Scottish Independence: one brief letter, one big problem for the Yes campaign?

Here at Liberal Democrat Voice, I have occasionally drawn the attention of readers towards the Lords Select Committee on Economic Affairs and its inquiry into the economic implications for the United Kingdom of Scottish independence. And this week, the Committee appears to have obtained an answer to a question which has hung heavy over the debate until now, i.e. would an independent Scotland automatically become part of the European Union.

In response to an invitation from the acting Chair of the Committee, Lord Tugendhat (a former two-term European Commissioner), Jose Manuel Barroso wrote;

Whilst refraining from comment on possible future scenarios, the European Commission has expressed its views in general in response to several parliamentary questions from Members of the European Parliament. In these replies the European Commission has noted that scenarios such as the separation of one part of a Member State or the creation of a new state would not be neutral as regards the EU Treaties. The European Commission would express its opinion on the legal consequences under EU law upon request from a Member State detailing a precise scenario.

The EU is founded on the Treaties which apply only to the Member States who have agreed and ratified them. 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 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 and the Treaties would no longer apply on its territory.

Under Article 49 of the Treaty on European Union, any European state which respects the principles set out in Article 2 of the Treaty on European Union may apply to become a member of the EU. If the application is accepted by the Council acting unanimously, an agreement is then negotiated between the applicant state and the Member States on the conditions of admission and the adjustments to the Treaties which such admission entails. This agreement is subject to ratification by all Member States and the applicant state.

This would appear to make clear that Scotland would;

  • not be a member of the European Union by right, and would have to reapply.
  • be subject to possible blackballing by any existing member state.
  • In response, Nicola Sturgeon said;

    We do not agree that an independent Scotland will be in the position of having to reapply for European Union membership, because there is no provision for removing EU treaties from any part of EU territory, or for removing European citizenship from the people of a country which has been in the EU for 40 years.

    We have always said that the specific terms of Scotland’s continued EU membership as an independent nation will be negotiated – but the crucial point is that these negotiations will take place from within the EU, because in the period immediately following a ‘Yes’ vote in the referendum, Scotland will still be part of the UK and the EU.

    But without doubt, Mr Barroso’s intervention is, to put it mildly, unhelpful to the Yes Campaign, especially given that polls show that Scots voters are yet to be convinced of the worth of the case. Without certainty over retention of the pound and membership of the European Union, their efforts are going to have to be redoubled to make the case.

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    8 Comments

    • Tom Snowdon 14th Dec '12 - 1:22pm

      Nice point Dan, as the state which had signed the EU treaties would no longer exist. Apart from a forced name change, this would probably please most of the Tory party.

    • Mark Argent 14th Dec '12 - 3:09pm

      Dan’s point is a credible alternative, but Barosso is unlikely to be unaware that a “united kingdom” is a united kingdom. The (strong) case in favour of Barosso is that the UK would still comprise England, Wales and Northern Ireland, and Scotland, for all its history, is only a small proportion of the UK population. The rest of the EU could reasonably view a continuing UK as only a little diminished by the departure.

      One test would be whether the people of the UK as a whole had voted to dissolve the UK. If we had a UK-wide referrenum to dissolve the union then the clear implication would be that a vote to dissolve the UK would be the separating of a united kingdom into its constituent parts. By holding the referendum only in Scotland, the strong implication is that Scots are being asked whether they wish to leave a UK which would continue to exist — albeit diminished — without them.

      The upshot is that Barosso is probably right, both in terms of the numbers game of contemporary society, and the understanding implicit in the present process.

    • Not quite.

      The Act of Union between England and Scotland created the United Kingdom of Great Britain in 1707, but this was superceded and enhanced by the Act of Union with Ireland which created the United Kingdom of Great Britain and Ireland in 1801.

      In other words for the UK to no longer exist both Acts of Union would have to be reversed, which means Northern Ireland would also have to gain independence… somehow I can’t see Scotland trying to force the hand of the Ulster-Scots, at least, not again!

    • These legal arguments suggest that any disgruntled regions of EU member states can take a fast track exit from the EU, simply by voting for independence. If the argument were upheld there could be political chaos much worse than independence movements in Catalonia or Scotland.

    • Michael Parsons 16th Dec '12 - 11:47am

      Liberal reform tradition supports Home Rule and the rights of small nations; including the break-up of the UK by Irish Independence. It is strange to read entries here apparently in favour of voluntary servitude. Time to think again and back Independent Scotland to the hilt?

    • Michael,
      that’s incorrect. The traditional of liberal reform tradition supports self-determination, which is only practicable when framed within a universal conception.

      And since independence is impossible in an interdependent world national status is less important than the means of managing relations, which is only possible when individual citizens have equal guarantees of standards.

      Historically liberal tradition supported home rule because nation states did not support fully-fledged equality, but as society liberalises and integrates symbolic institutions lose relevance.

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