Och aye the EU!

natalie hamill, 20 March 2012

By Lucy Hatton

Following the announcement that a referendum on Scottish independence is to take place in autumn 2014, debate has raged about what implications this will have for Scotland’s membership of the European Union. Whilst Scottish nationalists, who have called for the referendum, are incredibly optimistic about the future position of Scotland within the EU, many other politicians and academics have questioned the basis of this view. Whilst it is unlikely that the true consequences of Scotland’s independence will be made clear until after the result of the referendum, speculation is rife about what independence from the UK could mean for Scotland’s position in the EU.

In their policy paper ‘Your Scotland, Your Referendum’ of January 2012, the Scottish Government, led by the Scottish National Party’s (SNP) Alex Salmond MSP, states: “under independence, Scotland would have the rights and responsibilities of a normal, sovereign state and continue its membership in the European Union.” This is quite a brave statement given that Scotland’s post-independence status has not yet been confirmed by EU officials. At the moment the EU is keeping quiet and has said that as the matter is hypothetical it will not comment. The only precedent on its opinion comes from a response to a question from a Welsh MEP about whether a newly independent region would need to re-apply for membership, to which the Commission replied that any newly independent entity would be outside of the EU and would need to apply for membership in the same way as any other non-member. Nevertheless, Salmond is adamant that Scotland will inherit the existing EU treaty rights and obligations in the same way as the rest of the UK. This argument is based on the agreement of 1707 which brought England and Scotland together to form a single state. SNP politicians assert that independence from the UK will simply entail the dissolution of this treaty and the creation of two separate secession states, which would both be in exactly the same situation vis-à-vis the EU.

However, it is unclear as to whether it really could be this straightforward; the United Kingdom has gone through many transformations since the 1707 agreement was signed, making it potentially inapplicable now anyway. For example, when Ireland became independent in 1922 the UK retained its status internationally, and continued to be constituted of England, Scotland, Wales and Northern Ireland. Indeed it is customary in international law for existing treaty obligations and membership of international organisations to pass to the continuing state, which arguably the remainder of the UK, without Scotland, will be. For example, it has long been accepted that India is the same entity with the same obligations as British India, and that Pakistan was a totally new state without any such obligations. The breakup of the USSR and continuation of the Russian Federation is a similar example. Put simply, there is no evidence to suggest that both Scotland and the remainder of the UK will be in the same position with regard to the EU if Scotland became independent.

If this is the case, then on independence Scotland would find itself outside of the EU and all other international organisations of which the UK is a current member, whilst the UK (minus Scotland), as the continuing state, would maintain all of its connections. In this situation Scotland would have to apply, as any other European state, for membership of the EU as an outsider. This would unlikely be a straightforward process, Scotland would have to meet the Copenhagen Criteria for membership and adopt the acquis communautaire. Of course, in terms of complying with the values and traditions of the EU Scotland would not have a problem, as it is accustomed to these and its current laws are compatible with those of the EU. However, in re-applying, Scotland would not be entitled to some of the special conditions which the UK presently has with its EU membership. For example, Scotland would not be entitled to the UK’s EU budget rebate negotiated in the 1980s – without which, as has been calculated by the House of Commons Library, it would see its contribution to the EU budget rise from £16 per person to £92 per person. Nor would Scotland retain the UK’s opt out of the Charter of Fundamental Rights, the Schengen Agreement, application of Justice and Home Affairs policy and, even more significantly, the single currency. The SNP has stated that Scotland would continue to use its current currency, pound sterling, until membership of the Euro is approved by the population in a referendum, however, in an accession situation, membership of the single currency is obligatory and non-negotiable.

Article 49 of the Treaty on European Union states that a candidate state’s accession to the EU is subject to the unanimous agreement and ratification of all member states. This is a further obstacle for Scotland, as there is concern that member states with regions threatening secession would be unlikely to allow Scotland an easy ride into the EU as this would set a precedent for potential breakaway regions, such as Catalonia in Spain or Flanders in Belgium, to pursue a similar path as Scotland. If Scotland found itself in the position of applying for EU membership, it would arguably have two potential options: accept the acquis in full, avoiding aggravating existing member states, and lose the benefits it has received as part of the UK, or enter into heated negotiations to keep these benefits but risk incurring the wrath of existing members who will simply veto Scottish accession into the EU. The process of Scotland re-joining the EU as an independent state is likely therefore to be protracted. In best-case scenarios, for example Sweden, the period between applying for membership and becoming a member of the EU can be as little as four years. Alternatively, as in the case of Turkey, becoming a member can take decades.

Whilst this presently remains a hypothetical issue, it would be important to clear up the exact situation that Scotland will face on independence from the UK well in advance of the independence referendum, so that the Scottish voters are fully aware of the implications of their decision. As has been said by the Director of Business for New Europe, failing to clarify the situation prior to the referendum being held would be “dangerous and potentially misleading”, particularly considering the exceedingly confident claims of the SNP.