The United Kingdom has voted to leave the European Union – but Scotland and Northern Ireland have voted to remain. The Scottish government is considering whether to hold a second Independence Referendum, to give its electorate the opportunity to leave the United Kingdom and stay in the EU. Without arrangements of this kind, Scotland would be effectively carried out of the EU, against the will of a majority of its electorate, because the United Kingdom as a whole has chosen to leave.

If the Scottish government is able to hold and win a second Independence Referendum, could the Scotland stay in the EU – or would they have to apply to (re)join?

As a matter of European law, the answer seems clear: the government of the United Kingdom (as the relevant EU Member State) is entitled (under article 50 of the Lisbon Treaty) to give 2-years’ notice to the European Council, to terminate the (whole of the) United Kingdom’s EU membership at any time. But there’s no apparent basis, in current UK or EU law, on which the UK government could give notice on behalf of (say) England and Wales, so that Scotland and Northern Ireland could stay behind, if that was what they wanted to do.

Notwithstanding the clear terms of article 50, it is always possible that the Scots will be able to persuade the other 27 Member States of the EU to agree that an independent Scotand can stay, if and when the rest of the UK leaves – but European politics will male this difficult or impossible to achieve now or at any time in the foreseeable future.

If that’s right, it seems almost certain that Scotland will be carried out of the EU, if the UK government gives an article 50 notice on behalf of the UK, and this will lead to the termination of the whole of the UK’s EU membership in time. Scotland will therefore have to apply for an EU membership of its own, if it wants to return … unless a political solution to this and a myriad of other legal and constitutional problems can found.

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