotiate UK secession and EU accession at the same time, and they should set out a realistic timetable for both so that voters can make an informed choice in September.”

Lewis McDonald Labour MSP

In Summary: The SNP and YES campaigns position in 2014 was not based on legal advice, was contradicted by the UK government, by members of the Scottish Parliament committee considering the question, by the European Commission and by EU treaty law. The SNP spent public money hiding the fact and suppressed the initial findings of the committee. This is all a matter of public record – yet the SNPs position was repeated so often that for many it is still accepted. 

What would have happened if we had voted Yes in 2014?

Going by the information we have seen above – in the public record of what was said in parliament, what we are allowed to see from the committee’s findings, and the stated position of the EU commission – we can game-play it. 

1) The SNPs position that in the 18 months following independence, they would simultaneously negotiate EU membership and UK exit could not have happened. Besides what we have learned from Brexit about the length of two-way negotiations, and that 18 months was always optimistic – Scotland could not have STARTED negotiating EU membership until the exit from the UK was complete, and before that the UK would not have been able to negotiate on Scotland’s behalf. 

2) The EC had stated that upon our independence, we would have become, by the act of leaving the UK, a country outside the EU. 

3) To join the EU, we would need to apply under Article 49, the ‘Copenhagen Criteria’ process.

4) Whether or not a currency union was official, iScot would have been using Sterling without recourse to setting monetary policy – making meeting the economic copenhagen criteria impossible, as we will see.

If we had voted Yes in 2014 the SNP would have knowingly, deliberately, taken us out of the European Union, despite claiming that there was no risk and that our membership would be automatic.

Scenario – A Unilateral Declaration of Independence (UDI)

Either by the Scottish Parliament, by a majority of Scottish MPs, or following a ‘wildcat’ independence referendum without a Section 30 order.

Within 48 hours of losing the referendum in 2104, Alex Salmond suggested that there was a route to declare independence without winning a referendum. A “Unilateral Declaration of Independence” (UDI) based on some democratic fig leaf – such as having a majority of Scottish MPs – Which thanks to ‘first past the post’ can be achieved with a minority of votes. 

Growing impatience among the independence movement still has many calling for a UDI, and SNP MPs agitating for a ‘plan-b’ or a wildcat referendum. Setting aside if we think this is likely, or if there is or isn’t a mandate for it – if we were to presume there was one agreed as in 2014, and that the Leave/Yes side won then what it would mean for an Independent Scotland’s European options? 

First – the SNPs unlikely option from 2014 is no longer available. Brexit has happened, and Scotland is outside the EU, the UK is outside the EU, so there is no possibility of negotiating continuing membership from within using article 48. Scotland would be a 3rd country with respect to the EU treaties and would need to apply using the normal article 49 process. 

There are numerous problems and issues caused by these routes, but limiting it specifically to the question of EU membership – the key issue is it is a legal path that’s constitutionally accepted in the UK, and if it gains international recognition. 

The Recognition Condition

Without Recognition by every member, it is impossible to meet the legal Copenhagen Criteria – and even if that were somehow bypassed, any member not recognising a state would have the ability to veto its accession. 

We have a live example with proof of this: Kosovo declared independence from Serbia on 17 February 2008, but is still a divided country and is only partially internationally recognised. Serbia has not recognised it, and the sizeable minority of Serbians that live in Kosovo have had some recognition for their alternative assembly against independence. 112 countries in the united nations have recognised Kosovo at some point, although 15 have recently withdrawn their recognition, so currently, 97 out of 193 members recognise them. Serbia approached the International Court of Justice to render an advisory opinion on the legality of Kosovo’s declaration of independence. The advisory opinion, which is not binding over decisions by states to recognise or not recognise Kosovo, was rendered on 22 July 2010, holding that Kosovo’s declaration of independence was not in violation either of general principles of international law, which do not prohibit unilateral declarations of independence. Currently, 22 out of 27 European Union members recognise Kosovo. 

It would need to be unanimously recognised by every EU member state in order to be able to become a member of the EU. 

Is there any reason to think that this would be an issue for Scotland? 

In 2014 much was made of the theory that Spain would veto an independent Scotland in order to dissuade their own separatist movement in Catalonia. However, they did also later say that Spain did not intend to veto Scotland. 

In actual practice, as we have seen, the threat to veto or not to veto is largely academic – because the opportunity for an EU member state to not ratify a new member comes at the end of the process – and Scotland would not progress that far due to the economic criteria. But an important caveat here is the Spanish requirement for the respect of internal state constitutions. Spain is only willing to accept a path to independence that is in accordance with the UK constitution – e.g. a referendum agreed at both Scottish and National levels of government with a section 30 order that temporarily devolved the constitutional power to have a referendum to Holyrood. 

Spain failed to recognise a wildcat vote in Catalonia on the basis that it did not respect the Spanish constitution, which requires that constitutional change – such as Catalonia breaking away, requires a national (Spain-wide) vote. 

For that reason, if Scotland’s path to independence were constitutionally challengeable within the UK, Spain has confirmed they would not recognise Scotland’s independence. This would put a block on membership of the EU.

