 I very much ladies and gentlemen. I now welcome our panel of witnesses to the meeting. We have Professor Sir David Edward, Professor Shona Douglas-Scott, Dr Kirsty Hughes and Professor Andrew Scott. I thank you all very much for taking the time to come and speak to us at the committee today. Rwyf i'n gweithio, sy'n sefydliadau sy'n sefydliadau yng Nghymru a'u 62 per cent o'r ymddangos yn y Uniau Europea, ac rydyn nhw'n gweithio i'r parlymyniadau a'u gweithio i ddechrau i ddechrau iawn edrych am Dart mabernig i'r Geu a'wn imbi, a'r Maenau i'ch dweud amubiadau, mi'n ffordd â chi'n eu ffordd, i'r newid i'ch gael Lablaethol a'r Unתor yn ymym Bros хотwydd. Before that, in the view of the European Union, what is the best way forward for taking the mandate forward and protecting Scotland's relationship to paying ond yn y gweithio? Felly, yn y nuchel, yw'r cysylltu'r ddechrau'n dechrau? Felly mae'n glennyddio'r gweithio'r llwyddechrau? Mae'n gweithio i'r gwaith? Mae'n gweithio'n gweithio gwybod i'n digwydd ar y newid o'r microfon, ac mae'n ddydig i gael i chi i gael i chi i gael i chi. Mae'n gweithio'r gwaith o ran iawn i'r ddylch yn ffasiliadau. I mean, I think the vote has inflicted extraordinary damage on the UK, on Europe, even on the wider world. And the EU, as you know, is facing very big other challenges, not only managing Brexit, and they're challenges that the UK has mostly also anyway been stepping back from the refugee crisis, the youth unemployment crisis and so forth. So I actually think that's very important to keep that in mind in the midst of this huge crisis for the UK in terms of our own responses that we keep a broad view in that response. I think it's absolutely right to do what the Scottish Government is already doing and explore all the options. No Member State has ever left the EU, with the exception of Greenland and Algeria are the two examples we can give. In terms of preserving the relationship with the EU, the simplest and most obvious way would be to be an independent state and transition in and stay in the EU. That's absolutely the most straightforward. The political question is, is it feasible to the Scottish public wanted? But I think that's the most straightforward. All the other possible permutations and relationships, the reverse Greenland or other ways of keeping access to the single market are obviously going to depend to some extent on what the rest of the UK does. So if the UK decides, which I think would be in many ways quite extraordinary again in the circumstances to join the European economic area and so retain full access to the single market but therefore have to have the full freedoms including free movement of labour but having given up like Norway all say and vote over those regulations, that would be an option and with that option in place, if that was the option, would Scotland need to be exploring any of these other ways of doing things short of the independence option at that point, no, whereas if the UK decided to go for a Canada or Ukrainian type free trade deal or association agreement that had much less of the single market and much less free movement then I think the options for Scotland in terms of exploring whether it can have a differentiated relationship with the EU whether it could keep free movement when England and Wales didn't keep free movement, whether it could mimic or mirror or take on European legislation is a complex and quite technical as well as highly political discussion and I think that's very worth looking into but I think it's very hard for me at this moment, I'll be very interested to hear what my other experts and colleagues on the panel have to say about this for me at the moment it's very hard to imagine how Scotland could be in the UK and still in the EU rather than just still in the EEA or still in the single market you know, you're meant to be a state to have a seat in the council of ministers, not a sub-state and I don't see at the moment any way around that so obviously there's a lot more to be said but I think I'll stop there Professor Douglas. Yes well I agree with most of what Dr Hughes has just said and I think given the current apparent lack of strategy in Westminster and Whitehall there will be a couple of months of uncertainty at the very least but I think what I'd like to do is to address my comments to the two possibilities of either Scotland remaining within the EU as part of the UK or alternatively an independent Scotland in the EU now I think, I agree with Dr Hughes, it's difficult to envisage how part of a state could be in the EU, just part of a state but I think one should distinguish legal and political issues here and legally speaking there's nothing very clear in the EU treaties we know that there are precedents for part of a state leaving the Greenland scenario and as a result and I would also add to that actually the situation of the reunification of Germany too because these examples illustrate that states can determine which parts of their territory should be members of an international organisation or a treaty and I think that's important so legally there are precedents I think politically it's another question because it would be a matter not only of negotiating with the other EU states but also with the UK for a certain amount as well so I would distinguish those two things that legally the EU treaty is not completely clear on this and even in the more general arena of international law there are precedents for sub-state units forming treaties treaty conclusion is not just the preserve of the sovereign state in federal countries such as Germany the German lender have been able to adopt certain treaties there are other precedents for example of parts of the Soviet Union, former Soviet Union when they were still within the Soviet Union becoming members of the UN, Ukraine for example so there are these interesting possibilities so it's one thing to cite these as precedents it's another then to say yes it's possible to do a deal on the basis of that because there would have to be agreement from other EU states and I think it's questionable right now whether that could be part of an article 50 agreement in which case we'd be talking about a majority vote from other states which would be favourable to this sort of flexible option that Scotland was looking for whether we would be talking about an amendment to the treaties which would require unanimity and then just moving on to the issue of an independent Scotland I mean obviously there are issues that this would be a choice of the people of Scotland