Answering how an independent Scotland would work in the EU is much more mundane than anyone seems to want to admit

Whether (and indeed how) Scotland would remain in the EU if it became an independent state has been an issue that has risen up the political agenda over the past few months. Theresa May has weighed into the debate today, stating that border controls would have to be imposed between Scotland and England if the former joined Schengen. Meanwhile Alex Salmond has apparently not asked the European Commission whether Scotland would continue to be in the EU if it became independent (tweet from @fincarson).

The problem with all of this is that the EU-Scotland issue is more complicated and more mundane than anyone would like to admit, and none of the answers to the main questions really suit either the unionists or the separatists.

I’m going to try to take apart all of the aspects of this as clearly as I can. I would say I am mildly unionist – I don’t see the point of Scottish independence, but conversely it does not bother me much if the Scottish people vote in favour of it. Perhaps that’s why I find this whole ‘debate’ so frustrating.

Right, anyway, to the matter in hand – an independent Scotland in the EU (or not).

The first thing to make clear is that a country splitting in two within the European Union has never happened before. It’s unprecedented. So to claim to be able to draw parallels with other enlargements of the EU will only take us so far.

Secondly, if Scotland were ever to vote for independence, the split is not going to take place overnight – it would take many months or even years to sort out the legal issues, and the EU questions could be handled in parallel.

Thirdly, what about the issue with Salmond’s question: would an independent Scotland automatically be in the European Union? Salmond has not asked this question most probably because he knows the answer: formally the answer would be NO. All current Member States of the European Union have to ratify an accession treaty to allow the new state to join – this is the process being conducted for Croatia right now. The EU Treaties are regular treaties under international law, and so the signature of the 27, 28 or however Member States there are in the EU were an independent Scotland to apply would be needed.

Having said that we come to the fourth issue: how hard would it be for Scotland to negotiate accession? From a legal point of view it would be simple, with two exceptions (see below). The acquis communautaire, the amalgam of all the EU law in existence, already applies to Scotland. Scottish farms, fisheries, mineral water bottling plants etc., etc., are all already compliant with EU law. All the complicated negotiations conducted on these points for every previous enlargement would be able to be finalised very swiftly for Scotland. These negotiations could be conducted in parallel with negotiations with Westminster.

The two main complexities concern Schengen and the Euro. For any new country joining the EU is legally obliged to participate in both of these.

Before a country can join the Euro it needs a functioning central bank to be part of the European System of Central Banks. So Scotland would have to establish a Central Bank, but accession of Scotland to the EU would be on the basis of a commitment to eventually joining the Eurozone (although – Sweden style – they could keep themselves out on a technicality if necessary). The SNP would have to be clearer on this issue than Salmond is here.

The Schengen issue is a little more complicated, for on this one even the SNP would favour passport-free travel between England and Scotland than between Scotland and the rest of the EU. For this to be assured Scotland would need a derogation when negotiating its accession – a commitment to not have to prepare to join Schengen. With the prospect of a pro-EU Edinburgh in the EU I cannot see the other 26 Member States kicking up a fuss on this point, while the pressure from English and Scottish businesses to keep the border free of checks would be considerable. So on this issue while there might formally be a legal complication there would, I am sure, be a political compromise that could be struck.

So there you have it. More than 700 words of explanation that can be summarised thus: Scotland joining the EU would neither be the formality that Salmond would want, nor would it be the legal and political torture that defenders of the UK claim.

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9 comments

  1. Rick Worth

    One small point, which has been made before. The EU is unable to negotiate with Scotland until it is independent. There is no provision for the EU to have formal accession talks with one a bit of a country. Whether such things can be resolved in a practical way would mainly depend on the good will of the UK to allow it to happen and of other MS not throwing a spanner in the works because of their own internal independence movements.

    BTW, Desmond O’Toole has got it wrong. The UK would continue to be a Member State with no changes needed. Scotland is only a member of the EU through the UK being a member, in much the same way as any region of any MS is. That fundamental point appears to escape some folk.

