Much Ado About Europe: Scenarios for an Independent Scotland

Dr. Daniel Kenealy, Academy of Government

Dr. Daniel Kenealy, Academy of Government

Dr. Daniel Kenealy weighs in on the debate about Scotland’s status within the European Union should Scotland vote for independence.

‘This government’, stated Scotland’s Deputy First Minister Nicola Sturgeon on 13 December 2012, ‘believes that Scotland benefits, economically and socially, from EU membership and that the EU benefits – enormously – from having Scotland as a member’. She went on: ‘We are an integral member of the EU and it is simply not credible to argue that the other nations of the EU would not want to retain access to the vast array of resources and opportunities that Scotland brings to the EU table’.

The Deputy First Minister spoke these words in an emergency statement to the Scottish Parliament on the issue of how independence for Scotland would affect that nation’s relationship with the EU. The statement was a rapid reaction response to a letter from European Commission president José Manuel Barroso to the House of Lords Economic Affairs Select Committee. In that letter Barroso asserted that ‘if part of the territory of a Member State would cease to be part of that state because it were to become a new independent state, the [EU] Treaties would no longer apply to that territory. In other words, a new independent state would, by the fact of its independence, become a third country with respect to the EU’.

The issue of an independent Scotland’s status within the EU has rumbled on for some months now with pro- and anti-independence campaigners using it as grist to their respective mills. For the unionists the issue creates uncertainty, which feeds into their broader campaign narrative. For the SNP the idea that Scotland would continue, automatically and seamlessly, within the EU has been central to their public narrative since 1988. The present state of the debate on this topic leaves much to be desired from a public policy perspective.

There is no definitive legal answer to the issue. There is nothing within the EU treaties that explicitly addresses the issue of part of an existing Member State becoming a new state. There is no historical precedent. And there is no case law. What there is, if we look at the history of the EU, is a track record of pragmatically addressing a series of territorial quirks – none of which serve as a direct parallel for Scotland – in a way that avoided unnecessary drama, political tension, and upheaval. Make no mistake, should Scotland find itself outside of the EU for even a brief period it would create drama, tension, and upheaval for countless students, investors, corporations, and fishermen who possess various rights vis-a-vis the territory of Scotland.

The arguments that have been advanced, in public, to date are both overly simplistic. They essentially boil down to a state-centric perspective of the EU versus a citizen-centric perspective. The former view sees the EU as a club of states and argues that because Scotland would be a new state it would be no different to Iceland or Croatia at present. This is the argument articulated in Barroso’s letter and it seems to be the argument offered to the UK government by its own lawyers. It is an argument plucked straight from public international law and the rules of state continuity and secession. But the EU is a distinct legal order, a quasi-constitutional order and it is far from clear that public international law is the appropriate venue in which to shop for answers.

The latter view contends that there is no mechanism through which to deprive those in Scotland of their current rights as EU citizens and thus the presumption must be continuity of membership. This is the argument of, amongst others, Aidan O’Neill QC and it has been echoed by various Scottish government ministers. However, whether EU citizenship is a sufficient base on which to claim on-going membership of the club is contestable. EU citizenship supplements national citizenship of a EU member state and, although the European Court of Justice has sought to extend the reach and content of EU citizenship through the years, it remains secondary and supplementary.

Towards the end of 2012 the Scottish government seemed to move away from this citizen-centric argument and instead offered what they called a ‘common sense‘ perspective on the matter. Such a perspective accepted that there would be a need to negotiate the precise terms of Scotland’s membership of the EU but that these negotiations would take place during the period between a vote for independence (in the fall of 2014) and the date of independence (potentially as early as May 2016). Negotiations would, of course, be complex and numerous issues would be on the table. Such issues would include the various opt-outs currently possessed by the UK and whether an independent Scotland would inherit them, and the UK’s budget rebate and whether Scotland would receive a similar abatement. It would be very difficult for Scotland to retain all of these perks and opt-outs but they are a very separate issue from membership of the EU itself.

While there may be nothing definitive in the EU treaties to solve this puzzle, there is a spirit of good faith and cooperation that underpins the treaties. Such a spirit creates a reasonable expectation that, following any vote in favour of independence, the European Commission (and the other Member States) would enter into negotiations to manage Scotland’s transition to Member State status in a way that caused the least disruption to the union. What is more, the EU’s commitment to democracy and self-determination is hard to square with the notion of expelling part of its existing territory because it exercised a democratic right and expressed its political will for self-determination. The general spirit of the treaties and the fundamental values that the EU claims to stand for may be Scotland’s best friends in such a process.

Few things can be said on this issue with certainty but a combination of political motivations and legal considerations will shape the outcome. What is essential now is that serious thought be given to how the practicalities of Scottish independence might be managed within the EU framework. Questions such as whether the Commission could negotiate with a putative Scottish state before it became formally independent cannot and should not wait until the referendum. It is politically infeasible for those opposed to independence to be seen to be planning for its eventuality and so researchers and academics must step to the plate and do the diligent and quiet work required to start tackling these practical issues. Then, if independence does come, at least we’ll all be a little better prepared.

Daniel Kenealy is Lecturer in European Union Studies and Deputy Director of the Academy of Government at the University of Edinburgh.