but when it comes to EU membership I think again there are legal precedents for saying yes it's possible and these were canvassed at the time of the 2014 independence referendum and I think a good legal case was made for Scotland's membership but again there are political difficulties there are some states in the EU that are not so happy with that Rahoy has been making comments already the past day or so so I think I would separate out the two and say yes the legal precedents are there to be worked on and then there is issue of diplomatic, political relations, discussions that have to be had and I wouldn't comment on that I'd leave others better verse than me to comment on that Sir David I largely agree with what has been said I think stage one is one has to remember that one is engaged in international negotiations and intranational negotiations and it is a basic principle of any negotiations to create goodwill I think that steps have been taken to create goodwill with the other member states and the institutions of the union by the Scottish government and particularly by the First Minister yesterday I think you have to have in mind that it's also necessary in negotiations with the United Kingdom Government to maintain a position of goodwill which might be difficult depending on how it emerges but that's stage one stage two I think is to bear in mind that the people talk about options but none of the so-called options are options that we can adopt either Scotland or the United Kingdom can adopt unilaterally every single one of them requires the consent of others even the so-called WTO option which I can go into if necessary the third point I think that one has to remember is there's a lot of talk about oh well we don't trigger article 50 and there is some form of negotiation in the margins remember that article 50 not only sets down the procedure to be followed broadly as between the United Kingdom and the EU it also includes a reference to article 218 which sets out very specifically the procedure that has to be followed by the EU side in the negotiations and as I see it the purpose of the provisions of incorporating the provisions of 218 is to ensure vis-à-vis all the member states and all the institutions that their particular prerogatives are respected in the process of negotiation I think putting it very bluntly it is to protect for example the smaller member states against a stitched-up deal between the member state that has intimated an intention to withdraw and the bigger member states on the other side so we should not forget that when the council has said we require service of a notice of under article 50 that is because they have to observe a certain procedure on their side and we should respect that but I think beyond that everything is to play for I'm afraid both up and down I can add very little to these comments I agree with virtually everything that has been said the two stages of this of course are political agreement that has to proceed negotiations what is the negotiation going to be about what is the mandate handed to the negotiators both in the EU and likely the commission but there's already a struggle within the EU as to who the lead negotiations will be and of course within the UK how do the negotiations match up there so I think there's a political set of agreements which usually proceed any decision of this type although this is unprecedented of course but you know when it comes to enlargement so if one wants to reverse the enlargement argument then it seems to me that taking the politics out of it it would be important of course for the government in Scotland to examine the portfolios which most impact on Scotland so for example you know there's a number of portfolios that will have little impact on Scotland on audio, visual or whatever but there's some that will have a very significant impact so it may be one way to consider how to structure thinking about this at the level of administration and negotiation rather than at the political level would be to do a kind of reverse enlargement I mean I agree very much with what Sir David said about relationships in Europe how crucial they are to the way that the EU unfolds and I think the Scottish government has made fantastic strides in building those relationships at a time when frankly it doesn't seem that the UK government has a very clear idea of what kind of relationship it wants and the final point it would make is really to say that the EU doesn't really know what it wants I mean I think what we're seeing just now I mean I don't want to go into the politics of this particularly but I think we're seeing a kind of struggle both between the member states as to what the negotiation mandate should be and between the institutions I mean Alan Smith's intervention a couple of days ago provoked an extraordinary reaction which I don't think I've ever witnessed in the European Parliament before and that raised the question in my mind is this a Europe of citizens or is it a Europe of member states and I think at this very moment we are in the centre of that discussion it's been one it's been ongoing or implicit since the Greek crisis and all the rest of it but I think there's a very fundamental question that the EU has to ask itself particularly vis-à-vis Scotland and the rest of the UK is what kind of union is this that we're negotiating with so I think there's big big questions here as well as you know very granular questions but I think these granular questions will be shaped by the political environment and these are big questions for the EU as well as for the UK and Scotland Thank you very much that was very interesting I'll pass over to Lewis Macdorald Thank you very much can I explore a little bit the very first stage in the process and we've heard already some evidence from the Secretary and also seen some other suggestions in things that people have written including some of today's witnesses I mean I guess there's two things that I'm interested in at the first instance first of all it's become clear and Fiona Hyslop I think clarified this from a government perspective that the UK government went into this process without actually having a plan of any kind for what would happen if a vote to leave that's very serious because it means we're now in a position where so much is at stake and there's very little in place for the UK government far less anybody else to judge what to do next and secondly there's a question I would like to ask around the triggering of article 50 and what that requires because the referendum