  2. Martin Keegan

    obviously that should be “anti-secession” not “anti-succession”! 🙂

  3. Martin Keegan

    @Moray may like to think that no Scottish government is going to install border posts, but the UK government will have to because an independent Scotland will be outside the Common Tarriff Area until it has negotiated re-entry. The anti-succession axis (Spain, Cyprus, and her orthodox allies Greece and Romania) are not going to let Scotland in without massive concessions from Scotland and the rump UK.

    Within the rump UK, there will be 59 fewer seats in the House of Commons, giving a Tory majority (indeed the Secretary of State for Scotland, and Danny Alexander, cease to be members of the legislature) without Lib Dem support. Despite finally obtaining a majority, Cameron may well at this point face a leadership challenge, having broken up the country, if the Tory party continues to exist. The 305 MPs elected as Tories outside Scotland in 2010 are in any case going to have to work out what to do about the Spanish-Cypriot threat to veto Scottish EU membership and establish a customs and immigration barrier across Great Britain unless sovereignty over Gibraltar, Akrotiri and Dhelekia is handed over. I can imagine the rump UK itself vetoing Scottish accession in these circumstances.

    This all assumes that Salmond doesn’t resign himself to having to reapply to the EU, accept the logic of his position, and go all in as a Eurosceptic and ask the Scottish people to take their fisheries and energy resources out of the Common Market.

  4. On Scottish Independence, European Citizens and French Tweets | Leiden European Union Studies Alumni Association

    […] Jon Worth blogged about an independent Scotland in the EU. While there currently is a lot of discussion about how an independent Scotland would work in the EU, Jon Worth feels that it is “much more mundane than anyone wants to admit”. His approach is simple and pragmatic. The questions at hand are: (1) if Scotland would become independent would it still be in the Union, and (2) since every new member state is legally obliged to participate in the Euro and Schengen, how would Scotland tackle those problems. […]

  5. Desmond O'Toole

    Hi Jon … I don’t agree with the idea of using accession treaties as the best way of examining these issues. We know that law largely follows politics in the EU in these matters. Both Scotland and what remained of the UK would likely be treated as successor states and both would have to renegotiate their institutional relationship with the EU post-independence. Scotland is currently within the EU and applies the acquis as you said. On Day 1 of independence nothing will have changed in Scotland either with respect to the acquis or Schengen or use of the euro/sterling. The only change the rest of us will see will be a new treaty for Scotland and UK-lite which would require ratification by the other 26 to take into account the institutional changes. It would be remarkable if Scotland’s continued membership of the EU was made dependent on adoption of the euro or Schengen.

  6. Moray

    Always guaranteed a good dose of common sense on your blog Jon, and this is no exception. The Schengen point has always been a non-issue, regardless of Theresa May’s havering – no Scottish Government is going to install border posts north of Berwick. Similarly, the Tory threats to bomb Scottish airports (yep, this was actually in the press) are too silly to comment on.
    More fundamentally, what happens if Scotland becomes independent? Well, one argument is that it doesn’t leave the UK – instead the UK ceases to exist following the dissolution of the 1707 Act of Union. And that throws up some fun and games. Who’s in and who’s out of the EU in this case? Arguably, both successor states are in (see Jonathan’s comment) – or both are out. How much clamour would there be from the rump UK to get back in (present blog excepted, of course)?

  7. Jon

    Interesting last point… Problem is that Scotland would not – on its own – comply with some of the criteria the whole UK had to comply with to sign these treaties in the first place.

    All messy, but not impossible to solve.

  8. Jonathan

    I think you are mostly correct Jon, but I would expect to see some problems thrown up by Spain, Greece, Bulgaria, Cyprus etc regarding issues of succession.

    Also, you rightly point out that European treaties are like any other international treaty. This being the case, you can argue that legal precedent means that Scotland would be bound by any international treaty previously signed by the UK government, including the European Accession Treaty.

  9. Union Jock

    So how would a Scottish Central Bank work? Surely a country joining ERM II and subsequently the Euro needs its own currency in order to fulfil the convergence criteria? How could that possibly work if a separated Scotland was using Sterling – that is, another country’s currency and central bank?