There could be a situation in which the ‘Rest of the United Kingdom’ is engaged in withdrawing from the European Union while Scotland is still seeking to join the EU. The labyrinthine road ahead looks perilous for the Scots nationalists – writes our secret columnist in Brussels Schadenfreude
Shakespeare’s answer in Macbeth was: “Alas, poor country”. The nationalist Scottish Government would agree. It has published a substantial account of the reasons for and effects of Scottish independence from the British Union.
It cites a doctrine of ‘continuity of effect’. This describes a situation in which after some power or provision has expired its effects continue. For example, by use and wont. It has no bearing whatsoever on the question of Scottish independence. The Scottish Government is looking for seamless continuity of membership of the European Union.
The blueprint sets out how Scotland will continue to belong to the EU after it has become independent from the United Kingdom – which will be the United Kingdom of England, Wales and Northern Ireland. If the 2014 referendum records a ‘yes’ majority Scotland will, it is planned, become independent two years later. In the interim period, Scotland will remain within the UK and the Scottish Government will carry through the various arrangements that will be needed post-independence.
After a ‘yes’ vote in 2014 on independence, Scotland would apply to the EU for continuing membership. The application would be made independently of the UK. It is assumed that the UK Government would allow a separate Scottish delegation to use its facilities in the presentation of its application. This implies that Scottish representatives will be part of but not under the control of the UK Permanent Representation on Brussels, and that Scottish ministers will join and speak from the UK chairmanship at European Council meetings – at which the Scottish application is discussed.
The application will be subject to ‘screening’ conducted by the European Commission, covering 30 chapters on different subjects. Scotland will have no difficulty with almost all of the questions raised. The only fuller discussions will be of the two derogations that the blueprint asks for. There may be more to come though.
It is a treaty obligation to join the eurozone, if a member state satisfies the conditions of membership. Scotland wants a derogation and will have to explain why. Its principal reason is that it wishes to belong to a currency union with the rest of the UK – assuming that the latter agrees. Scotland will have to explain why its preference for a currency union with another member state should override the currency union in the treaty.
Scotland does not want to belong to the travel area of the Schengen Agreement. Like the UK and Denmark, it will need another derogation from the Lisbon treaty provisions on free travel, which Schengen codifies. Without such a derogation there would have to be a new Hadrian’s Wall for border control.
During the period in which the Scottish Government is pressing its application, the UK Government is expected to be pursuing its quest for a ‘new settlement’ with the EU. If the outcome takes the form of new arrangements for UK membership, effective before Scotland’s membership application has been approved, the Scottish Government will have to consider whether it wishes to benefit from all or some of the new arrangements; and amend its application accordingly.
The United Kingdom Government may hold a referendum on its membership of the EU in 2017. On the timetable envisaged by the Scottish Government, Scotland would by then be independent – from 2016 onwards. There could be a situation in which the ‘Rest of UK’ is engaged in withdrawing from the EU while Scotland is still seeking to join. The timing is crucial. If Scottish membership negotiations are concluded, they will be confirmed in a treaty of accession. The treaty needs the approval of the European Parliament and ratification by all 28 member states.
In Belgium, ratification is required by nine parliamentary bodies. The assumption is that the federal government – and ditto Spain – will have overcome its dislike of regional separatism. Bulgaria, Romania, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland, Germany, Italy, Latvia, Lithuania, Netherlands, Poland, Portugal, Slovakia, Spain, Sweden and the UK require an affirmative parliamentary vote. This takes time to collect. France has the choice between a referendum and a parliamentary vote – probably the latter.
The Scots need another Macbeth quote me thinks: “If you can look into the seeds of time and say which seed will grow and which will not, speak then to me, who neither beg nor fear your favours nor your hate.”