in law would appear to be simply an advisory process the decision which would trigger article 50 is a decision that has to be taken again by the UK government again it's not clear whether they have a thought strategically about what that process might be and when they might trigger that so I'd be interested in your views on all of that and a specific point in relation to the triggering of article 50 given that the 1972 European Communities Act makes it a matter of law that we are a member of the European Communities the European Union as it now is does that mean that an act of parliament is required to be passed at Westminster before article 50 can be triggered? May I could start what article 50 says in paragraph 1 is that any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements we don't have any so the question is how is a decision to be taken and there are three views about that one is that the decision has been taken by the referendum although the referendum act does not provide that that is to constitute a decision the second position is that because this is in relation to treaties and international relations this is a matter for the royal prerogative which can be exercised without the consent of parliament and the third position and illustrated to some extent by the question is that precisely because the treaties go into personal relationships personal and commercial relationships and rights are thereby created and obligations both for UK nationals and for the nationals of other member states and that is a matter of statute that is the will of parliament which stands for the time being it could only be parliament that authorises the United Kingdom to take the position of commencing a process which is intended to create a situation in which in accordance with article 50 the treaties shall cease to apply so if you ask me which is the more consistent with our constitutional requirements I would say if parliamentary and if we continue to believe that we are a parliamentary democracy then the third course is necessary Yes, I agree those are the three possible interpretations and the UK constitution is not very explicit at all on any of these and it is not helped by the fact that we have no precedence under article 50 so the EU itself has not been giving out clear messages regarding seeing the referendum itself as a possible trigger the result I think we are all clear that this referendum is an advisory one and if parliament chose not to act on it it would not have to so we can distinguish it from other referenda such as the AV referendum a few years back which contain provisions as to the follow up for the vote but even in that case if parliament chose it could have reversed that to act of parliament but I think what this raises is a conflict between popular sovereignty as expressed in a referendum and parliamentary sovereignty as expressed in what are the rights of our MPs at this stage I think what is interesting though is the conflict between these two second views which I think is very much playing itself out in London right now and quite a few prominent constitutional lawyers have been opting for the second of these two views that a vote in parliament must be necessary in order to for the government then to be able to go and trigger article 50 that it's not sufficient for the prerogative itself just to be exercised Parliament has to have it say I suspect this is not going to win the day though because when it comes down to it in the end the withdrawal from the union has to be agreed by Parliament when it repeals the European Communities Act if that's what it does so I suspect that there will be enough people who will say Parliament has it's say then because there will be some sort of withdrawal agreement and Parliament will have to ratify that adopting a European Communities withdrawal act I mean the problem I have with the third option is quite attractive is that it does constrain the use of the prerogative to go and have any sort of negotiations on the foreign stage I think that in the case of Britain joining the EEC as it then was was it necessary to have an act of Parliament before the then Prime Minister could go and negotiate I don't think so so I suspect this third option won't win the day but the constitution isn't clear the referendum was fought partly on the basis of taking back control and Parliamentary sovereignty and if there is a strong belief in Parliamentary sovereignty then Parliament should be able to have a say I think at the very very least there will be some sort of resolution or vote in Parliament even if it's not necessary for there to be legislation authorising the Prime Minister to go and trigger Article 50 but I suspect there will be a majority of people who in the end will hold sway and that third option will not win the day Before other witnesses come in can I just come back for a couple of questions on that because first of all my understanding was that the 1972 act did precede the substantive negotiations before entry correct me if I'm wrong on that but secondly if you are correct or if the Government chooses to act on the basis that you are right and that it doesn't require Parliament to endorse a decision to withdraw that presumably will still be open to legal challenge oh yes absolutely but I think in the case of the 1972 I mean I'm talking about actually triggering negotiations and I think the same argument could be made there you said that well the Prime Minister of the day in deciding to negotiate with the EEC over Britain becoming a member that would have had a material effect on the statutory position in the UK at that time that would have been an act of the prerogative of course there had to be a European Communities Act adopted to give effect to Britain's membership but I'm talking about this much earlier stage of can you just open negotiations so I'm slightly troubled about this interpretation that would seem to restrict the ability of the Government to negotiate at all in foreign policy matters wherever there is some sort of conflict between the prerogative to negotiate foreign matters and some sort of act of Parliament where are we going to draw the line we may hamstring the Government in that case with that act of Parliament not simply enable the Government to go and negotiate well what we're saying is they can't do it until they get an act of Parliament but we don't say that in other matters without an act of Parliament with respect I don't think that's the point because we're talking about article 50 an article 50 has a procedure which