Tuesday, 11 December 2012

"Spain won't allow it"

I doubt that there’s much to argue with in Barroso’s claim that an independent Scotland (or Wales, or Catalonia...) would need to apply for membership of the EU.  It’s probably a fair reflection of the legal position. 

(Whether it’s only Scotland which would need to apply is another interesting legal question, which probably revolves around whether independence is a case of secession from the UK, or dissolution of the UK.  In the second case it seems likely that, in strict legal terms, both successor states would need to apply, since if one of them cannot be assumed to be inheriting the rights and obligations of the predecessor state, then neither can the other.  One for the legal anoraks.)
It doesn’t exactly follow, though, that Scotland’s application, and the negotiations surrounding it, would take place from 'outside the EU', as the unionists have suggested.  They seem to be making the wholly invalid suggestion that the referendum on independence takes place one day, and Scotland becomes independent the minute the result is announced.  That’s just plain silly.
A ‘yes’ vote in a referendum (which I still fear is unlikely in the First Scottish Independence Referendum) would inevitably be followed by a period of negotiation on the detail.  That negotiation would cover the allocation of assets and liabilities between Scotland and RUK, as well as any international obligations and rights – including Scotland’s status in the EU.  Only after conclusion of all those discussions would independence take effect – and it is not beyond the bounds of possibility that there would be another, confirmatory, referendum on the detail.  It is in no-one’s interest for there not to be an orderly and planned transfer of power and responsibility.
The legal question regarding the EU is what made the news; but the more pertinent question is not whether Scotland would need to apply or not, but whether that application would be accepted.  Short of ridiculous demands being placed by Scotland’s new government, it is hard to see how any application would not be successful.  In purely pragmatic terms, why on earth would the other member states not welcome a new state?  Rejecting an application would run counter to the whole European project.
And nothing in what Barroso said touched at all on how the application would be treated – he merely reiterated what has been said before, which is that application would be necessary.  It is others who have jumped on his statement to raise doubts about the success of any application, and they’ve done so not from any legal considerations, but as a form of argument against Scottish independence.
It’s certainly true that the Spanish state is unlikely to express any enthusiasm in advance of the situation arising, and would prefer that the situation never arose at all, because it might encourage the Catalonians and others.  But does that really mean that they would seek to block an application when it came before them?  I doubt it.  When push comes to shove, I really can’t see any EU member states arguing that they should try to block the democratic will of the people of Scotland – I just don’t expect them to admit it in advance.
Then we come to the way that the unionists in the UK are using the statement.  Do they really and truly believe that they can win the referendum by telling people in Scotland that they can’t be independent because Spain won’t allow it?  Not only is that not a particularly honest argument, it has the potential for being a massive own goal, and encouraging people to vote yes.  They’ll have to find better arguments than that one.


Democritus said...

Agree with your reasoning John, but the SNP have been trying to maintain for quite some time now that no new accession treaty would be needed; which is disingenous.

See http://www.parliamentlive.tv/main/Player.aspx?meetingId=12007
for expert opinion.

The effective position is indeed that following a yes vote in 2014 there would be a period (at least two years) in which Scotland and RUK negotiated over terms. Until the RUK/Scotland position were stable and agreed there could be no question of Scotland entering serious Treaty negotiations with other countries. Once RUK and Scotland do reach a compromise which allows independence to take place however it is politically inconceivable that an application for EU membership with the support of RUK would be vetoed. Madrid would be unhappy, but so would London. The only veto Scots need worry about rests there.

John Dixon said...

If they have actually tried to argue that no treaty would be needed, then I'd agree with you about that being disingenuous. Even if the treaty was the equivalent of the Monty Python cat licence (with one country's name crossed out and Scotland's written in), the new state would have to formally sign a document agreeing to a number of rights and obligations, and it's silly to argue otherwise.

I thought, however, that the nub of the argument was more about the mechanics - whether an independent Scotland would have to leave the EU and then re-apply for membership from outside. I see no basis for that assertion; there is no reason at all why the negotiations can't be done and dusted in the period between the hypothetical yes vote and the implementation.

I also agree with you that the real negotiations would be those between Scotland and the RUK; how easy they would be depends on how reasonable both sides want to be - London would have to be willing to accept the will of the SCottish people with good grace, and Edinburgh would have to be reasonable in its demands. An excess of posturing by either side wouldn't help.

But once those negotiations are completed, including an agreement between Scotland and RUK on the division of external liabilities and commitments, then provided Scotland doesn't seek to significantly vary the terms from those pertaining now, I can't see the negotiations with the EU being much more than a formality. There'll be lots of huffing and puffing, but there really is no basis on which the EU would refuse to allow Scotland to remain in the EU on essentially the same terms.

I've seen a question raised recently about whether Scotland would, as a 'new' member, be obliged to adopt the Euro. Leaving aside the question as to whether that might actually be desirable anyway, I just don't see it being forced on them, in terms of practical politics.

Underlying all this is the fact that all the pontificating is based on legalistic theory surrounding the rights and obligations of 'new' members. There is no precedent as yet for a 'new member' joining as a result of internal, rather than external, enlargement. The first country to do that will set a precedent, and I'd bet that the precedent which will be set will be based around continuity of membership and terms, regardless of what the treaties might say. It's the only rational and sensible way to proceed.

Democritus said...

RUK would also (assuming it decided to stay) have to do a bit of renegotiation to agree their new membership fees, Council voting weights, MEPs etc. Far more pertinently however the entire EU, or at least the Euro 16 will have to agree on major institutional reforms to defend the single currency. These changes may well affect the timetable for further accession rounds, even if they don't fundamentally alter the acquis for non Euro states.

The aim of concluding agreement across all the issues involved by 2016 seems extremely ambitious to me; but if both govts were committed to a swift clean break, then it's concievable that seperation COULD occur before the other 26 were ready to recieve a 28th full member state. That might be a good thing in fact as it is a slow messy divorce with recriminations on both sides echoing down the decades that would pose the more fundamental threat to Scottish proserity.

In many ways the Cyprus accession experience was unhelpful in that the EU will be very leery of committing itself to accepting a member state that still hasn't settled outstanding issues. In particular, setting a deadline would probably not be acceptable in Brussels.

John Dixon said...


I don't disagree fundamentally with anything you say there. However, perhaps I may have made an unstated assumption...

Scotland and RUK would certainly have a debate about how the UK's assets, rights, and liabilities would be shared out. But as far as the EU is concerned, if the total of contributions and benefits which accrue to one member state today (the UK) remains unaltered, but is simply split between two member states in future (Scotland and RUK), then the impact on the rest of the EU is minimal. For sure, there still need to be changes to treaties (an extra member of the Council of Ministers and so on), but they're not on anything like the same scale as the admission of a new state from outside.

It would also mean that the hardest part of any negotiation was that between Scotland and RUK (but I think we're probably agreed on that anyway). On that point, I tend to agree with you that two years to complete all aspects of such negotiations looks ambitious, although not impossible. (It's not impossible, of course, that poers would be transferred in stages, rather than all at once, as and when arrangements could be made, but a clean and tidy independence settlement will still need to cover an awful lot of detail which I suspect that neither side has really given a huge amount of thought to, as yet.)

And it's certainly true that the problems of the Euro zone may still be affecting the EU's ability to move on other issues. However, the complications for all parties concerned of taking Scotland out of the EU and then back in at a later stage dwarf the problems of minor adjustments to keep Scotland in.