Spain will not block Scotland’s entry into the European Union if independence is legally achieved.” 

Miguel Angel Vecino Quintana – Spanish Consul General in Edinburgh

Spanish Foreign Minister Josep Borrell, who in an interview with ‘Politico’ said that in the case of an agreement between London and Edinburgh to hold a referendum, and that referendum for Scottish independence passes, Madrid would recognize the newly independent Scotland

The disruption and uncertainty following a UDI might be hard to envision. There would likely be years of legal contesting by the United Kingdom, and there would be, overnight, a huge impact on economic stability. 

No official currency union with the UK would be available – the currency paths would be Sterlingisation, or potentially unilaterally adoption of the Euro Montenegro style. Neither of these options gives governance of monetary policy, interest rates, central banking, devaluation / quantitative easing or the ability to enter an exchange rate mechanism. 

Scenario – an ‘Indyref2’ with Section 30 agreed with Westminster, followed by Growth Commission plans Implemented 

Setting aside if we think this is likely, or if there is or isn’t a mandate for it – if we were to presume there was a referendum agreed as in 2014, and that the Leave/Yes side won then what would it mean for an Independent Scotland’s European options? 

The Growth Commission

Following 2014, the SNP commissioned the growth commission report. As shown in ‘promising the impossible’ – by the time of the vote, the inconsistencies and other promises in the Whitepaper had become a stick to beat the yes side with, not a bolster for their case.

The growth commission report was heralded as ‘more realistic’, updating of the economic case for independence. However, there has been much criticism of the methodology and the findings. For example, it uses 12 small countries as a benchmark to suggest Scotland would be successful – but those 12 countries are not a representative or random selection, they have been cherry-picked to show a particular conclusion. 

It accepts treasury conclusions that Brexit will make the UK poorer, but ignores any analysis on the greater impact of an independent Scotland. 

There are more detailed analysis and criticism here, but I’ll stick to the implications for EU membership.

https://www.sustainablegrowthcommission.scot/

In the main, that means looking at the currency option. The growth commission advises that, given the close links between Scotland and the rest of the UK, we should use Sterling. It’s first preferred recommendation as the best option would be a formal currency union – but acknowledges that this was ruled out by the UK. 

C1.55 The case for a sterling currency union remains strong since Scotland and the rest of the UK remain a close approximation to an optimal currency area and would continue to be so for some years after Scotland became independent. It would also provide continuity and stability. That said, critics argue that it would mean that Scotland’s government would cede effective sovereignty over monetary policy while the rest of the UK would become exposed to the financial policy actions of the Scottish Government.

C1.7 The Commission recommends that the currency of an independent Scotland should remain the pound sterling for a possibly extended transition period. 

C1.8 In the longer term, if it were in the rounded economic interests of Scotland to develop its currency arrangements Scotland would, of course, be able to introduce its own currency. The Commission recommends that such a future decision should be based on a formal governance process and criteria set out clearly in advance of voters making a decision on independence. Such an approach is an absolute necessity to maximise certainty and stability and to minimise risks.

C1.9 We recognise that this means that the Scottish Government would not secure monetary policy autonomy in the initial period following an independence vote. Our view is that the advantages of stability from retaining Sterling outweigh the benefits of introducing a new Scottish currency, at least in this initial period in short to medium terms.

The growth commission currency plan is to keep using Sterling in an informal currency union where we would have no governance monetary policies, interest rates and quantitative easing. It sets out six economic tests* that would need to be met before Scotland launched our own currency. That currency would then be pegged to Sterling. They estimate that meeting the six tests would be around the end of the first decade after independence. That seems optimistic – it’s relying on them correctly predicting a decade of unprecedented record-breaking growth, but taking it at face value, it still doesn’t solve the issue. 

It should be noted that at the SNP conference the members attempted to overturn the acceptance of this recommendation by passing a motion that the policy should be to move to a new currency “As soon as practicable”, however in practical terms, the SNP are just interpreting this as …when the six conditions are met.

https://www.theguardian.com/politics/2019/apr/27/snp-votes-for-scotland-having-its-own-currency-if-it-leaves-the-uk

C2.8 Given the need for a transition period, the need to build institutional capacity and the timescales associated with establishing fiscal credibility (see the recommendations in Part B of this report), we anticipate that these six tests are unlikely to be met until towards the end of the first decade following a successful independence vote. However, it is possible that we have underestimated the economy’s growth performance and potential, and it will occur more quickly.

Under the growth commission plans, when would Scotland meet the “Functioning Market Economy” criteria? 

While using Sterling informally, and while pegged to Sterling, we would not have governance of monetary policy. Once a new currency was unpegged, there would be a period of volatility before it stabilised. Only once the currency had stabilised, and we had control over monetary policy could we start to build the 3 to 5 years track record.  

Adding that up:

· 2021: Scotland votes to leave the UK 

· 2023: Optimistic Separation completed in 2 years from the UK 

· 2031: Completing the first decade of Sterlingisation, meeting the six tests to launch a Scottish currency 

· 2033: Complete 2 years of pegging then float 

· 2034: a Year of currency volatility then stabilisation

· 2037-9: – Complete 3 to 5 years of establishing a track record in good governance, interest rates, financial control, price stability and functioning financial markets. 