will end in the annulment of an act of Parliament and the question is do you need Parliament's authority to decide to set that in motion now you can have all the negotiations that may be possible although the indications are that the other Member States are not in a mood to engage in negotiations without an article 50 notice but that's all possible and of course it was possible before we went in but at the stage when we had decided to go in you had to have an act of Parliament to give effect prospectively to the treaties as they would apply on the date of entry so I think my view is that it's very important to distinguish the right to negotiate and the right to trigger article 50 which is a totally unprecedented situation if you don't mind go back to something Professor Shona Douglas Scott said about at the end of this process there are being required to be an act of Parliament to agree whatever had been agreed following the article 50 negotiations if at that stage there was a came back to Parliament Parliament didn't agree to that yet would exhausted the two years what would happen? Well that's a very interesting question there would have to be some sort of act of Parliament put into effect a withdrawal agreement but there would also have to be a repeal of the European Communities Act and so we're talking about two different things and Parliament might refuse to do both of them if it refuses to adopt an act of Parliament to put a withdrawal treaty agreement into effect then we don't have that agreement having effect domestically at the very least it may be able to take effect internationally but I doubt it but in terms of repealing the European Communities Act if there were no authority for that from Parliament we would be left in the situation where domestically EU law could still continue to apply in the UK but it would be a very very confusing situation because there would be references to the various European institutions which would no longer have sway over the UK anymore I mean certain bits of EU law on agriculture or competition would require the European institutions to be involved and if we had withdrawn that wouldn't be the case so the law would be a bit confusing. So effectively although we might internally in the UK decide that we want to continue with all that process the European Union would still see us as out at that stage I could do, I'd be interested to hear what Sir David would say on that point. I think it's clear what article 50 paragraphs 3 says the treaty shall cease to apply to the state in question from the date of entry into force of the withdrawal agreement or failing that two years after the start. So it would be possible to negotiate the withdrawal agreement but delay its entry into force so that it could be the situation could arise where you've negotiated the withdrawal agreement you go back to Parliament and Parliament says no we don't accept that and therefore it doesn't enter into force that's one possibility but you have to remember that I'm not sure that a member state having gone through this can unilaterally withdraw at the point when the withdrawal agreement has been concluded even if it's not entered into force Sorry could I just add something on the political side of this because you started Mr McDonald talking about the lack of a contingency plan which is certainly absolutely extraordinary in many ways it was the most extraordinary part of the whole campaign that people were voting against something but not for something and of course as you know some people are already talking about should there at some point be a second referendum and I think it's it's a very confused discussion so far and I think it's very confused because people are talking about two different things but kind of in the same sentence or column or whatever one is should you have a political decision a referendum on whatever this withdrawal agreement is and other people are saying or the same people are saying could we have a second referendum like Denmark and Ireland did so that although that seems a bit inconceivable politically today actually we change our minds now it seems to me there are two different things if you vote on the withdrawal agreement in a new referendum and you don't like it does that mean the alternative option is oh actually we're staying in after all we don't even have the February 2016 Cameron deal I mean I think that would be utterly confusing so I think this discussion about second referendum will continue but I think we have to be trying to put real clarity into this that there's two different potential things going on here and I certainly at the moment some people are saying therefore let's not trigger article 50 either for a long time or perhaps ever politics is changing our by air at the moment but unless we get into such an economic crisis that public opinion suddenly steadily goes 60-40 sorry this sounds a bit like England copying Scotland but unless it went in that direction I at the moment imagine article 50 will be triggered that will be triggered by Christmas and so that we won't just have a second referendum and just one other relevant point if I may it's quite possible that there will be two sets of negotiations so one a very basic withdrawal agreement that can be negotiated within two years so that as I think you were discussing with the cabinet secretary so that the UK isn't sitting in the council of ministers when it said it's going to leave and is therefore a rather welcome and potentially obstructive presence so that the UK leaves within two years and that even if then the trade or association agreement hasn't been agreed that can carry on over the five or ten years that it might need but the basic deal about ending budget contributions MEPs come to the end of their terms what you do about European civil servants has all been agreed that would certainly open up question of the transition if you're out after two years but you haven't got full trading agreement do you fall back on WTO rules do you join the EEA but temporarily so you know there are kind of options within scenarios within options here as well I'm going to have to move on to Richard Lockhead who wants to ask the question thank you thank you for giving evidence in your very invaluable contribution so far, it's fascinating I'm just trying to paint a picture in my head of some of the potential options which you did refer to initially of Scotland being in Europe but the rest of the UK not being in Europe and self-evidently you can't be a state in a sub-state at the same time so I'm