Poking Scotland in the eye on the EU

Back in 2012, prior to the Scottish Independence Referendum, I wrote a blog post entitled Answering how an independent Scotland would work in the EU is much more mundane than anyone seems to want to admit.

While the title of that blog post remains true, the state of play on this issue has moved on – after Scotland did not vote for independence, but the UK did vote for Brexit.

I was further reminded of these issues this week after a debate with Scottish Tory MEP Ian Duncan about the Scotland and the EU, in which he determinedly maintained Spain would spike prospects of an independent Scotland joining the EU (Twitter thread here), and a bunch of tweets that I and others sent to BBC journalist Andrew Neil who made a series of errors about how Scottish membership of the EU could work (tweets by me, Alberto Nardelli and Steve Peers).

The first aspect to bear in mind is how the politics have changed since 2014. When it comes to UK-Scotland relations, the offer of more devolved power made to Scotland in the month before the independence vote has largely not been delivered upon. The SNP has maintained its primacy in Scottish politics, with a smooth transition from Alex Salmond to Nicola Sturgeon as the leading character. Scotland voted to Remain in the EU, while the UK as a whole voted to Leave, meaning that since the EU referendum relationships have soured further – with Sturgeon expressing her discontent for how the devolved administrations are to be involved in the Brexit process, and no help whatsoever gained from the judgment in the Miller Supreme Court case. Theresa May might say the country is coming together behind her Brexit plan, but as I see it this is not happening in Scotland. The politics of Edinburgh – London relations appear more strained now than at any point since the establishment of the Scottish Parliament.

May’s government galloping towards a Hard Brexit nevertheless causes a problem for Scotland and its independence hopes. Were the UK to leave the Single Market and the Customs Union, how could Scotland respond? Were Scotland to stay in the EU somehow, or in the Single Market or Customs Union, that would necessitate some controls at the England – Scotland border – and that would come with an economic cost. That means some pro-Brexit, pro-Union folks think the case for Scottish Independence is over. But how did keeping in the UK in the EU against its will go, eh? Try keeping the UK together while consistently poking Scotland in the eye – I cannot imagine that ending well.

Conversely on the EU side, things have decisively shifted in Scotland’s favour. While in 2014 no-one really gave a damn about Scottish independence in the rest of the EU as far as I could tell, apart from some in the governments of Spain, Belgium and Romania who opposed it, the rest of the EU was neutral. Now there is still opposition – most notably from Spain – but there is quite some goodwill elsewhere. What was viewed as an issue for the UK and Scotland to solve now has an EU component, as Scotland voted Remain. The EU trying to do something for the pro-EU Scots is an easier line to sell politically now, and also makes the Scottish case decisively different from the Catalonia one. The behaviour of May and her Brexit lackeys Davis, Fox and especially Johnson have won her few friends in Brussels, while Sturgeon’s smoother approach has started to pay dividends there and in Berlin too.

Which then brings us to the technicalities of the matter – how could Scotland actually join the EU? There are essentially two ways that Scotland could do this – either by somehow taking over the UK’s membership of the EU (also known as Reverse Brexit as eloquently explained by Steve McCauley here), or through applying to join the EU as an independent state.

Neither option to allow Scotland to join the EU is technically or legally simple, but neither is the process ridiculously complicated either – and it is nowhere near as complex as Brexit is, not least because the process to join the EU is known, while the process to leave is not. Also recall that Scotland implements pretty much all of the acquis communautaire already, so were it to have to apply as an independent state it’d be the swiftest accession there has ever been. Yes, there are the issues of Schengen and borders, and the Euro, that are so far unaddressed – but how those could be worked out would depend on what variant of Brexit the UK ultimately ends up with, for whatever happens to Scotland depends on that in the short term. Also the argument that Andrew Neil advanced, that somehow Scotland would be behind the likes of Serbia and Bosnia & Herzegovina in a sort of queue to join is ridiculous – there is no queue, there are just criteria – and the country that fulfils them can join.

Scotland independence opponents also point to Jean Claude Juncker stating there will be no enlargement of the EU until 2020 (and Neil also made this point). I see that comment as irrelevant as he said it before the UK left the EU, and anyway a further Scottish independence referendum would be needed first, and then – as Scotland presumed last time when it voted – the actual independence day would follow at least two years later. With Scotland and the UK in no way able to organise a second Scottish independence referendum before 2019 anyway, all of this can only be solved by 2021 or so at the very earliest.

So my conclusion is that the politics today make it easier to foresee an independent Scotland in the EU than was the case in 2014, but the technicalities of how this could be done remain unclear, unprecedented, but not insurmountable.