By the late 2030’s we would potentially be in a position to meet the Economic Copenhagen criteria, if we had unprecedented growth and there were no further economic shocks in that time like the 2008 crisis, Brexit, or the pandemic.

Remember this is to the Growth Commission’s timetable. 

Presuming that in the meantime we had kept our laws aligned with EU law, and had maintained democracy, we could then complete membership application for ratification. At that stage, presuming that we successfully negotiated each of the chapters and got unanimous support, support of the European Parliament, Support of the European council and ratification by each member states national parliament we could become a member of the EU. 

Tellingly, the Growth Commission report itself does not specifically comment on the path to EU membership. In fact, it only mentions EU membership three times – 

One – in the assessment of the impact of Brexit on the UK 

Two – in relation to Ireland

Three – that keeping an Independent Scotland’s debt level below 60% of GDP aligned with the EU’s Fiscal Compact is consistent with Scotland’s aspiration for EU membership.

The Growth Commission report, which is being touted as the new, more detailed, more realistic, whitepaper, does not mention the Copenhagen Criteria at all. 

This is all optimistically presuming that growth is exceptional, and there are no global or local financial shocks to Scotland in the post-Brexit landscape. 

The currency options outlined in the Growth Commission, mean Scotland would not control monetary policy, interest rates, or be able to enter an exchange rate mechanism: making it *literally impossible* to meet the Economic Copenhagen criteria.

The Copenhagen Concealment 

What is the Copenhagen Report?

The #CopenhagenReport is a tax-payer funded feasibility study into how an independent Scotland would meet the Copenhagen Criteria and 35 chapters of the Acquis. 

It has come to light thanks to the diligence of Richard Reid, a previous Information controller, who has been pursuing a ‘freedom of information’ FOI request and appeals to the request for over a year now. 

The Scottish Government first denied any advice existed.
The Scottish Parliament then said that the advice existed, but they couldn’t release it because they had not fully developed their policy.
When the information commissioner rebuked them, they released it; in a hugely redacted form saying that it is not in the public interest for us to know the if, how or when we would meet the criteria. 

We saw in 2014 that the SNP had written their whitepaper, and campaigned, without having legal advice on how Scotland could become an EU member. We also saw how the SNP majority committee took advice from the European Commission, then refused to publish the draft report and instead redacted it to support their original view, rather than going where the evidence led them. 

Following on from Brexit, the question of Scotland’s place in the European Union became even more pertinent. Specifically, the question of if, how and when an Independent Scotland would meet the Copenhagen Criteria. To that end, the SNP commissioned a tax-payer funded report to analyse what we would need to do to meet the criteria, in particular the 35 chapters of the acquis. ( note the acquis are not the exact same as the Copenhagen Criteria, they are the legal chapters of EU treaty law that need to be aligned with as part of the process.)

There is a redacted version of one part here: The section that looks at the 35 chapters of the acquis and sees what would be needed for Scotland to meet them and, crucially, how long. 

Since the UK voted narrowly to leave the European Union in 2016, Brexit has been the SNPs primary justification for seeking another independence referendum. 

Given that they had claimed in 2014 that an independent Scotland would automatically gain EU membership, it was naturally their narrative that Scotland could become independent to escape Brexit – and rejoin the EU.

Many SNP MPs, MSPs, certainly campaigners and hangers-on have continued to spread the narrative. That an Independent Scotland that would quickly, easily be in the EU. That the EU should ‘leave a light on’ for Scotland. 

Perhaps, having been caught out without legal advice in 2014, they now have new legal advice on the new situation – The SNPs updated more realistic whitepaper was the growth commission. What does the Growth commission report say about the process by which an independent Scotland would become an EU member? 

Nothing. Merely mentions once that it would be an ‘aspiration.’ 

Given the fact that Ministers were stating the policy of an independent Scotland being in the EU, it is reasonable to ask what research and advice they are basing that on. 

The Copenhagen Report

Mister Richard Reid has done exactly that with a freedom of information request to the Scottish government in August 2019. The full chain of request and reply is available here – 

https://www.whatdotheyknow.com/request/copenhagen_criteria?unfold=1

The tactics and chain or responses to this Freedom of Information request are telling in themselves. Here is a brief summary – 

11th August 2019 – Richie Reid makes FOI request to find out 

“Any correspondence or analysis the Scottish Government has carried out on our eligibility for EU membership, either if we could continue to “remain” in the EU or having to reapply under the Copenhagen criteria once the UK has left.”

FOI request Richard Reid

There are a couple of enquiries back and forth. 

You can read the full information request, delays and half responses, and eventual response (so far) here. But when it was appealed it went to the Information Commissioner – The commissioner’s finding against the Scottish Government gives a timeline. 

What is clear Scottish Government have had, for two years, had much more information on an independent Scotland’s potential to be in the EU than they have shared publicly or are willing to release. 

https://www.whatdotheyknow.com/request/copenhagen_criteria

The obvious conclusion from that is that the findings do not support their narrative. Certainly, we would think that during their regular comments on Brexit, especially during the GE19 campaign, if they had research showing that an independent would, would easily or would soon be able to join the EU then they would have been expected to shout it from the rooftops = not fight its publication. 