trying to maybe explore further what that might look like because I think Dr Hughes made the point that if you went into the economic area clearly you'd have to sign up to four freedoms and you'd have access to a single market but clearly you wouldn't be represented in the EU institutions is that correct and how could that work within the UK practically in terms of the rest of the UK not having the four freedoms and maybe having a separate agreement over market or whatever but I'm just trying to paint a picture of what might be possible are you envisaging what's the constitutional setup in the UK that's under your question well that's part of the answer is that possible all right sorry I mean I think that the difficulty of any arrangement that would involve the UK in its present structure with Scotland having an exceptional position or as you say very difficult to conjure up because any one of them not only would have a constitutional dimension how would Scotland be represented I mean I think that the issue about the Greenland option there is probably the one that's that's somewhere but the difficulty then would be some kind of rules of origin agreement between our UK and Scotland because of course Scotland if it had a more privileged access to EU markets while the rest of the UK didn't but we're still part of the UK then you would have to set up a whole bunch of arrangements to ensure that English goods if I can put it geographically in that sense didn't enter the EU via a free trade corridor that Scotland enjoyed with EU so I think you would get into the after-type problem where rules of origin would become quite important and that's just one example of a thing where it would be quite difficult on a practical level to manage and it would be more complex than alternative scenarios for an internal UK constitution if that makes sense to you why would you do that what's the utility then of the constitutional options so I think it would be a very complex situation but I'm not saying it's inconceivable but I think it's largely difficult to imagine can I just make one very brief comment about the plan B that Ms McDonald raised one of the ironies and I think one of the things we should be pleased about Scotland's actually much because of our discussion over the independence referendum I think we're much further down the road in thinking about a lot of these things because they were on the table when we were discussing that for good or bad but I think we actually perhaps are further down the road as to what the options are then maybe the UK government is just now because we have thought long and hard about Scotland's EU future in a different setting I'll just add briefly I agree with what Drew says I think it would be how complex it is depends what the rest of the UK is doing if what we're talking about is a scenario where Scotland stays in the European Economic Association or in the single market with all four freedoms and Drew's given the rules of origin is a very good example of the technical complexity of it if you think about free movement that gives you an example of the political complexity of it because actually at one level it shouldn't be problematic why should it be problematic if all the EU 27 have the right to live and work in Scotland but they don't have the right to live and work in England I don't envisage gloomy though things are at the moment envisage that England or the rest of the UK would say the EU 27 have to have visas and that we have to have visas to go to the rest of Europe so you know, Poles and French and Germans would still have the right to travel to England and they'd have the right to travel in Scotland but they wouldn't have any illegal rights perhaps to reside and work so that's a very political question for England is well are we fine with the fact that lots of people might still come to Scotland to live and work here and they can visit us but do we need to have passport controls on the border to check who's coming in even though they don't need visas or not now with the sort of hypersensitivity and xenophobia around the immigration debate at the moment they might but I'm not sure that that I mean that's not a legal correct me but I don't think it's a legal or a technical necessity but obviously it's a highly sensitive political question and then if you go to the what Professor Douglas Scott was talking about right at the start is there any possibility of a sub-state sitting in the council of ministers but again you know think of another example what about Russia sanctions because if it was possible to sit in the council of ministers then you'd be doing not just a single market you'd be doing foreign policy so is Scotland going to take position on EU sanctions on Russia not England and Wales who are outside but who's still you know you're going to have two sovereign states within one I think all these things are worth exploring but they get very complex quite fast well on the same point and on the same question I think it depends on the solutions the permutations both within the UK and EU relationships taking free movement for example if England and Wales were to adopt some sort of Norway plus EU arrangement there would be free movement of persons and if Scotland and the rest of the UK had some other sort of differentiated relationship with the EU that would be more workable in terms of constitutionally within the UK Greenland is a federacy which means that it has a considerable amount of self-rule more than Scotland does now a great deal of shared rule and with arrangements like that it is more possible I think to envisage the sort of future relationship Scotland might have in terms of having a seat on the council of ministers and other institutions we should remember that there have been parts of the EU in the past that have been members but not full members to the extent of having been represented at every single institution that might not be desirable but all I'm saying at this point is that it wouldn't foreclose any possible agreement so there are many many permutations here What are the examples of that last point? Well West Berlin is an example for example not part of West Germany but very much part of the EEC but that was because of the EEC Treaty had a special protocol as to the position of Germany I personally think that this is starting at the wrong end it doesn't seem to me possible to envisage a position of Scotland separate remaining part of the UK but having a separate relationship in relation to the single market customs all sorts of complications