(For the record: while in my 2012 blog post I stated I was mildly in opposed to Scottish independence, by the time of the independence referendum I was in favour of it – as I state here. I am not Scottish and have never lived in Scotland. Make of that what you will)

First published on the author’s site and reproduced with permission

Image by Simon Bramwell via Flickr CC BY-NC-ND 2.0 

Readers may also wish to consult this Zelo Street blog by Tim Fenton

Comments

  1. fraser cameron says

    completely agree – the political mood in the EU has changed and after Brexit the other members would welcome a pro-EU independent Scotland which has been part of the EU since 1973. Although they may not like it, neither Spain nor Belgium would feel able to block a swift Scottish re-entry into the EU.

  2. Morag says

    You think the latter half of 2018 is out of the question for the second referendum? Some knowledgeable people are mooting it.

  3. Thomas Valentine says

    Jean Claude Juncker’s comment about no new members until after 2020 was not as stated by A. Neil. His remarks were an estimation that none of the current candidate states would be ready until after 2020. Not that they were being blocked. I think it is actually quite clear.
    “On 15 July, Jean-Claude Juncker said in the European Parliament, that no new countries were EXPECTED to join the Union in the next five years.”
    Iceland has changed it’s plans but still remains a candidate though not progressing.

    As I see it, Scotland’s position is more governed by the UN Vienna Convention on Treaty Law. As you will know the Convention deals with the definition of a state capable under international law of negotiating a treaty. But by extension who is bound by treaties already in existence. This in the 1990s meant successor states to the USSR, Czechoslovakia and Yugoslavia. The normal position now is that all successors are equally covered by the state named on the treaties not just the one where the old joint capital city. Kazakhstan was still covered by the Start Treaty and Treaty on the Non-Proliferation of Nuclear Weapons. Only the former Soviet states that had declare UDI before July 1991 were exempt. Lithuania had declared in March of 1990 that it had “restored the republic of Lithuania and expelled the Soviet occupation”. Since the USA and other Western countries recognized this as valid, Lithuania was no longer obligated to adhere to any treaty signed by the USSR in which they had been previously included.

    I mention this because in order to “get out of” a treaty Lithuania had to come up with special circumstances. All the other states such as Ukraine were held to the Treaty on the Non-Proliferation of Nuclear Weapons. The Chernobyl plant still held weapons grade material. So if a successor is bound by a treaty signed by the now dissolved USSR the reciprocal is true of all other signatories. Each country recognizes each other as a treatable state per the UN Vienna Convention.

    Scotland fits this remarkably closely particularly if you take into account the nuclear aspect. Dounreay, Faslane and Torness. So clearly Scotland would be covered by relatively lesser treaties such as all those forming the EU. Scotland would be obligated to follow the EU treaties and all other signatories the same towards Scotland. Even Spain, as I think is actually their position. That Spain will recognize any legally conducted dissolution of a state into successor states. That is their case against Catalonia because there would have to be a change to the Spanish constitution to legally achieve independence. Leaving Catalonia only UDI and trying to get other countries to recognize them as a state under the Vienna Convention. Other wise they could not form trade treaties.

    I believe the UK government seeing a loss in any second independence poll, are toying with the idea of the Spanish strategy, when they say they will not give their permission. A legally recognised referendum would give Scotland international legitimacy. If done before any UK – EU BREXIT Treaty came into force, it would leave Scotland a valid successor state covered by the UK’s signatures on the EU treaties. Now dissolved the other successor state The Kingdom of England would be enacting the BREXIT Treaty with the EU solely on its own. Consequently England leave Scotland stays or more properly the UK component of the EU reduces in size and later gets a nice black and white name tag. But not a new chair they are no made of money and there’s nothing wrong with the one you already have is there?

    When you say legally difficult? I just don’t see it. It is quite straight forward. There will be behind the scenes a renegotiation to take account of the reduce size of the membership and that might take time. But it will be done “within” the EU as I see it. There will need to be a EU election since Scotland will have to fill MEP positions. UKIP in Scotland will have a hard time finding a new name.

    No one in Brussels will need a memo to explain what is going on anyway.

  4. Robert Peffers says

    There is a big flaw in all claims of Scotland being required to apply to join the EU. That flaw is that Scotland is at present still in the EU. So before applying to join we need to be forced to leave and every person registered to vote in Scottish elections, whether they be Scots born or not, are also citizens of the EU and thus are entitled to have EU protection of their EU citizenship.