But, But, But… The objections and claims.

“Scotland is already in the EU” (used before Brexit)

This claim was made in the whitepaper “Scotland is already a member of the EU” – This was, categorically, untrue. Scotland is a part of the UK, which was an EU member state. Scotland was not, and never was an EU member state. It has never appeared on any EU list of member states. It has never been a signatory to any EU treaty. 

“We already meet all the criteria.” 

Sometimes combined with “of course we meet all the criteria, we were in the EU for 40 years. Simply: we don’t. As a basic example as a region of the UK, we don’t have a track record in management of monetary policy, and we couldn’t have that until many years after independence. Our current structures, government, economy etc. are not going to be the same as when we would be independent. 

“We can just join using the pound.”

Also – “It’s oor pound”, and “We can use any currency we like.”   

Using the pound informally is the current position of the SNP based on their Growth Commission report. In terms of joining the EU, It is a non-starter. The economic criteria of ‘functioning market economy’ is measured by showing a track record in managing monetary policies such as Interest rates and quantitative easing; which Scotland couldn’t show as it would all be decided in the non-EU rUK. 

It has been suggested, commonly online but also claimed in the Salamone Report, that the EU would make some sort of exception, or there could be a transitional arrangement agreed. 

There has been nothing from the EU to suggest this and very good reasons to think this could not be allowed. 

The purpose of the Economic Criteria is to maintain the stability of the Union. Imagine, hypothetically, that an independent Scotland became an EU member state while using the pound Sterling in an unofficial currency union. We know that we are heading into an uncertain time already with Brexit. The complexities of the UK breaking up will also create volatility. 

At any point during the application process, or at any time while Scotland was a member, the remaining United Kingdom could at any time unilaterally quantitative ease and devalue the pound – in essence, the non-EU rUK could at any time wipe billions off an EU member state. There is nothing to suggest that the EU as a body, or EU member states, would accept that situation. 

“We can just use the Euro.”

It is possible that an independent Scotland could use the Euro as an unofficial currency. The way that Panama uses the dollar, or the way that the Growth Commission plans to use GBP in ‘Sterlingisation’ In terms of meeting the Copenhagen Criteria 

There is actually a direct test-case for this – Montenegro. The Montenegro position is interesting because while the #CopenhagenReport is mostly redacted, it does refer to Montenegro in a footnote. 

However, Montenegro’s unilateral adoption of the Euro is considered a major problem. And this is with a currency that the EU controls, not Sterling! 

The European Central Bank has said that Montenegro’s unilateral adoption of the Euro put it in breach of treaties. 

It’s hoped, but by no means certain, that it can be solved in the negotiations 

Radoje Žugić, Montenegro’s Minister of Finance, has stated that “it would be extremely economically irrational to return to our own currency and then later to again go back to the euro.”[44] Instead, he hopes that Montenegro will be permitted to keep the euro and has promised: “the government of Montenegro, will adopt some certain elements, which should fulfil the conditions for further use of the euro; such as adopting fiscal rules.”

This is all taking time. Montenegro declared independence in 2006. It might be in the EU by 2026, but that is by no means certain. In the past 14 years, it has closed negotiations on only 9% of the 35 chapters – Scotland might close more chapters quickly, but the fact it is taking a country a 10th of the size of Scotland ( 600,000 people), who is already using the Euro, over 20 years to join should be a warning when the #CopenhagenReport is suggesting it is worthwhile looking at as a pathfinder. 

“The EU Will bend or change the rules to let us back in.”

Also “The EU will let us in just to annoy the UK” This is wishful thinking, there is no basis for this, and there is no suggestion that the EU would waiver their tight criteria and process for Scotland. Bear in mind as well that there are other countries going through economic reforms currently, and new members that went through the full process. The countries currently obeying the rules would certainly object to having to meet them if exceptions can be made for Scotland. The countries that joined recently would likely object that Scotland would not have to go through the same reforms they did. While individual MEPs may give favourable indications, this is not the same as a settled stated policy of the EU as a body. 

The position of the EU is that it is tightening the interpretation of the criteria – not loosening them. We can tell the EU accession strategy and policy because it is in the public record. This is from the accession strategy paper in 2014

The accession process today is more rigorous and comprehensive than in the past. This reflects the evolution of EU policies as well as lessons learned from previous enlargements. The process is built on strict but fair conditionality with progress towards membership dependent on the steps taken by each country to meet the established criteria. A key lesson from the past is the importance of addressing the fundamentals first.”

EU Strategy Paper

 But let’s suppose that there was some will or movement to change the Copenhagen Criteria to allow Scotland to fit- what would that process look like? 

Where are the criteria defined? 

The criteria are defined in the Treaty of the European Union (TEU), so changing the criteria would require treaty change.  This is a failure to understand what something actually involves. The rules are set down in EU treaty law. This is not so easy to change, but say for the sake of argument, there was significant support among enough members and bodies to pursue that. 

How is EU law changed? 

