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.