In Depth Scottish Independence and EU Accession - By Daniel Furby March 2012
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In Depth
Scottish Independence and
EU Accession
By Daniel Furby
March 2012Copyright of this publication is held by Business for New Europe. You may not copy, reproduce, republish or circulate in any way the content from this publication except for your own personal and non‐commercial use. Any other use requires the prior written permission of Business for New Europe. Published by: Business for New Europe, Tenter House, 45 Moorfields, London EC2Y 9AE info@bnegroup.org ©Business for New Europe 2012
Contents Summary............................................................................................................................................................ 1 Legal ambiguities and political realities ............................................................................................................ 2 A ‘Scottish precedent’?...................................................................................................................................... 3 The Euro............................................................................................................................................................. 3 The EU budget ................................................................................................................................................... 4 The Schengen area ............................................................................................................................................ 4 Other possible negotiating areas ...................................................................................................................... 5 Conclusion ......................................................................................................................................................... 6 Further reading .................................................................................................................................................. 7
Scottish Independence and EU Accession
Summary
Accession to the European Union requires adjustments to its founding treaties and the unanimous
approval of member states.
For an independent Scotland to join the European Union, it would also need to negotiate the terms of
its membership.
It is unclear whether Scotland would be permitted to negotiate as a de facto EU member, and thereby
be placed on a fast track to accession, or whether a normal accession procedure would be necessary.
The possibility of a Scottish precedent emboldening secessionist movements in other member states
could incline the EU towards the normal accession process. It might also shape the EU’s attitude
towards the terms of membership.
The EU’s stance would similarly be influenced by the nature of Scotland’s candidacy – that is to say,
how far Holyrood sought exceptions from normal membership criteria.
From a European perspective, Scottish secession from the United Kingdom raises two main questions. First,
what would be the relationship between an independent Scotland and the European Union? Second, what
would be implications for the remaining United Kingdom of England, Wales and Northern Ireland within the
EU?
The latter question will be the subject of a separate analysis by Business for New Europe. Here it is sufficient
to note that it would certainly entail a reduction in the UK’s MEP apportionment, and might also bring into
question the UK’s voting weight within the Council (although any reduction would be marginal). More
difficult to measure, but ultimately more important, is whether and to what extent the UK’s relative
political influence would be compromised. Some have speculated that the remainder of the UK might have
to re‐apply to the EU, but there is currently no evidence or body of opinion to support this view.
The focus of the present article, however, concerns the scenarios that an independent Scotland might face
in its post‐secession European policy, with particular regard to membership of the European Union.
The partisan political and media debate has tended to sow more confusion than clarity, and there is a
pressing need for a fuller discussion of the opportunities and challenges that an independent Scotland
would face, without scaremongering on either side of the issue.
While much remains unclear – the answers to many questions would be the product of negotiations within
the EU, and between the EU and Scotland – this In Depth piece aims to provide a more nuanced
understanding of the political environment in which an independent Scotland would pursue its European
objectives.
1Scottish Independence and EU Accession
Legal ambiguities and political realities
The present Scottish government, formed by the Scottish National Party (SNP), which is leading the
campaign for separation from the UK, asserts that an independent Scotland would remain a member of the
EU and negotiate the terms of membership from within.1 Scotland’s First Minister, Alex Salmond, recently
restated this view during questions in the Scottish Parliament.2
While SNP statements generally imply a preference for membership of the EU post‐independence, Fiona
Hyslop, the Scottish Cabinet Secretary for Culture and External Affairs, recently observed that an
independent Scotland could choose between membership of the EU and membership of the European Free
Trade Association (EFTA).3 Both scenarios, however, raise important questions.
To deal briefly with EFTA first, this option may become less attractive the more it is examined, and does not
of itself answer the much more critical question about Scotland’s relationship with the European Union.
One possibility would be a Norwegian‐style arrangement: membership of EFTA and the European Economic
Area (EEA). Within the EEA, Scotland would have full access to the EU’s internal market without the
requirement of EU membership. While this option may at first glance appear attractive, there are
significant drawbacks.
Within the EEA, Scotland would pay to access the internal market and be required to accept all regulations
relating to it. Without ministers in the Council or MEPs in the European Parliament, however, Scotland
would have no influence over the legislation it would be required to implement.
It would also mean that in areas such as energy and innovation, where the SNP has expressed the
otherwise laudable ambition to be a global ‘green’ leader, a Scottish voice would be absent from EU policy
making and debate.4 Much more likely is that Holyrood would seek membership of the European Union.
It has been argued that the SNP too readily assumes automatic EU accession for an independent Scotland.5
While it is true that the existing treaties do not provide for the scenario of secession within a member
state, article 49 of the Treaty on European Union stipulates that the admission of a new member requires
the unanimous approval of the Council. Furthermore, the accession agreement must be ratified by each
member state, according to its constitutional requirements.6
The need for unanimity is therefore not in question. Less certain, however, is the procedure that might be
applied to a Scottish candidacy. The silence of the treaties on the issue of secession states will allow this to
be determined politically – the product of negotiation within the European Council.