Here are the guidelines on how EU treaty laws are changed. This is the process that would need to go through 

https://www.europarl.europa.eu/RegData/etudes/ATAG/2019/640167/EPRS_ATA(2019)640167_EN.pdf

There are a couple of different procedures by which EU treaties can be changed; 

An accession treaty can also clarify or amend treaties, in practice, this has only for transitional arrangements specific to the new member state. These are the transitional arrangements that Salamone refers to. In the past, they have been used for temporary arrangements such as holding sales of agricultural land and restrictions on freedom of movement. 

These have been time-limited and negotiated – while they are showing flexibility on parts of the Copenhagen Criteria, there is no suggestion that such a transitional arrangement could be applied to something as fundamental as currency. 

The steps to change EU treaty legislation:

  1. The European Commission, The European Parliament or an EU member state proposes a change with a treaty reform proposal. 
  2. If the proposed change is for something that is not the “Treaty of the EU” (TEU) or does not increase the EU’s competencies, then the ordinary process applies. 
  3. The EU Council needs to agree by a majority to consider the proposal
  4. The EU Council consults with the European Central Bank and the European Parliament 
  5. Then there is a convention convened by the European council president to arrive by consensus a recommendation for the intergovernmental conference or no convention is required, and the European Parliament gives its unanimous support to move to intergovernmental conference. 
  6. The draft treaty is then negotiated by the intergovernmental conference
  7. If the treaty is passed by the intergovernmental conference, then the treaty goes to be ratified in each individual member state according to their constitution – normally through their national parliament. 

In Summary: It’s not a simple, quick or risk-free process, and no single branch of Europe  the executive, parliament or council, have unilateral control over it. This is why we must suspect any case based purely on a particular politician. If what would be required for Scotland to have membership is treaty change, any one MEP or president does not have the power to overrule that. It should also be pointed out that, like the acceptance of membership, which is itself a treaty change, – individual member states have an opportunity to veto at that point. 

Why would any state want to Veto a loosening of the rules?

We have looked at the question of the Spanish Veto – which was threatened to stop Scotland acting as a pathfinder for Catalonian independence. Let’s also consider Croatia – a new member from the 2013 expansion, which is a similar size to Scotland – Croatia has a shrinking population just over 4 million. 

Review Croatia’s path to EU Membership here

Croatia applied to become a member in 2003, became a member in 2013 with some time-limited transitional arrangements on freedom of movement.

Is Croatia a pathfinder for Scottish Membership?

The commission said in 2013

“Croatia’s accession reaffirms that the perspective of European integration remains open to all aspirant countries which show the necessary will to implement political and economic reforms.”

European Commission

 While Croatia formally applied for membership in 2003, it’s government had formed a ministry of European integration as early as 1998. The initial target date for Croatia’s membership was 2007, but negotiations were more difficult than thought, in particular with disputes with neighbouring states. 

There were many reforms needed in Croatia – not all of them popular. Eventually, membership was ratified by 66% of the votes – but on a smaller than 50% turnout, and 

Would the new rules apply just to Scotland (unlikely), all new applicant states – what about states that are already going through the process, do new rules apply to them and what does that mean if they have budgeted and planned and made compromised for the old rules? 

“The EU has already said we would get in.”

The EU has not said we would get in. Quite the opposite.

The first thing to question and identify here is – what do people mean by ‘the EU’ when they claim this? The EU is a body defined by treaty law, and the European Commission interprets the Treaty laws. The European Commission, and the European Council, have stated that they do not have any analysis – as indicated in parliament by Fiona Hyslop when questioned: 

“We have a freedom of information request from Dr Marianne Klingbeil, who is the deputy secretary-general of the Commission, and Jakob Thomsen, who is from the general secretariat of the Council, both stating that neither institution holds an analysis on Scotland’s membership of the EU under articles 48 or 49.”

Fiona Hyslop

We have seen that the process by which the EU determines if a country meets the criteria is extensive, requiring negotiation on each of 35 chapters and annual economic reports. Many of the criteria, such as the economic criteria to show annual accounts and a track record of good governance are, simply, impossible to meet or to demonstrate before independence. When this objection is drilled down to, it is often taking as the ‘EU’ a favourable comment by some European MEP or politician, often taken out of context. 

A clear example of this is this story from ‘The National.”

https://www.thenational.scot/news/17754150.senior-meps-positive-indy-scotland-rejoining-eu/

Dig into what the MEPs actually said – they agree that the normal process would need to be applied, they say that it might be easier to join because we would already meet many of the 35 chapters.

“But there is a procedure which would need to be followed. You become a candidate and all the boxes need to be ticked.”

MEP

All the boxes being the Copenhagen Criteria and the detailed process. 

“I would support [an independent Scotland] becoming a member of the EU, of course. The EU is a union of free nations and [on] any state joining the EU everyone has to agree of course.”

Ivan Stefanec, Slovakian MEP

Jose Manuel Fernandes, an MEP from Portugal, added:

“I like Scotland. I’m not against Scotland joining the European Union if it does become an independent country and fulfils the Copenhagen criterion.

