STEPHEN NOON, a senior strategist for Yes Scotland, says it's time for the anti-independence campaigners to reveal their legal advice on EU membership

So, Scotland may not be a member state of the EU on independence ...?

So say the anti-campaigners and Westminster politicians, but based on what? Perhaps now, given their criticism of the Scottish Government, the Labour and Tory parties will agree to publish their own legal advice on this question?

I raised this possibility on Twitter the other evening and got one response suggesting that the legal advice was what had been given by senior constitutional law experts to the Foreign Affairs Select Committee in the House of Commons on October 16.

So I had a look, and while these legal experts spent a great deal of time talking about international law, they did not address the EU law side of things at all.

This is a significant omission, given that the EU, as an autonomous legal order, will make its final determination on these issues within boundaries set by its own law. International law will influence but EU law will decide.

If the opposition parties are basing their argument that Scotland wouldn’t be part of the EU on a case, however eminently presented, that excludes EU law, then this is an important admission. It points to a fatal weakness in their case.

So I dug a little deeper, remembering a speech given by one of the UK government’s law officers, the Advocate General, Lord Wallace of Tankerness, at Edinburgh University on October 2 2012. If the UK government has legal advice on this issue, then Lord Wallace would be one of those involved in producing that advice.

Lord Wallace does mention the EU law aspects of this question, twice, including this statement, which highlights the autonomy of the EU legal order:

“The European Union constitutes a new legal order and when we consider Scotland's place within that order we have to consider it as a matter of international and EU law. It will simply not do to say that we can put the law aside in considering the future of the European Union.”

However, in the three or so pages that follow he does not give a single EU law argument to back up his claim that Scotland would be out of the EU (and therefore have to apply to get back in).

Again, it is totally incredible to think that the question of EU membership could be addressed in this way i.e. without any recognition, beyond lip service, of the fundamental role for EU law in determining Scotland’s future in the EU.

Those who argue that Scotland would simply cease to be part of the EU on Day One of independence haven't yet explained, or even tried to explain, how this would be achieved or even allowed in EU law.

We now have a provision in the treaties, which puts in place a mechanism for member states to negotiate their way out of the EU and, previously, had the precedent of Greenland – that territory went through a prolonged period of negotiation to remove itself from what was then the European Community.

It is simply not credible to suggest that the EU would spend two years negotiating to arrange Scotland’s withdrawal from the European Union, to then follow that with one or two additional years negotiating to get Scotland back in to the EU.

The new withdrawal clause, Article 50 of the Treaty on European Union (TEU), was put in place to protect the interests of people across the EU so that the effects of a territory no longer being part of the EU could be mitigated. In this light, and as Aidan O'Neill QC has argued, independence doesn't give Scotland a “get out of EU-gaol free” card.

Mr O’Neill also highlights the importance of EU citizenship and queries whether independence could result in people in Scotland being deprived of rights they’ve acquired as EU citizens. His conclusion is that an assessment of EU law would mean Scotland and the rest of the UK “should each succeed to the UK’s existing membership of the EU, but now as two States rather than as one”.

Given these developments in EU law in recent years, we should not accept a simplistic assertion that Scotland, our territory and our people, would simply cease to be part of the EU on Independence Day.

To do so would impinge on well established rights of thousands of individuals and companies across the EU and any legal act purporting to deliver such an outcome would be exposed to challenge under EU law. From what I can see, EU law would act as a substantial barrier to any attempts to remove Scotland from the EU.

It is sometimes useful to see the wider logic of the arguments made on this issue. What politicians in the No campaign say about Scotland would apply equally to Flanders and Wallonia if they became independent.

As Graham Avery, a former senior official in Whitehall and Brussels and Honorary Director-General of the European Commission, stated in evidence to the House of Commons, it is “inconceivable that other EU members would require 11 million people to leave the EU and then reapply for membership”.

We can all appreciate the absurdity of such a suggestion, especially considering that the seat of European government, and the European Parliament, could then be outside the European Union. And yet, that is what the No campaign would have us believe would happen.

So until the opposition can give us an answer setting out exactly how, in EU law, Scotland would cease to be part of the EU on independence, we should not listen to any of their claims about Scotland having to re-apply for membership.

Quite simply, if you aren’t outside the EU you don’t need to apply to get into the EU. You simply negotiate your terms of membership from within, a process that would take place in the 18 months between a Yes vote and the anticipated date for independence in 2016.

There is a standard of proof, surely, that even the scaremongers must meet. So let us see their legal advice – if they have any.