An Independent Scotland in the European Union


By Mark McNaught

The shrill and petty accusations of being a ‘bare-faced liar’ directed at Alex Salmond over his disclosure in an aggressive interview that he had sought legal advice over EU membership obscures the much larger question of Scotland’s continued membership in the EU in the event of independence.

Bolstered by Spanish foreign minister’s José Manuel Garcia-Margallo’s recent outburst, unionists have threatened that Scotland would have to “join the queue” for EU membership.

While Mr. Garcia-Margallo is presumably channelling his intense frustration over a growing independence movement in Catalonia, it is not up to him to determine the terms of Scotland’s continued membership in the EU.

There is no EU law which would automatically eject an independent Scotland and require it to reapply for membership. There is also no precedent for newly independent states, who are already part of larger EU member states, being required to start the accession process all over again. This is completely uncharted territory, and anyone who menacingly proclaims that Scotland would automatically be ejected from the EU has no legal basis for such an assertion.  

Because there is no established course, the Scottish government has an opportunity and an obligation to help chart a peaceful precedent, which would very much be in the interest of the EU. Catalonia is attempting to organise an independence referendum, with great resistance from the Spanish government.

If Belgium ultimately separates into Flanders and Wallonia, which is increasingly possible, the country encompassing the EU capital Brussels might have to renegotiate entry in the EU.  Imagine there being no mechanism for the host country of the EU parliament seamlessly continuing EU membership in the event of independence. Chaos.

The EU has an interest in clarifying this question, because these cases will not be the last: Basques, Bretons, Welsh, and other potential nations may one day peaceably negotiate for independence. In order to preserve its legitimacy and not be used as weapon in independence negotiations, the EU must develop legal mechanisms for facilitating and not impeding peaceful means to fulfil legitimate national aspirations.

There will be Scottish independence referendum in 2014. There is broad support in Scotland for remaining in the EU. All parties involved deserve complete clarity on the constitutional implications of a referendum, so an informed decision can be made. There are solutions, which presuppose cooperation between the EU, UK, and Scottish governments.

Prior to the referendum, the Scottish government should seek and the EU issue a legally binding opinion on what constitutional conditions must be met for Scotland to seamlessly continue EU membership in the event of independence. A ‘yes’ vote for independence would require Scotland to implement these conditions in a written constitution.

The EU must also answer the question as to whether the newly configured UK of England, Wales, and Northern Ireland would also be able to maintain EU membership. Would a rump UK also have to reapply, or under what conditions could they could also maintain seamless EU membership, assuming they want to?

If Scotland votes to stay in the UK in 2014, and the UK holds a referendum after 2015 on continued EU adhesion as David Cameron has suggested, and the UK votes to leave, would Scotland be obliged to leave the EU even if a majority of Scots voted to remain?

If the EU cannot clearly answer these questions in the peaceful context of a Scottish referendum, then how will they deal with the potentially much more contentious issues of Catalan and Flemish independence? Would Spain, Catalonia, Wallonia, and Flanders all have to start from scratch and renegotiate EU adhesion if votes for independence were eventually approved?  

The terms of UK membership in the EU without the Euro has proved that there are not “one size fits all” conditions to adhesion. The lack of EU precedent means that Scotland could potentially negotiate terms under which Scotland is allowed to keep the British pound as their currency, at least initially, since they are already members of the EU and use the pound.

Where they remain in the UK after 2014 following a ‘no’ vote, they could also negotiate terms to at least partially remain in the EU if the Scottish vote to, even if UK as a whole votes to withdraw. Membership in the EU has always been ad hoc to some degree, and must become increasingly so if it is to remain a viable and effective institution.

There is a blank constitutional slate for Scotland, and scope to establish peaceful meaningful precedent for fulfilling legitimate national aspirations throughout Europe. The Scottish government and the EU need to get out the chalk before the 2014 referendum if it hopes to win independence and secure a bright constitutional future.

Mark McNaught is a member of the Constitutional Commission, and Associate Professor of US civilisation at the University of Rennes 2 France, and teaches US constitutional law at Sciences-Po Paris.