Jose Manuel Fernandes, an MEP from Portugal

So – three people that do not have the final say agree that Scotland potentially could as long as it met all the criteria and every nation agreed. 

More recently Donald Tusk said The EU would be “Enthusiastic” about an independent Scotland joining 

https://www.theguardian.com/politics/2020/feb/02/donald-tusk-eu-would-be-enthusiastic-if-scotland-applied-to-rejoin

Lets’s look at what he actually said – 

“Emotionally, I have no doubt everyone would be enthusiastic here, in Brussels and more widely in Europe, but still we have treaties and formalities. But if you ask me about our emotions, there’s a genuine feeling. You will witness only, I think, empathy.”

Donald Tusk

We see a pattern here – Yes there is general sympathy, empathy, a general feeling of support – but each time caveated by saying – there are treaties, there are formalities, there are boxes that need to be ticked, there are processes – 

How was this interpreted “Alyn Smith, the SNP MP and former MEP who championed Scotland’s case in Brussels, said Tusk’s remarks proved “Scotland would be welcomed back into the EU with open arms as an independent country.” Cleary taken in context they say no such thing, or at least nothing to say the criteria wouldn’t apply.

Alyn Smith’s “Scotland in Europe” website 

http://www.scotlandineurope.eu

Alyn Smith had a, now possibly archived, website specifically regarding Scotland’s relationship with the EU. Here is what it had to say on the Copenhagen Criteria: literally nothing. An entire website, about Scotland and the EU, that doesn’t ONCE mention the criteria or process that we would need to follow to get in. That was a red flag – and led to an analysis of some very careful use of language.

Scotland in the EU is still the general narrative, it is what the case for independence is being built on – but sometimes, and we have seen this with Alyn Smith, there is very careful choice of language, which once you spot it is ‘lying by omission.’ 

An independent Scotland ‘In Europe’,

You might see this phrase being used – “An independent Scotland in Europe”  or “Take our place among the European family of independent nations” or “European Scotland”

None of these refer to Scotland being a member of the European Union.

Alyn Smith moved to this from “an independent Scotland in the EU” It should ring alarm bells. What does it mean? Well – it gives the impression an independent Scotland would be part of the EU, without specifically saying so. It could just mean Scotland still part of geographical Europe, it could mean in EFTA – it could mean anything. 

I would recommend, if you see ‘In Europe’ being used – ask for clarification if that means “In the EU”

“Gers doesn’t show the economics of an independent Scotland.”

This is true – it shows the starting position with current levels of tax and expenditure to the best assumptions and to a methodology entirely within the SNPs control. 

There is a conundrum here – Many attack GERs as unreliable public accounts. This puts them into a bind with regards to EU membership. 

  • If GERs are not valid, accurate, public accounts then it would not be possible to use them to provide the several years audited national accounts that are required to show we are meeting the economic Copenhagen criteria. 
  • If GERS they ARE accurate – then that admits to the broader structural deficit that would also make meeting the criteria, and launching a currency, both more difficult. 
The Salamone Report 

Anthony Salamone is Managing Director of European Merchants, the Scottish political analysis firm. He is a prolific writer, but I have picked out this blog post in particular because it has often been quoted at me. This opinion piece by Anthony Salamone is often one of the top results used to challenge the assertion that an independent Scotland would not meet the economic criteria. Often in this blog post, sometimes with reference to an actual report. Here is the blog post – 

Here is the actual report – https://www.merchants.scot/insight/scotland-eu-blueprint

There are many points of value in this opinion piece: it starts by accepting the EU position that an independent Scotland would need to apply to be a member using the normal criteria. It also accepts it is not predestined that an independent Scotland would join the EU – but it does this on the basis that an independent Scotland might choose not to join, rather than the scenario that an independent Scotland would choose to rejoin, but not be able to. 

But there are sweeping statements and wrong assumptions made

“Scotland is a European nation with an advanced democracy and a developed free-market economy. It should meet the political and economic dimensions of the Copenhagen criteria fairly straightforwardly.”

Anthony Salamone

Well, we have seen that the key barrier to Scotland joining is meeting the criteria of having a functioning market economy – which would require our own currency and monetary policy on interest rates, Exchange rate mechanisms, quantitative easing and price stability.

The UK has a developed free-market economy, and Scotland is part of the UK, an independent Scotland does not, and could not, meet the EU’s definition of a functioning market economy.

How does he solve this currency conundrum? He solves it by not mentioning it in the blog post, and by skipping over it in the report. As we have seen – the currency situation of an independent Scotland is critical to understanding if, when and how we would meet the Economic Copenhagen criteria, but what Salamone says on currency basically amounts to “we would have to commit to joining the Euro, but we wouldn’t do so because it wouldn’t be popular.”

“As an obligation of membership, Scotland would have to make a good-faith commitment to join the euro. However, despite its pro-European sentiment, the euro is remarkably unpopular in Scotland. Opinion polls suggest that only 18 per cent of people believe that an independent Scotland should take up the single currency. Committing to the euro would therefore be politically challenging. The currency is a highly salient issue in the independence debate and reflects the strong economic focus which pervades Scottish and British politics.”