arise I would say I would recommend to start at the other end Scotland has certain devolved competencies and one should start looking at what one can do within those competencies for example the Erasmus programme which other countries not members of the EU are part of for example Horizon 2020 for example a number of other agreements within the devolved which are within the devolved competence of the Scottish Parliament and Government which could be negotiated and I think for Horizon 2020 and Erasmus and academic cooperation are of enormous importance to Scotland given the importance to the Scottish economy of the universities and of scientific scientific development also one could envisage Scotland has certain competencies in relation to fishing there are a number of areas and I would start it seems to me that one should start building from there rather than starting the other way down an imagining a kind of free-floating Scotland because I think we cannot ignore geography it's fine talking about Greenland but Scotland isn't even remotely Greenland it's connected by its naval to England and you have to start from that rather simple fact Tavish Scott did you want Tavish Scott? I strongly agree with that last point and not just the geography of Greenland but anyway what I actually wanted to ask the panel is your presumption here that the EU Member States will all agree the negotiating position because it's certainly not mine for the very reason that Professor Andrew Scott gave it the outset I don't even know what the EU is anymore and I think in two years time it will be even less certain so what happens if the EU Member States can't agree the negotiating position with the UK? What they have to do under article 218 there's various steps that have to be taken and the council has to give the negotiating mandate so that there are various stages and that's why I stress that it's not our option to say how these negotiations are going to take place and it's precisely for the reason you mentioned that it will be important that all the Member States and all the EU institutions are involved I would just to go back to the point about enlargement treaties how they are constructed in two parts, one is the political principles are agreed whatever they may be so derogations from particular obligations perhaps free movement of labour as was the case in the 2004 and 2006 so these political principles are agreed and then as Sir David said well is it the commission or the council this is the struggle we're seeing a little bit of in Brussels just now and then it's for negotiations to be engaged with the EU and the other party and the same with international trade negotiations and then of course it goes back to the European council for consideration at which point they've got to agree to this and then the necessary ratifications flow from that so I think you're right the EU has not got a negotiating position but I do think it's right to remind ourselves we're only five days into this particular situation so I would imagine that the EU will not want to enter negotiations in a weak position I think quite strenuously because if we look at the relationships that we have between the EU and its closest neighbours and particularly Switzerland in the wake of the 2014 referendum in Switzerland that proposed a quantitative limit on inward movement of persons on immigration that drew an immediate response from the EU that triggered agility where six other bilaterals were taken off the table including horizon 2020 interestingly so I do not expect the EU to be confused about its principles I think they have already stated quite categorically that a special cherry picking deal is not on offer I think that's come from the commission so I do not expect to be any dubiety about cherry picking and I think it would be for the EU to send out an extraordinarily strange message not only to its own members where we see internal disputes but also to other partners who have been treated quite differently and I think that might trigger a very complex situation for the EU to deal with on its periphery driven by some kind of special deal with the UK so I think there's very very big things at stake for the EU and that's why I think they will firm up their political principles but as I say we're five days into something and we know that we've got series elections coming in some member states we've had series elections which are still not resolved in some member states so the domestic politics of this is important but this isn't the domestic politics of the 60s this isn't general de Gaulle saying no this is far too complex and that would propel the EU into its own crisis and heaven alone knows it doesn't need any more political crisis Could I just add that article 50 only requires a majority it doesn't require unanimity that is the advantage of article 50 so if the agreement is not reached under article 50 you're then thrown back to trying to get everybody in the EU to agree so I think with the majority in article 50 of 27 other states Yes but I'm not asking about that at the end I'm asking about the negotiating position that EU takes at the beginning and I'm not clear that to go to Professor Scott's point I'm not clear with French and general elections next year and the row over immigration in Europe never mind the row in Britain, the row in Europe and the fact that French finance minister last night and Newsnight absolutely took the opposite line to his president in Brussels earlier in the day your idea that all this will get sorted out and they'll be clear about the principles I think is well if I may be so bored, it's questionable Could I just come in there I actually read the Newsnight French minister last night in the completely opposite way entirely and I agree with Drot Wachtru that says that we know that the European council statement yesterday added in the sentence that said there is no access to the single market without all four freedoms We would all say that just now wouldn't they yes but it's political judgment isn't it but all that I think the French minister was saying was in very French style making a threat he was saying in a sense he was talking about the reverse enlargement that Drew is talking about everything is on the table brackets not said the status of the city of London and financial services and if you don't have full services access which is going to be one of the biggest issues and problems then there may be some other deal so I don't think anybody is saying that if it's not a full single market access free movement