This article is the second part of Glimpse’s three-part series on independence (first part: “Masters of Their Future: Catalan Quest for Independence”)
This Thursday, a referendum will take place in Scotland for the people to decide whether or not to leave the UK and become an independent state. If the majority vote in favor, then the Scottish National Party (SNP) will make history by breaking the great Union that has been in place for three centuries. However, those planning on voting “Yes” should think twice; leaving the UK would be detrimental to Scotland’s future for several reasons, including the uncertainties of joining the EU
The Scottish government fully intends to stay within the EU after its proposed independence from the UK. In its recent white paper, the Scottish government laid out plans for the transition of its independent EU membership. It intends to start the process right after the referendum vote, involving negotiations with the UK government and EU member states and institutions. Even if the Scottish people vote “Yes,” Scotland will continue to be part of the UK until March 2016 when it becomes fully independent, which the Scottish government believes is enough time to become a fully functioning member of the EU.
The EU is an institution bound by treaties; thus, an independent Scotland’s accession to the EU will need to go through formal legal channels. Typically, the law by precedence rule would apply. However, the Scottish situation is sui generis; no specific and exact EU laws are available for consultation. The Scottish government argues that Article 49 of the Treaty of the European Union – the formal legal basis for accession of member states – is not suitable for Scotland’s case, because Scotland has existed inside the EU and applying EU laws since 1973 by association with the UK. Scotland would not need to apply for EU membership as any other applicant state (e.g., Albania, Turkey). Hence, Article 48 of the Treaty of the European Union – “a Treaty amendment to be agreed by common accord on the part of the representatives of the governments of the member states” – would be the more suitable legal basis for Scotland’s accession.
Opinions from the EU Institutions and Member States
The European Commission has always stated that Article 49 would be the legal basis for any accession process of new member states. Recently, the President of the European Commission, Jose Manuel Barroso, reiterated this position, stating: “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.” On this matter, the European and External Relations Committee (EERC) of the Scottish Parliament received an opposing opinion from the former European Commission Director General, Jim Currie, who stated: “I am not sure whether Mr. Barroso was speaking qua the European Commission or qua the current and outgoing President of the Commission, but the statement that he made was unwise. I also think that it was inaccurate, in so far as he said that it was virtually ‘impossible’ for Scotland to negotiate entry or re-entry.” To resolve this inconsistency and obtain a clear answer, the EERC decided to write to the Vice President of the European Commission, Viviane Reding, on her portfolio responsibility for citizenship. In response to the EERC, Vice President Reding delivered a similar response as President Barroso’s and reiterated the fact that Article 49 would be the appropriate legal route.
The President of the European Council, Herman van Rompuy, also expressed a consistent ruling this past December: “If a part of the territory of a member state ceases to be a part of that state because that territory becomes a new independent state, treaties will 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 Union and the treaties would, from the day of its independence, not apply anymore on its territory.” Despite the rhetoric from EU officials, ultimately, the decision would depend on the 28 EU member states. Since they have the right to make decisions about accession processes in general, they should be entitled to the right of deciding which legal basis Scotland could take in joining the EU as an independent state.
An absence of consensus would leave Scotland’s EU bid ‘dead in the water’. To the dismay of Scottish nationalists, the UK would have a vote in deciding whether Scotland could join the EU and whether Article 48 or 49 should be used as the appropriate legal justification. When asked about the possibility of using Article 48 as the legal basis for Scotland to negotiate its way into the EU, the Secretary of State for Scotland, Alistair Carmichael, quoted EU law and used several previous cases in the European Court of Justice to indicate that “if Scotland were to vote to leave the UK, and hence to leave the EU, one of the consequences would be a loss of EU citizenship.” He continued: “we [the UK government]do not have a specific proposal to put to the Commission. We do not agree on Article 48. The view of the United Kingdom Government is that the only way to seek accession on membership of the European Union is through Article 49.” The message from the UK government is clear: leaving the Union would nullify Scotland citizens’ EU citizenship, and force the new state to apply for EU membership like any other applicant state through Article 49.
If Scotland were to become independent, the UK government, according to Mr. Carmichael, would no longer be negotiating on Scotland’s behalf its terms to remain a part of the EU. It is clear that the Scottish government has very different interpretations of the Edinburgh Agreement from that of the UK government. By “respecting the referendum’s outcome” as was stated in the Edinburgh Agreement, the UK government’s legal obligation is to continue to function as the United Kingdom government. Due to Scotland’s potential departure, the UK would only represent the interests of the English, Welsh and Northern Irish. “Respecting” does not necessarily imply that the UK government will continue to represent Scotland after Scotland has already chosen to leave the UK. On that note, the Scottish government’s plan to break free from the restraints of UK control while still having the perks of UK membership is naive.