Anthony Salamone

We approached Salamone for specific comment on how an independent Scotland could meet the criteria, but he did not respond.  

This blog post, and it should be noted he is editor of the LSE blog on which it appeared, is an extraction from his ‘blueprint.’ 

He does go into more detail there saying:

“The Government should seek transitional provisions on the monetary policy acquis, the extent of which will depend on whether it has continued unilateral adoption of the pound sterling or it has established its own national currency. The Government should seek transitional provisions on the economic policy acquis, including necessary elements of the Stability and Growth Pact, based on its prevailing fiscal circumstances owing to the establishment of the Scottish state.”

Scotland’s EU Blueprint – Anthony Salamone

He does concede – 

“It would be very unusual for a state of Scotland’s economic size and development not to have a national currency when applying for EU membership.”

Scotland’s EU Blueprint – Anthony Salamone

Given that the SNPs Currency plan in the growth commission is for a decade or more of Sterlingisation, this is an admission by omission that there would be no quick path back into the EU. 

When Salamone suggests that we would need to request ‘transitional arrangements’, it is an admission that we are do not meet the Criteria. What is missing from this is any analysis suggesting that this is likely, possible or precedented.

The Montenegro Scenario

It’s unclear how Salamone’s transitional arrangement while using Sterling could be approved by EU, and unanimous EU member support – it would essentially require an open-ended transitional exemption from the Economic Copenhagen criteria and the EUs stability principles. The closest precedent might be the Montenegro scenario, but no transitional arrangement has yet been possible there. 

“Depending on the Republic’s currency situation, it will have to request transitional provisions from the Union on the monetary policy dimensions of the acquis. Its situation may change during the accession process.”

Scotland’s EU Blueprint – Anthony Salamone

This is an acknowledgement of the issues, but not one that offers any solution. Let’s, giving the benefit of the doubt, say that the EC as a body was desperate to bend the rules to allow Scotland to become a member – they do not have the power to unilaterally decide that. Giving Scotland a ‘Transitional Provision’ on the Economic Criteria would allow us to get through to the next stage of the process, but no further – any state would still have the opportunity to veto membership.  

  The Hughes-Lock Article 

An Independent Scotland and the EU: What Route to Membership?”

In the event of independence, how might Scotland pursue EU membership? Kirsty Hughes and Tobias Lock explore the principal options, arguing that ensuring Scotland’s continuity with EU laws and policy would ultimately be more important than attempting to secure a fast-tracked route to membership, which would be completed in any case after Brexit.

 Tobias Lock and Dr. Kirsty Hughes wrote an article from a legal point of view, suggesting that Scotland could easily rejoin the EU. It was published here- 

https://www.europeanfutures.ed.ac.uk/article-4667

It’s no longer available there, but it is archived here  https://web.archive.org/web/20200120211058/https://www.europeanfutures.ed.ac.uk/article-4667

I approached the author at the time with several questions: See Thread

To his credit he stated that he was a lawyer and had only written with regards to the Legal criteria, and that he agreed the economic points I raised were valid issues.

A quick note on the European Futures blog of the Edinburgh Europa Institute 

As a side note here – the Lock piece, like Antony Salamone’s report, appears to be a thoughtful piece that has been presented, chosen, checked and edited onto an academic looking “European Futures” produced by the “Edinburgh Europa Institute.” 

Academia is a small world – looking at Anthony Salamone’s CV – 

“Anthony was Founding Managing Editor of European Futures, (the) academic blog on European affairs; Steering Group Member of the Edinburgh Europa Institute; Co-Convenor of the Edinburgh Europa Research Group …He has designed logos and brands and built websites, including for European Merchants, the Edinburgh Europa Institute and European Futures.”

So, Anthony created the group, designed the website and then edited the blog that these pieces were chosen to appear on which are promoting his paid political think-tank. It’s important to point out that doesn’t necessarily mean he is wrong, it’s just an indication that while he writes and works in the academic field these publications do not seem to be in any sense peer-reviewed or validated by anyone beyond himself, and that isn’t always clear. 

We could have Anthony Salamone speaking as the president of Edinburgh Unis European Union society being quoted in a report by think tank “European Merchants” in a “European Futures” editorial blog for the Edinburgh Europa Institute – and it would be Anthony Salamone being quoted by Anthony Salamone in the blog that Anthony Salamone edits for the group Anthony Salamone is a member of! 

The Deficit Red Herring. 

“But we don’t need a deficit under 3% to join.” Sometimes paired with “Scotland doesn’t have a deficit/debt.” 

It is true that you don’t need a deficit to be under 3% to join. When Croatia joined the EU, it’s deficit was 5.6%.

Some confusion has been made on this point, often on purpose, with the Maastricht criteria for joining the Euro, which have tighter restrictions on the deficit than the Copenhagen Criteria. It should be noted that while Croatia joined with a deficit of 5.6% – that isn’t a blank slate for Scotland. Croatia had accepted an EU designed ‘deficit reduction plan’ (essentially Austerity ) So by the time of joining it had established the 3-5 year track record of the deficit moving in the right direction, and indeed it is now below 3% 

Scotland’s structural deficit, as measured by the SNP in GERs to their methodology, is depending on the year 8-9% – and post Covid could be as high as 24% or more. What’s more – if Scotland were newly independent, it is expected that there would be costs involved in setting up a new country. The estimates of these costs vary wildly, but if an independent Scotland maintained current spending and income, and took on additional costs, then our deficit would be going in the wrong direction. 

