EU transition for an independent Scotland

Where would a newly independent Scotland stand with the European Union?  Critics attack the Scottish Government’s assertion that after a ‘Yes’ vote, Scotland’s transition to full EU membership would be fluid and speedy.  They insist instead that a ‘Yes’ vote will see Scotland expelled from the EU, thus requiring a re-application process in which the only guarantee is complexity and protraction.

Amidst the increasingly tiresome politicking on this issue, one thing is clear: we should not become too fixated upon ‘what EU legislation says’ about Scotland’s EU prospects.  There are no regulatory articles which clearly legislate for a situation which would arise from Scotland’s democratic secession from the UK.  More specifically, there is no mechanism in the EU treaties for expelling states which become independent from a current EU member state.

What this means is that there is no definitive ‘truth’ to be reached in the debates over an independent Scotland’s EU status.  Those searching for it – those who demand ‘clarity’ with such strident insistence – need to be more realistic and should focus instead upon more attainable understandings.  A more sensible approach might be to consider the nature of the EU itself, the imperatives which drive the organisation, and what precedent tells us about how Brussels might act towards a newly independent Scotland.  In taking this approach, we can acknowledge that whilst there are no certainties, it is possible to highlight three observable truisms.

An expansive EU

Firstly, the Scottish Government has made it clear that an independent Scotland will want to remain within the EU.  It will not say so at this time but this is exactly what Brussels wishes to hear.  We know that the EU is an organisation whose fundamental instinct is to expand; its ongoing efforts to strengthen ties with Ukraine amply testify to this.  Ukraine is beset by democratic, financial and infrastructural problems and yet Brussels continues to strive – in the face of steely Russian opposition – for closer relations.  In watching this process, it seems implausible to consider that Scotland – with its entrenched democratic tradition, its many economic competencies, and its proven track-record of having been in the EU since 1973 – might be regarded as an expulsion-candidate by Brussels.  If the EU is prepared to expend considerable efforts in drawing Ukraine closer, can we take seriously the suggestion that it would expend similar efforts in pushing Scotland away?

EU citizenship protections

Secondly, we know that the EU defines itself as a champion of democracy and legislatively-protected human rights.  We know also that there is no mechanism by which EU citizens can be stripped of their EU citizenship, thereby depriving them of the various protections that EU citizenship offers.  If we accept these facts, then we must surely acknowledge the sheer improbability that a newly independent Scotland would be expelled – against its wishes – from the EU.  For the EU to demand this would signify its willingness to suddenly deprive Scottish EU citizens of the very human rights protections that it champions with such pious vigour.

Graham Avery – an Honorary Director-General of the European Commission who participated in successive negotiations for EU enlargement – has endorsed this perspective in testimony before the House of Commons Foreign Affairs Committee.  When asked to ‘clarify the procedure’ by which – following a ‘Yes’ vote – Scotland could become an EU member, Avery asserted that Scotland’s five million citizens have been members of the EU for forty years and thus have deeply entrenched rights as European citizens.  For both practical and political reasons, Avery concluded, Scotland’s EU citizens could not be asked to leave the EU and apply for readmission.

Scotland – a special case

Thirdly, we know that Scotland’s situation would be a ‘special case’.  Precedent tells us how it may be responded to by the EU.  When the German Democratic Republic was unified with West Germany on 3rd October, 1990, it became an EU member virtually overnight.  This near-seamless transition was subject to little protraction and was addressed quite logically: the West German government simply argued for East German integration and worked to convince sceptical states that it posed no risk to the wider European project.

The acceptance of the unified Germany into the EU was a triumph of common sense, can-do politics and it remains a striking reminder of the EU’s capacity to ‘find a way’.  Graham Avery has speculated that given the specialness of Scotland’s case, the EU would most likely adopt ‘a simplified procedure’ for Scotland’s negotiations.  If the German example adds anything to Avery’s contention, it is that firm support from London would maximise the chances of Brussels agreeing to such a ‘simplified procedure’.

London would support a newly independent Scotland

In contemplating the likelihood of London offering such support, one thinks instantly of current goings-on: pro-unionist politicians offering thinly-veiled threats that London won’t play ball with an independent Scotland; UK Government officials briefing against Scottish EU membership in meetings with other state representatives.

This uncooperativeness would surely cease in the event that Scots voted for independence.  It is worth emphasising that London would have nothing to gain from seeing its closest neighbour and second-largest trading partner somehow idling in the aftermath of a ‘Yes’ vote.  London’s political, economic and security interests would be best served by seeing Scotland ‘up and running’ as quickly as possible, and this would include supporting the smoothest EU transition for Scotland.

Downing Street could facilitate this by confirming that Scotland and the UK would share ‘joint successor status’, in the event of Scottish independence.  Agreeing to this would optimise Scotland’s transition to full EU membership and would grant Scotland the same rights and opt-outs from the EU treaties that it currently enjoys as part of the UK.  In agreeing to share successor status, Edinburgh and London would also head off any political frictions and market jitters which might arise over issues such as UK debt apportionment.  Agreeing ‘joint successor status’ would effectively guarantee Scotland’s liability for an agreed proportional share of the UK’s debt, thus settling a thorny issue which the UK Government took steps to address earlier this week.

Portuguese and Spanish politicians will continue to hover at the periphery of Scotland’s EU debates in the coming months, surreptitious invitees to a campaign aimed at dampening optimism over Scotland’s ‘EU chances’.  However once the referendum politicking is done, and if the vote is ‘Yes’, things will look different.  Suggestions that London would not support a newly independent Scotland’s EU-aspirations are fanciful.  Would the strength of cross-border relations, social ties and a shared history suddenly count for nothing?  Would Edinburgh really find itself unsupported by London ahead of EU transition negotiations, regardless the uncertainty that this ‘cold shoulder’ might create for economic and security interests in London?  It is extremely hard to imagine so.

There is no mechanism by which an independent Scotland could be expelled from the EU.  And whilst Scotland’s transition to full EU membership would not occur at the speed of East Germany’s, the German example shows precisely what is possible.

This is the extended version of an article which appeared in the Scotsman on 17th January 2014

Dr John MacDonald is Director of the Scottish Global Forum

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