One of the Scottish government’s arguments against the use of Article 49 is that “by virtue of having joined the EU in 1973, this is not the starting position from which the Scottish Government should be pursuing independent EU membership.” Another argument against the use of Article 49 is that it would result in a period in which Scotland would be outside of the EU, because Scotland would first need to be fully independent and then become eligible to apply for EU membership. This prospect generates unwelcoming consequences because the rights of Scottish and EU citizens will be violated. Instead, what the Scottish government proposes with Article 48 promises to complete Scotland’s EU membership transition within only 18 months, so that if Scotland is officially independent from the UK in 2016, it would also be a new independent member state of the European Union.
However, in the recent history of EU enlargement, no country has ever completed its accession negotiations and finished the accession process close to that short amount of time. The Copenhagen Criteria and the full body of the acquis communautaire are very time-consuming to fulfill. Although some academics have declared that it would be easy for Scotland to pass those requirements because it has already been operating under those laws for more than 40 years, Mr. Carmichael stated Scotland would still need to make changes constitutionally to fulfill all 35 chapters of the acquis, “especially in those areas in which Scotland does not have legislative competence in its devolved Parliament… such as regulation of financial services sector, which is significant and very important to Scotland’s economy.”
Clearly, the Scottish government would have to reach an agreement with the UK government about keeping the pound. However, this blatantly goes against the accession policy of any new EU member states, since all are required to adopt the Euro. On this matter alone, what the Scottish government proposes in its white paper deviates far from precedence and the positions of the EU institutions and the UK government. In fact, it would be unwise to challenge the already established regulations of the EU and test how far the UK government is willing to go in terms of continuing to represent Scotland after its independence, especially since the UK government is and will continue to be Scotland’s biggest ally in the EU and major trading partner in the world.
In relation to the EU, one of the most immediate consequences for an independent Scotland is its allocation of the EU budget. From a financial standpoint, an independent Scotland would be worse off since it would no longer receive a part of the UK rebate and counterintuitively it will be contributing to the UK rebate like other EU member states. The difference will amount to £2.3 billion (£900 per household) extra direct cost to Scottish taxpayers. Further, since the independent Scotland would be contributing to the EU more than before and getting less in return, it would face an extra £500 million bill for its EU membership.
One of the other dire consequences would be the impact on the Scottish higher education system. The EU policy mandates its member states to apply no discrimination to students from other EU member states. The Scottish government grants its citizens free tuition, so students from other EU member states also don’t pay tuition to go to Scottish institutions. This rule no longer applies after the devolution in 1998 when “education and training” was listed as a devolved matter. As a result, only students from England, Wales and Northern Ireland currently have to pay tuition to go to Scottish universities. After independence and possibly becoming a new EU member state, however, Scotland would be mandated to stop charging tuitions for students from the rest of the UK in accordance with EU regulations. Based on the current number of students, the Scottish higher education budget would face a £150 million loss, in addition to losing major research grants from the UK government.
On September 5th, poll-tracking data showed the “Yes” Campaign took over the lead (2%) from the “Better Together” campaign for the first time. The latest poll results from September 12th ranged from a 7% “Yes” lead to 1% “No” lead. Regardless of statistical inconsistencies, the “Yes” campaign is clearly gaining momentum ahead of tomorrow’s vote, since the “don’t know” camp has decreased significantly from 12% to 6%. Tomorrow, we will know the final result in this showdown of nationalism against pragmatism.
Other Works Cited
 Scottish Government. (2013) Scotland’s Future – Your Guide to an Independent Scotland, 220  Scottish Parliament European and External Relations Committee. Official Report of Meeting, 20 February 2014, Col 1818  The Secretary of State for Scotland is a minister in the UK Government representing Scotland.  Scottish Parliament European and External Relations Committee. Official Report of Meeting, 20 March 2014, Col 1910  Scottish Parliament European and External Relations Committee. Official Report of Meeting, 20 March 2014, Col 1911  Scottish Parliament European and External Relations Committee. Official Report of Meeting, 20 March 2014, Col 1907  Scottish Government. (2013) Scotland in the European Union, 11  Scottish Parliament European and External Relations Committee. Official Report of Meeting, 20 March 2014, Col1915.  HM Government (2014). Scotland analysis: EU and international issues, 84
The views expressed by these authors do not necessarily reflect those of the Glimpse from the Globe staff, editors, or governors.