There is also the point that Scotland’s deficit is structural. The growth commission, and disgraced finance manager Derek MacKay, simply say that we will quickly economically grow our way out of any deficit. There is no precedent for this level of growth in a mature economy, and no suggestion on how they would achieve it – or indeed what is stopping them creating this growth now for Scotland’s economy within the UK.  

The key economic criteria stopping Scotland from joining isn’t deficit, it’s ‘functioning market economy’ which we could not meet first without having a track record of 3 to 5 years of our own currency. 

Setting up a new country has costs, setting up a new currency has costs; both have risks. The starting point of the independent deficit is based on current tax and spend levels – it could be significantly different depending on if spending is cut, taxes are raised, or some combination of the two.

No plan has been forthcoming that looks at all the economic factors measured together and their interplay. For example – as per Derek MacKay’s claim that an independent Scotland could half our £13 billion deficit purely through significant, unprecedented, unspecified, growth – that’s based on current spending levels. If we also add in the setup costs of a new country, the borrowing with no credit rating, the required funds to go into a currency reserve to launch a currency – the true economic picture might have a significantly worse debt to GDP ratio – which would then be an economic block even if the deficit was down. 

“We can just join EFTA in the meantime.” 

Possibly. As a position, this would be a significant U-turn for the Europhile SNP. This was this position stated on Alyn Smyths “Scotland in EU” website, the one that failed even to mention the Copenhagen Criteria; he argued against EFTA (Norway style) saying it would be a bad deal for Scotland.

As someone who is anti-Brexit, I wouldn’t say I was completely closed to this: however – 

  1. Scotland probably could join EFTA (with the agreement of Iceland, Liechtenstein, Norway and Switzerland.)
  2. Any potential gains from EFTA need to be offset against the losses of not being in the UK. It’s noticeable that Kate Forbes has dropped the plans to have an annual “economic case for independence” report to counter her own government’s GERS report.
  3. If Scotland went the EFTA path, it should not be presented to Scots as a pig in a poke – where the SNP woo soft-No remain voters with a solution to Brexit, then reveal afterwards that EU membership was never possible and insist EFTA is what people voted for. 
  4. Even if there is no deal initially, It might take several years for the final Brexit UK/EU relationship to take shape, which might very well resemble the key trade points of EFTA. 
  5. EFTA does not include – Customs Union, Common Agriculture and Fisheries; Common Commercial Policy; Common Foreign and Security Policy; Economic and Monetary Union.

Conclusion

For several years the SNP have deliberately tried to keep from Scottish voters the truth about if, when and how an independent Scotland would meet the Copenhagen Criteria for EU membership.

In 2014 they were perfectly willing to take us out of the EU to win independence. They are perfectly willing now to present independence as a route into the EU in the full knowledge that by their own timetable we would be unlikely to get back in for 15 years or more – and that is still a very uncertain case.

When the SNP ask us to trust them, we can look at the Copenhagen Concealment, what are, essentially. Three cover-ups.

  1. Alex Salmond and Nicola Sturgeon tried to cover up the fact that they did not have legal advice in 2014
  2. The SNP have blocked publication of the original findings of the parliamentary committee tasked with looking into the claims the SNP made in the Whitepaper.
  3. They have a taxpayer funded #CopenhagenReport showing an analysis, but first denied it existed, and now are saying it is not in the public interest to release it.

I would support an independent Scotland in the EU over a Brexit UK, even though it may cause more trade barriers and be difficult.

However, that is not on offer. What is on offer with independence is being outside of both unions. We are in danger of hyperbole, double-talk and secrecy causing us to end up with the very position that fewest Scots support.

If Brexit has taught us anything, it is that voters deserve to be fully informed of the facts before making important votes. We can see from the history here, and their current actions, that the SNP are desperate for voters to remain uninformed.

I have asked several SNP politicians. Several times, to explain if, how and when an independent Scotland would meet the Copenhagen criteria.

https://vimeo.com/429207593

All have refused to answer.

My request is that this report informs you, but you do not take my word for it. Instead, ask them yourselves

“Please Can you tell me if, when and how an Independent Scotland would meet the Copenhagen Criteria for EU membership application?”

Good Luck!

Disagree with me! 

If you question any of my findings, that’s fine – I recommend the SIFT methodology when you are not sure if something is true online – 

· Stop

· Investigate the Source 

· Find trusted coverage 

· Trace claims, quotes and media back to the original source. 

Correct me! Challenge Me! Call me out!

 “If someone is able to show me that what I think or do is not right, I will happily change, for I seek the truth, by which no one was ever truly harmed. It is the person who continues in his self-deception and ignorance who is harmed.”

Marcus Aurelius 

If you see anything you can show is a mistake, and can back it up with links to primary evidence. Then please contact me via comments or on twitter @BingoDemagogue

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