would be on the table fine and Canada doesn't have free movement so yes it's very difficult moment yes there are general elections coming up but frankly this is a meat and drink of the EU is sorting out these extraordinary difficult positions and whether that's bringing in one of the most amazing things the EU did wrong actually in my view brought in the divided island of Cyprus rather than using its leverage to ensure that all sorts of amazing things amazing not necessarily as positive happen in finally getting and your right is going to be extremely difficult possibly quite bloody but I wouldn't be quite as pessimistic as you are President Douglas Scott you talked about article 50 in terms of that main agreement requiring majority agreement but if within that main agreement under article 50 at the end of the process the EEA process is also part of that agreement there's that not also then require every single country to then agree that process and if that's the case if we're going to have a Norway that will require not just the main agreement but every single country involved in the EU to also sign up to that process well I think there will be two agreements there will be the article 50 withdrawal agreement settling the end of the UK's membership of the EU but there will then have to be a separate agreement to fix the future membership which would require unanimity so there'll actually have to be two agreements and I'm really not clear and I haven't seen anybody who's very clear about exactly what would be the subject matter of article 50 to what extent it would encompass future trade relations for example I think there's a problem here because the texts of the article 50 are not entirely clear because the agreement is one which would set out the arrangements for withdrawal taking account of the framework for its future relationship with the union taking account of people seem to some people say well that just means it will be taken into account if you look at the German text it seems to say that the withdrawal agreement will have taken account of the future relationship in other words you have to negotiate the future relationship all and before withdrawal now there's a problem about Norway and I said that none of these this talk about options is misleading because the Norway option assumes that you first join after and in order to join after you have to have the agreement of the other after states which are Norway, Iceland, Liechtenstein and Switzerland and then you have to have an agreement you have to by that means then you have to agree to join the EEA which Switzerland although a member of after is not a member of and so you've got you've got permutations not only of 27 other EU member states but four other after states I mean this is like playing chess with 30 other people at the same time 31 other people at the same time it's not easy and the texts go a certain distance but one shouldn't be glib about the process to return to Scotland's position in this complicated process if we fail to negotiate a position of differentiation for Scotland and you've all highlighted the difficulties in that position and the Scottish Government has to go down what it's described as the contingency measure of an independence referendum what are the implications of the guillotine process the two-year guillotine process of article 50 on a decision like that Dr Hughes obviously we know that it might get extended the article 50 but that's absolutely not guaranteed I think the timing is very tricky there is certainly as we've seen in this rather short week not a lot of goodwill to Scotland across the EU and despite the Spanish Prime Minister's comments I don't think they were surprising in any way I think the Baroso comments two years ago were scaremongering in the sense that if Scotland had voted for independence then there is no way it would have gone to the back of the queue and then eight years to negotiate I mean apart from the fact that the Eftons only took 18 months because they were so close to EU legislation look at this discussion and all the other discussions about how extremely difficult this is going to be for the UK to withdraw so why on earth would you go through Scotland withdrawing only to then go through a full accession process to come back in so I think what would have happened two years ago with an independence vote is that I had to be in negotiations with Scotland over its membership I don't think it would have got most of the UK opt-outs but probably get the Schengen opt-out and then ratification of the accession treaty and so I talked to people in Brussels off the record talking about Scotland somehow being in some sort of transitional holding pen so it wouldn't have a seat again in the council of ministers until ratification of the treaties but it wouldn't have to go through an absurd opt-out and then in process and I go through all that for now because I think there is a timing issue here if Scotland waits until near the end of the two years to say this isn't okay and now we're having an independence referendum you may not have had that and had time to have the negotiations with the rest of the UK on dissolving the union before the whole of the UK has left so it's obviously a very big political question and judgement of whether and when to call such an independence referendum but if it was only a question of logic you would call it as soon as possible in my view you'd call it anyway let's say by next summer because then you'd actually have had the dissolution talks if it was successful with the UK before the UK left and that would make it much easier for the EU to get into some of these transitional holding pen arrangements than otherwise but that's just my view and does the panel obviously you're in Europe all the time does the panel feel that there has like as you've alluded to Dr Hughes there has been a shift in goodwill towards Scotland from what existed in 2014 the simple point is that 2014 proceeded on the assumption that the United Kingdom or our UK would remain was and would remain a full member of the EU and the question was what happens to Scotland on that assumption would the EU be prepared to accept a new member state simply because this was a separating part of an existing member state that is not the position now the position now is that our UK is not a member of the union and the question is whether and if so how Scotland can remain a part of the union as on the assumption of an independence referendum saying yes that it could remain and I would also add that I wouldn't