    Thus the EU has a question to answer and it really is not a complex question. It simply boils down to how the terms, “United Kingdom”, and “Member State”, or alternatively, “Member Country”, are interpreted.
    The, “United Kingdom”, describes a kingdom – it does not describe a country.

    If the EU maintains that the UK is a country then they are quite obviously wrong. The United Kingdom contains four distinct countries but it only has two signatory kingdoms on its, “Birth Certificate”. (The Treaty of Union).

    If they claim the United Kingdom is the member state then they must acknowledge that the Treaty that gave it birth has only the signatures of two equally sovereign Kingdoms on the, “Birth Certificate”, of the Union.

    That means either of the two founding kingdom’s can claim to be the legacy member State and, as Scots EU citizens voted to remain while those in the Kingdom of England voted to leave, then the only way to protect all United Kingdom EU citizen’s rights is for the Scottish Kingdom to remain as the legacy member and the Kingdom of England EU citizens leave as they voted to do.

    Everyone gets what the want and the EU needs not change the EU rules that the only way out of the EU is by a formal request to do so, (Article 50).

    Nor does the EU lose all credibility throughout the World. How can a European Union retain its credibility to protect its citizens if it allows an entire country, and its EU citizens, to be dragged out of its EU citizenship against their wills?

    All it takes is for the EU Parliament to acknowledge that the United Kingdom is exactly what it describes itself as – a kingdom and not a single country.

    Which, as a country, is exactly how The Westminster parliament now runs itself as the de facto parliament of the country of England, (and there is no other parliament of that country), and the Westminster Parliament imposes EVEL to force England’s overrule of the other three countries and thus it devolves some useless English Parliament powers to the other three English overruled countries.

    Quite frankly, if the EU cannot guarantee and protect my EU citizenship then I do not want to be an EU citizen nor, of course, do I want to remain an UK Citizen

    • Thomas Valentine says

      I think you and I have performed a version of the Sufi parable “the blind men’s description of an elephant”. Perhaps I tend to be rule based and leave out human concerns. Still I think the forms of international law are in an independent Scotland’s favour.

      What you seem to be describing is the Westphalian description of a treaty between two states. The UK government’s position is that Scotland does not exist. They say that Scotland ceased to exist the moment the Act of Union became law. They went as far as having a legal company write a declaration. Why not the government’s lawyers? Was it meant to be valid when written by lawyers connected to the Conservative Party. They claimed that Scotland would be a new state entirely. Further they claimed that the UK would continue to exist and only the legal administrative boundary of Scotland would form this new state. The fantasy continued with other claiming that this UK could dismember Scotland and keep bits. Faslane, Shetland etc.

      Myself I say this as hollow. Clearly Scotland continued as a legal entity and the use of Union backed up by a treaty and the legal language used by the UK government show they always accepted that situation. Mostly because as you seem to also hold, Scotland meets the definition of a country. Westphalian form require law, government and a defined territory. Since Scotland has one of the oldest fixed borders in Europe showing “parenis patria” for the entire territory. That includes the Northern isles as Scotland always maintained claim even when under Norse occupation. That’s why the battle of Largs was fought.

      The UK government still believes it is above the normal rules. The need to issue a legal position does demonstrate they are no longer confident of getting away with this position on Scotland.
      Scotland clearly meets the criterion of a Westphalian type sovereign state and under the normal understanding of international law if the UK was dissolved the disposition of those territories not forming either original country would have to be negotiated. The latter issue seems part the motivation for the UK’s legal claim.

      Westphalia though does cause you position some problems. The EU is not a state. Despite all the more rabid claims of anti-EU far right nationalists. As such they can not seek to interfere in internal politics of a sovereign state. The EU per the Lisbon Treaty is negotiating on behalf of the sovereign members and the position of EU citizens living here has been taken by the UK as bargaining chip. Instead of immediately guaranteeing their residency Westminster chose to threaten the expulsion of 3.3 million people. The SNP immediately after the result took the opposite position. That had an effect on the willingness of the other EU states to up hold Scotland’s legal rights.

      What we seek is in order protect the position of it’s citizens will the EU actively and vocally support Scotland. Or will they stay silent while they negotiate BREXIT. I can only imagine the effect of say a Scottish government saying that after independence it will issue a passport to any legal resident in England that applies. That promises the continued EU citizenship of many young English people and also would protect the residency of other EU citizens. The UK government would have threaten to strip from Scots the right to work in England or claim citizenship to Scottish born individuals, all while continuing to allow Irish people access. It could be done but how would the threat affect an independence campaign and BREXIT negotiations.

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