The process by which an independent Scotland might be admitted to the EU is therefore uncertain. It could
be that it is required to enter formal accession negotiations. Alternatively, an effort might be made to reach
a quick political compromise, in the spirit of the British renegotiation of 1974‐75.
1
Scottish Government (2012) Your Scotland, Your Referendum.
2
The Scottish Parliament Official Report (25 January 2012) Referendum Consultation.
3
The Scottish Parliament Official Report (8 September 2011) European Union Involvement.
4
Scottish Executive (2007) Choosing Scotland’s Future: A National Conversation.
5
House of Commons Library (2011) Scotland, independence and the EU; Murkens, J. (2011) An independent Scotland would need
to apply for EU membership and would be compelled to adopt the euro.
6
Consolidated versions of the Treaty on European Union and the Treaty on the Functioning of the European Union (2010).
2Scottish Independence and EU Accession
A ‘Scottish precedent’?
Much would depend on whether the EU was inclined to treat the Scottish case as exceptional, and
therefore facilitate rapid accession, or whether broader political considerations would push it towards the
normal accession procedure.
The EU will be conscious that a Scottish candidacy would set a precedent, and that its handling of the issue
could influence secessionist movements in other member states, such as Spain and Belgium. If the EU were
to make Scotland’s path to membership an easy one, this might strengthen separatist arguments
elsewhere.
Similarly, the attitude of the EU towards negotiating procedure could be influenced by the nature of
Scotland’s candidacy. Should Holyrood only seek to resolve institutional questions, such as MEP
apportionment and Council voting weight, a political deal and rapid accession might be more likely.
If, by contrast, it sought to extend to an independent Scotland some of the derogations from EU rules that
currently apply to the United Kingdom, such as the opt‐out on the single currency and the rebate
mechanism for budgetary contributions, the likelihood of a formal accession and negotiating process might
increase.
The Euro
Perhaps the biggest policy question that an independent Scotland would face in joining the EU relates to
the euro. The SNP government states that Scotland would continue to use Sterling until membership of the
single currency had been approved in a referendum.7 Under EU enlargement criteria, however,
membership of the single currency is obligatory for all accession states.8
In practice, a commitment to euro membership need not ever be translated into reality (as the Swedish
case shows), but even the commitment could present difficulties in winning domestic Scottish approval for
EU accession.
A solution may lie in the UK opt‐out from the single currency, secured during Maastricht negotiations of
1991. The Scottish government could argue that this should continue to apply to an independent Scotland,
provided it continues to use pound sterling.
Again, much would depend on the attitude taken by EU member states and the European Commission. If
there was an inclination to treat the Scottish case as exceptional, Holyrood might be able to secure a single
currency opt‐out for an independent Scotland. If, however, there were concerns about setting a precedent
that might embolden secessionist movements elsewhere, Scotland could be asked to accept all EU
membership criteria, including the euro.
7
Scottish Government (2009) Your Scotland, Your Voice: A National Conversation; Scottish Parliament Official Report (8 September
2011) First Minister’s Question Time.
8
EurActiv (2009) Enlargement and the Euro.
3Scottish Independence and EU Accession
The EU budget
A second issue about which Holyrood might wish to negotiate is the EU budget. In 1984, Britain secured a
permanent rebate due to the fact that it faced disproportionately high net contributions despite being one
of the then European Community’s poorest member states.
In recent years, Scotland has fared much better than England in terms of budget receipts, and as part of the
UK also benefits from the rebate. A House of Commons paper estimated that in 2008/09, Scotland’s net
contribution to the EU budget was approximately £16 per person, and that without the rebate this figure
would have been £92 – over five times more.9
While the House of Commons paper concedes that these are ‘back‐of‐the‐envelope’ calculations, such a
stark prospect could present a further difficulty for a Scottish government trying to sell EU membership to
Scottish public opinion, and therefore increase the incentive to retain a safeguard mechanism against
excessive contributions.
Given that the British rebate is itself highly controversial within the EU, and that many would like to see it
scrapped, Scotland would be likely to encounter great difficulty in securing the exception on an
independent basis.
The Schengen area
A third subject on which an independent Scotland might seek a derogation from normal EU rules is the
Schengen area – the principal feature of which is passport free travel between EU member states. Once
again, the UK enjoys specific exemptions from the Schengen rules and retains border controls vis‐à‐vis
other member states.10
It remains unclear whether an independent Scotland would want an opt‐out on Schengen, but the
alternative prospect of erecting border controls with the remainder of the UK would provide a strong
argument for doing so.
