The SNP first set out their “Independence in Europe” policy in a February 1997 document entitled “The Legal Basis of Independence in Europe”, which is no longer either available or even mentioned on their website.

An SNP press release from 2002 (now deleted from their website) claimed of independence:

Scotland and the remaining parts of the UK would be automatic members of the EU. This is a view that has been supported by former President of the European Court Lord Mackenzie-Stuart.

Then in 2006, Alex Salmond wrote in the Scotsman:

Scotland is already a member of the EU and that would continue. It is not easy to leave the EU, as we saw with the attempts by Greenland when they won autonomy from Denmark.

In December 2007, Nicola Sturgeon said:

It is the very clear view of the SNP and of the Government that Scotland would automatically be a member of the European Union upon independence. There is very clear legal opinion that backs up that position. I don't think the legal position, therefore, is in any doubt.

So, as with other technical details to do with referendums, independence negotiations and the like, the SNP makes it all seem as easy as pie, clear-cut, a complete non-issue.

But a few days ago, Prof Robert Hazell, Director of the Constitution Unit at University College London, wrote in the Guardian:

Scotland would have to re-apply for membership of the EU. Renewed membership is not guaranteed. The reaction to Kosovo's claim to independence suggests that EU member states like Spain might block Scotland's application, for fear of encouraging similar claims from the Basque country and Catalonia.

The issue of who is legally correct is less significant, as this stage, than this key question: “is the SNP being honest with us?” Is Prof Hazell in a minority of one on this issue? Is the overwhelming weight of legal opinion in the SNP’s favour? If so, fine. But if not, they’ve been glossing over the truth. And if that’s the case, why should we trust them on anything else?

So let’s see. First the SNP case. They generally cite one of six people in support of their position, the first being the aforementioned Lord Mackenzie-Stuart.

But in fact, he only said this:

Independence would leave Scotland and something called the ‘rest’ in the same legal boat. If Scotland had to reapply, so would the rest. I am puzzled at the suggestion that there would be would be a difference in the status of Scotland and the rest of the United Kingdom in terms of Community law if the Act of Union is dissolved.

Not quite the same thing, is it? Secondly, the late Émile Noêl, former President of the European Commission. But his remark was actually as follows:

There is no precedent or provision for the expulsion of a member state, therefore Scottish Independence would create two new member states out of one. The remainder of the United Kingdom would not be in a more powerful position than Scotland. Unless Scotland expressed a wish to come out of Europe while gaining Independence, the will of the people would be interpreted as a desire to retain the European status quo.

Note: “no precedent”. And anyway, who said anything about the “expulsion of a member state? The United Kingdom is the member, not Scotland. So again, it’s hard to understand why the SNP would imagine this statement to support their “automatic membership” contention.

Thirdly, the late Robin Cook. But all he actually said was: “It's in the nature of the European Union, it welcomes all-comers and Scotland would be a member”. I would have little doubt that’s true. But of course it says nothing about the application process or entry conditions.

Fourthly, the SNP claims heavyweight support from Eamonn Gallagher, former Director General of the European Commission.

In my view, there could be no sustainable legal or political objection to separate Scottish membership of the European Community. A democratic Scotland, fully capable of accepting and exercising its responsibilities in the European Union, answers completely to the constitutional and statutory requirements of membership, and the Community – with its customary practical ingenuity – could readily resolve the institutional questions that arise in, for example, those of Scotland’s voting weight in the Council, membership of Parliament, membership of the Commission and so on.

It’s a similar argument to Robin Cook’s. But again, it’s by no means the same as the SNP’s claim of “automatic” membership.

Fifthly, French advocate Maître Xavier de Roux, who in 1989 said:

Scotland is a part of the Common Market territory by virtue of the United Kingdom’s accession to the Treaty of Rome and by application of the Treaty of Union of 1707. If the Treaty of Union was revoked and if Scotland recovered its international sovereignty, it would be accepted within the Common Market without further formality.

Ah, finally! That’s much closer to actual support for the SNP’s position. According to his argument, the EU Treaty includes Scotland within its remit as the UK was acting on Scotland’s behalf when it joined the European Communities in 1973. So, on independence, Scotland could not be regarded as a new applicant state.

Finally, Prof Neil MacCormick. But he’s a former vice-president of the SNP. Enough said!

So, it’s nowhere near 6-1 for the SNP. It's barely 2-1. But now the case against.

1. Dr Joe Borg, EU Fisheries Commissioner:

Legally speaking, the continuation of the membership would remain with the rest of the UK - less Scotland. And, therefore, Scotland, as a newly independent state, would have to apply for membership.

2. Dr Lorand Bartels, lecturer in international economic law at Edinburgh University:

Both as a matter of international law and as a matter of EU law, Scotland would have to negotiate its accession to the EU as a new member state.

3. Dr Matthew Happold, then Research Officer at the British Institute of International
and Comparative Law, in a 1999 paper:

Were Scotland to gain independence, it would be the rump UK, not Scotland, that would inherit membership of the EU. Scotland’s subsequent route to EU membership could well be a tortuous one. The SNP’s use of the phrase Independence in Europe seeks to persuade the Scottish electorate that it can have its cake and eat it, that Scotland can have both the benefits of independence and the security of membership of the European Union. However, the real situation is that an independent Scotland might end up with all the insecurities of independence and none of the benefits of EU membership.

4. Dr Jo Murkens, in a 2001 paper for the Constitution Unit entitled “Scotland's Place in Europe”:

If Scotland were to apply to become a member timing would matter because the EU is in a process of enlargement and the terms that an independent Scotland could negotiate would differ if the EU had 28 rather than the current 15 Member States ... The process of negotiation is unlikely to be easy even for Scotland. Evidence from other candidate countries suggests that the EU uses its pre-accession bargaining strength to extract the maximum concessions from acceding parties. Member States are obviously aware that once candidates have joined, existing Member States will never have such an advantage again.

5. Neil Mitchison. In this 2007 Sunday Herald article, Torcuil Crichton wrote:

Neil Mitchison, Europe's man in Edinburgh, is the latest to challenge the assumption that EU membership would be automatic, as the SNP insist. There would have to be negotiations for such an unprecedented situation, says Mitchison, the European Commission's representative in Scotland.

And Hamish Macdonell, writing in the Scotsman, said:

The Commission's representative in Scotland, Neil Mitchison, confirmed that Scotland would not be granted automatic entry into the EU, as the Nationalists insist.

"The situation is unprecedented and therefore negotiations would be needed. Things would have to be discussed and negotiated," he said.

So anyway, this has turned into a marathon post and I’ve lost count of the exact numbers of experts for and against the SNP’s position, but I would suggest that on balance, the view advanced in this Scotsman piece by Jim Murphy, Minister of State for Europe, is plausible:

Despite what the SNP claims, the weight of legal opinion suggests that, far from automatic membership, an independent Scotland would find itself outside the EU and needing to apply to regain membership. It means Scotland joining the queue of countries for entry which could cause not just delays, but massive uncertainty.

Of course, we can’t be certain that Murphy is correct, but that’s not the point. The key fact is that this is very clearly a murky legal area. And that in itself means that for over ten years the SNP hasn’t been being straight with us.

27/9/08 update: Lord Kerr of Kinlochard also disputes the SNP’s contentions.

4/8/09 update: Historian Michael Fry has said:

The prevailing opinion in Brussels, as I understand it, is that the continuing UK would inherit membership of the EU on the present basis. Scotland would not be treated as a successor country, and so would have to renegotiate its membership.