wholly discount the attractions of Scotland not seeking to be a member of the EU but possibly being a member of EFTA and the EEA because that offers certain advantages full access to the single market but not all the commitments that would be gone through and it doesn't seem to me that Scotland makes quite a good fit with Iceland and Norway I think that if we're talking about options that's another option that ought to be explored without taking to provoke apoplexy with my legal colleagues why couldn't Scotland be the successor state for the purposes of the European Union why not that means that the our UK would leave but Scotland would remain its seat and inherit the successor state status of the UK that is not in my view impossible assuming the necessary constitutional agreement had been sought in Scotland and the Scottish people felt independence was its best option become the successor state I would quote what was said to me by a very senior retired Dutch diplomat when I asked him about the Euro crisis he said we will find a way we always do there is not one should remember that the lawyers can dance like angels on the point of a pin but at the end of the day it's politics that will count and that's why I started by saying goodwill is absolutely essential can I just add on that I mean I think it's going to be very interesting this debate that will come about successor state but I don't think of goodwill at the moment I think Nicola Sturgeon has played it very adeptly I think the SNP from people I talked to even last autumn were contingency planning in a way even the leave side let alone the UK government were not but the EU does not want a mini UK back in the EU if the rest of the UK is leaving in other words it does not want a member a smaller form so if the idea of a successor state is that you don't want the opt outs on the euro the budget rebate the opt in deal on justice and home affairs I don't think that will be forthcoming and I think at that point people will start saying yes the EA option Scotland seems to suit you quite well so I think that's a wider debate that's going to have to come into the Scottish debate at some point well yes I mean I agree with what's been said I think but I would just add one point about procedure if article 50 is going to be the governing article for this I come back to the point about majority that if somehow Scotland whether as successor state or some other arrangement can be arranged under the umbrella of article 50 you're looking for a majority rather than unanimity whereas if you are looking to recognition as a new independent state there may be pressure to go to article 49 the accession procedure and unanimity so I think process is important although I wouldn't pass judgment on which it would be likely to be Thank you, thank you I just understand Rachel wanted and I think there would be a situation where Scotland would be left out in the cold if negotiations fail in any form between their possible possibly not negotiating with the rest of the UK with Europe and then trying to become part of Europe do you think that they would ever be shut out? In a sense had that conversation that it's difficult if the UK was to become a fully federal state I think the point was made about the Belgian competencies are different and Belgian some of the external trade competencies so I think if the UK was to totally invent itself as a quite different state for example the Canadian provinces have control over immigration and so on so one could imagine if the British constitution is thrown up into air but I'm not sure we're anywhere close to that position so I think Scotland being frozen out of Europe is not cannot be discounted if Scotland its position constitutionally is unaltered or if the UK's position constitutionally remains the same Richard, did you want to come in there? Just to follow Rachel Hamilton's point in terms of the big picture in terms of Europe's future and what Europe's all about and Dr Hughes' comments about the awkward squad are looking for opt-outs whatever which is obviously far down the line but he did raise it we did not send a really bad message in terms of Europe's future if they were to say no to countries that wanted to join a really bad message I wasn't suggesting they would say no but I was saying at some point and who knows all these options and scenarios but if at some point Scotland is talking directly to Brussels about being a full member state and whether that's done with leaving or somehow staying in there's going to have to be a discussion I mean the number of votes are set out by population and so that's simple but there will be a discussion presumably minimally about Schengen because obviously Ireland got the Schengen opt-out because of the common travel area with the UK all I was trying to say about awkward squad is if at that point Scotland wants the budget rebate the Euro opt-out and the opt-out opt-in of justice and home affairs it's certainly going to make it's not going to get that I don't think and it's going to make some member states think twice so I wasn't going as far as saying and therefore they'd say no and I mean one point just sort of it's a bit tangential but I think Spain is obviously going to be very difficult it's not the only one that may be difficult but it is going to be difficult but it's not actually going to be facing you know Spain is not about to leave the EU it's not about to face Catalan's demanding either to stay in while it leaves or to look through these options you know so that doesn't help it that much at home but I think in the end as and when and if we get to that stage it does help it and also smaller size helps it out you know when Turkey was progressing forward in democratic terms 12 years ago you know obviously there was still a lot of reluctance despite the agreement to start talks because it was so big smaller member states and more developed member states which Scotland is all these things play into the politics and the EU even in happier times let alone in these crisis ridden times loves to be a poll of attraction so I think a lot of it plays in Scotland's favour but there's also hardnosed politics whether it's how they're going to negotiate with the UK as a whole or how they would eventually negotiate with Scotland I'm afraid we're going to have to wind it up there thank you very much to all our witnesses it's been a fascinating discussion and imagine we may be seeing you again at some point, thank you very much we're going to suspend very briefly and then move into private session