Once more, the position of the EU would be influenced by its general attitude to the question of Scottish
secession and the potential implications of setting a precedent.
Conversely, given that Scotland’s only land border is with England, and that Ireland also has opted out of
the provisions to dismantle border controls, a pragmatic view might prevail whereby the status quo on
Schengen is allowed to continue.
9
House of Commons Library (2011) Scotland, independence and the EU.
10
For a useful introduction to this subject see: Brady, H. (2012), Saving Schengen: How to protect passport‐free travel in Europe.
Centre for European Reform publication.
4Scottish Independence and EU Accession
Other possible negotiating areas
There are two other areas where domestic concerns could lead an independent Scottish government to
seek derogations from EU policies.
The first concerns justice and home affairs (formally known as the Area of Freedom, Security and Justice).
On this the UK again enjoys a special position; it is not obliged to participate in EU activities, but has the
option to opt‐in to specific aspects of its work.11
A similar situation concerns the Charter of Fundamental Rights. Part of the Lisbon Treaty, the UK secured a
protocol to the effect that the Charter does not create rights that can be enforced in UK courts. The
protocol currently applies to the UK and Poland, and an independent Scotland may wish to ensure that it is
also covered by it.
The second issue is fisheries. The EU’s Common Fisheries Policy has been a contentious subject in the UK
since the accession negotiations of 1970‐72, and the Scottish fishing industry accounts for a large
proportion of the UK total.12 It is likely that if an independent Scotland were to enter negotiations with the
EU, there would be pressure from the domestic fishing industry to negotiate special terms.
Prior to the 2004 enlargement, Malta secured a unique arrangement on fisheries which has the effect of
protecting Maltese fishing interests.13 Iceland is now attempting to do the same and, if it is successful, the
argument for Scotland doing so would be strengthened.
At a diplomatic level, however, the fact that Scotland already applies the CFP means that a request for
special treatment would be harder to justify. If a Scottish derogation were considered, other member
states would be likely to insist on concessions to their own fishing interests.
More generally, in preparing its negotiating position, an independent Scottish government would have to
recognise that the greater the number of opt‐outs and derogations it were to seek, the more difficult and
protracted the negotiations would be likely to be, and the more the EU might incline towards a traditional,
formal accession process.
11
House of Commons Library (2011) UK Government opt‐in decisions in the Area of Freedom, Security and Justice.
12
Marine Management Organisation (2011) UK Sea Fisheries Statistics 2010.
13
Times of Malta (2002) Agreement on Fisheries Management Zone.
5Scottish Independence and EU Accession
Conclusion
Like any applicant country, Scottish accession to the European Union would require the unanimous
approval of existing member states.
There is less clarity, however, about the accession procedure that would be applied to a Scottish candidacy.
Much might depend upon the nature of Scotland’s application – whether it was prepared to accept all
membership criteria and negotiate only over institutional questions, or whether it wished to pursue specific
exemptions from EU rules.
The stance of the EU would also be influenced by the strength of concern about a Scottish precedent
providing inspiration for secessionist ideas in other member states. This concern might also affect its
willingness to permit Scottish derogations.
There are substantive subjects about which an independent Scotland might wish to negotiate: the euro,
budgetary contributions, the Schengen area, and justice and home affairs. In each case, Scotland’s stance is
likely to be influenced by domestic politics and the need to reassure public opinion about the consequences
of independent EU membership.
The picture is currently uncertain and would only be clarified once an independent Scotland had taken the
necessary decisions about the nature of its application and the European Council had examined it.
For the time being the debate over the hypothetical relationship between an independent Scotland and the
European Union should be treated with caution.
Any assumption of a fast track to accession is clearly premature, but it cannot be excluded either.
6Scottish Independence and EU Accession
Further reading
Official Sources
House of Commons Library (2011) Scotland, independence and the EU.
House of Commons Library (2011) UK Government opt‐in decisions in the Area of Freedom, Security
and Justice.
Scottish Executive (2007) Choosing Scotland’s Future: A National Conversation.
Scottish Government (2009) Your Scotland, Your Voice: A National Conversation.
Scottish Government (2012) Your Scotland, Your Referendum.
Secondary Sources
Deutsche Welle (2012) Europe concerned over Scottish independence referendum.
EurActiv (2009) Enlargement and the Euro.
Happold, M. (1999) Scotland Europa: independence in Europe. Centre for European Reform.
Hudghton, I. (2012), Scottish independence and EU membership – how would it work? Public Service
Europe.
Murkens, J. (2011) An independent Scotland would need to apply for EU membership and would be
compelled to adopt the Euro, 2011.
7Scottish Independence and EU Accession
About the author
Daniel Furby is an Associate at Business for New Europe, based in Brussels. He has a PhD on British
entry to the European Community, including the accession negotiations, and has taught UK‐
European relations at Queen Mary, University of London.
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