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6 Responses to Much Ado About Europe: Scenarios for an Independent Scotland

  1. Pingback: Much Ado About Europe: Scenarios for an Independent Scotland | Referendum 2014 |

  2. Peter A Bell says:

    A succint and considered contribution from Dr. Kenealy which seems broadly supportive of the view taken by the Scottish Government on the issue of post-independence Scotland’s status vis-à-vis the European Union. I would take issue with only point, and that is the claim that the SNP changed its position in late 2012. I would suggest that this was less a change than a clarification. It was surely self-evident that some negotiation with the EU would be occasioned by Scotland leaving the EU – both in relation to the precise details of Scotland’s status and that of the remainder of the UK (rUK). Much in the same way that everybody knew that Trident would not vanish from Scottish territory overnight, but Angus Robertson nonetheless felt it advisable to spell this out in the resolution carried by the SNP Conference last year.

    On the matter of state-centric versus citizen-centric perspectives I would offer the thought that, while there is certainly a substantive difference between the two, both can be addressed with the pragmatism Dr Kenealy acknowledges as characterising the EU’s approach to such issues.

    The approach from a citizen-centric perspective has been thoroughly rehearsed by the SNP and others. Dr Kenealy suggests that this may not be sufficient on its own. Which would seem to imply that the requirements of the Barosso/UK Government state-centric approach must also be satisfied to some minimum extent.

    I would suggest that this might be achieved by the EU taking the (pragmatic) view that all the treaties which define EU membership were signed on Scotland’s behalf by the UK. This approach only requires that the EU accept the premise that the UK is a voluntary union of two nations with a single parliament and government acting on behalf of both. An appreciation of the nature of the union which the UK Government would find it very difficult to dispute.

    This approach provides the continuity that will surely be a priority for the EU. And it resolves another issue that is seldom spoken of. If, as is now generally accepted, the newly independent Scotland would continue as a member of the EU with only relatively minor details to be settled by negotiation, what would be the basis of this membership? What would be the starting point for negotiations?

    What else could it be but the status quo of existing treaties? If those treaties no longer apply then Scotland cannot be a member and must be treated as an accession state. And if they do apply, having been signed on Scotland’s behalf by the UK, then they cannot be arbitrarily and unilaterally altered prior to the very negotiations that are presumed necessary.

    Bearing in mind that it is a political issue rather than a matter of law, there seem to be two incontestable points that are relevant to this discussion. From a citizen-centric perspective there is no ready process by which Scotland can be expelled from the EU. From a state-centric perspective there is no conceivable way Scotland can continue to be a member of the EU without existing treaties remaining in place.

  3. John MacKinnon says:

    As the United Kingdom is a joint venture of Scotland and England (with Wales and N. Ireland attached as quasi-states {but not Kingdoms} to [I presume -] England and the UK respectively), if the union is dissolved both Scotland and England are elevated/reduced (take your pick) to a common state with regard to the EU, and neither (or both) are successor states. I can’t see how any other conclusion can be justified. Sorry about all the parentheses.

  4. David MacVicar says:

    A great article and highlights many factors that should be discussed in detail and in public prior to the vote. Unfortunately it is unlikely that the British media will be a vehicle for greater preparedness, so the more articles like this the better.

    However as JM states above, you cannot evaluate the Scottish and EU positions and the likely negotiations while completely ignoring that treaties of Union and ignoring therefore that the UK as a State will no longer exist either (I presume that the name may stay the same but everything else is ‘open bar’).

    Firstly, impacts to what would then be the remaining Kingdom, aka ‘rump’ UK, appears to be a taboo subject. Scotland is not leaving the UK it is ending the treaty that makes the UK exist, we would be untreating. The UK parrot would be deceased, no more, null and void, surely? As soon we say YES the UK parliament logically and essentially reverts to the English parliament, as only the Scottish Parliament would be a wholly elected body representing the Scottish public. I guess the Scottish constituency members of the UK cabinet would have to resign.

    Can the rest of the UK be considered as a full status quo, clearly it cannot? However, anyone trusting in BBC coverage for answers or even questions would currently conclude that Blighty will continue on as if nothing had happened and Scotland will have a lot of work to do getting on board the global bus. This just gives weight to the perception that UK =(is equivalent to) England = Britain, an entirely Anglocentic perception.

    Therefore, it seems practical to me that the remainder of the former UK would essentially have to continue as part of the EU but not as the UK as it currently stands. The new entity would also be required to renegotiate all existing agreements and exclusions and level of representation. I would further argue that this adds weight to Scotland to be treated in the same way as England: I have not bought into the idea that only one country in our Unitary State gets to keep all treaties signed up on its citizens behalf while the other gets none.

    I thought we were currently in the UK “together” or is that just another great deception?

  5. I agree with almost all.but being a simple man I would put it in the simplest of terms,the UK is union that signed on behalf of member countries (Scotland and England) to join a larger union called EEC grew to EU,and thus we have the same rights and privileges,of the whole,also the same responsibilities ,if anyone says that we lose all treaties then the same is said for the other member of this smaller union that is England,we either have the same or both start from scratch.I do wonder about the honesty of the media both written and broadcasted,will they be able to see past their allegiance to their respective political parties? I think not,I don’t think the BBC sees Scotland as country more of a region,and as our main “press” is owned by persons outwith Scotland they too have a separate agenda,this is what must be overcome so that the electorate can have an informed choice,for it will always be YES for independence,for I see that this UK has went well past the “sell by date”

  6. Pingback: Much Ado About Europe: Scenarios for an Independent Scotland | Mr. Henderson's Geography |

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