What Salmond should know about Scotland and the EU

Written by: David Clark on 25 October, 2012
Filed under Democracy

Alex Salmond has now asked the Scottish Government’s legal advisers for an opinion on the implications of independence for Scotland’s membership of the European Union. He really ought to have done so before he started claiming with such certainty that an independent Scotland would continue to enjoy all the benefits of EU membership it currently enjoys as part of the UK.

I can probably save him some time. Robin Cook asked the Foreign Office’s legal advisers for their opinion on the status of an independent Scotland in the EU back in 1999 when I worked as his Special Adviser. Three conclusions stood out in the advice that came back.

First, there is no existing procedure for handling a breakaway from an EU member state. The Council of Ministers would therefore need to improvise one according to its own design.

Second, an independent Scotland could either be considered a successor state, inheriting the United Kingdom’s rights and status, or a new applicant, but would have no automatic right to the former. A political decision would have to be taken by the Council of Ministers acting unanimously.

Third, even if Scotland was granted the status of a successor state, there would still have to be extensive negotiations to disentangle Scotland’s legal and financial obligations from those of the United Kingdom. There would be no certainty that Scotland would get a good deal out of those negotiations given that it would be UK rather than Scottish ministers sitting in the relevant EU decision-making bodies.

What emerges from this is that the real determining factors are political rather than legal. The status and rights of an independent Scotland in relation to the EU would be decided by a body comprised of twenty-seven countries (possibly more by the time it happens), any one of which might use its veto to block the process in pursuit of its own national interests and to the detriment of Scotland’s.

I personally have no doubt that Scotland would be allowed to join the EU. But I also have no doubt that the price would be a high one. Spain would be the first country to object to Scotland automatically inheriting the UK’s rights and status. It would be determined to prove that separatism doesn’t pay in order to deter its own secessionist movements in Catalonia and the Basque country. Other countries, similarly concerned to avoid any precedent that might compromise their own integrity, would be certain to support the Spanish position.

They would also be joined by a larger group of countries that have long resented the UK’s opt outs and budget rebate and would relish the opportunity to deny them to Scotland. Like a new applicant, they would insist on Scotland accepting the full range of EU obligations on things like the single currency, border controls and budget contributions.

The negotiations needed to sort this all out would be hopelessly unbalanced for the simple reason that, on size alone, EU is vastly more important to Scotland than Scotland is to the EU. Scotland’s bargaining position would be further weakened by the fact that it would be negotiating as the demandeur, to use diplomatic parlance. In other words, it would be asking other countries to accept a major change without the leverage to offer or withhold anything in return. Countries in that position are always expected to make major concessions.

It all comes down to diplomacy and politics. The SNP’s position makes wholly unrealistic assumptions about Scotland’s negotiating strength and what our European partners would be willing to concede. They rely on the EU treating Scotland and the rest of the UK equally in the event of separation, when everything points to the opposite conclusion. England, Wales and Northern Ireland would certainly be treated as the ‘continuing United Kingdom’ simply by virtue of their representative continuing to sit in the Council of Ministers with a veto over the whole process. Scotland, by contrast, would depend on the kindness of strangers.

There is an interesting precedent for all of this. When the Soviet Union broke up Russia was universally recognised as its successor, entitled to keep its permanent seat on the UN Security Council. At almost the same time the bid by Serbia and Montenegro to be recognised as the successor to Yugoslavia was rejected and they were forced to re-apply for UN membership. One major reason was that Russia retained a large nuclear arsenal and western countries were anxious to maintain the arms control treaties patiently negotiated during the Cold War. Ukraine, Belarus and Kazakhstan arguably got favourable treatment for the same reason.

The irony is that if Alex Salmond wants to improve his chances of getting an independent Scotland recognised as a successor state to the United Kingdom, with all the rights that follow, the one thing he should probably do is keep his hands on Trident. Funny old world, isn’t it?