Douglas-Scott, Sionaidh

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Scotland and the EU: Eleventh hourthoughts on a contested subjectSionaidh Douglas-Scott 2014-09-17T08:19:18Is the ‘spectre of disintegration’ haunting Europe? Joseph Weiler fears that it is,and that, were an independent Scotland to be admitted as an EU state, this wouldlead to a domino effect whereby others would demand independence within theEU – testimony of an atavistic, retrogressive mentality, and adverse to the EU’sraison d’etre. This is a strongly put view, and not all will agree with it. Nonetheless,most of the papers in this highly stimulating symposium address, albeit in verydifferent ways, the concern that lies at the base of Weiler’s argument – namely, thecharacter of the EU, the nature of its values, its very reason for being. They alsoaddress the more workaday, but nonetheless critical, legal and practical issues thatan independent Scotland’s membership pose.The EU and its valuesIndeed, this debate has prompted some necessary, timely and diverse reflectionson the nature of the EU, and what it stands for. The treaty of Lisbon inserted astatement of values into EU law for the first time, but if this is to be anything otherthan a mere puff, then it should provide guidance for the EU in its actions, and alsoan indication of what the EU is about. It ought to have some practical resonance,but it must also be meaningful – to use a well-worn phrase, it should capture heartsand minds. But hearts and minds appear to be captured in different ways. Weilerargues that, ‘In seeking separation Scotland would be betraying the very ideals ofsolidarity and human integration for which Europe stands’, suggesting that it is thisvery demand for independence that should disqualify Scotland from the EU. Butthen what sort of EU would it be, that disqualified a country from membership formaking a democratic and legitimate choice of independence? Would it be compatiblewith the EU’s own respect and promotion of democracy if it denied Scotland’s EUmembership on this basis?Weiler finds the desire for Scottish independence to be an ‘irredentist form of eurotribalism’ incompatible with the ethos of a EU identity based on multinationalismand solidarity with other peoples. Yet it is hard to place Scotland, or indeed someother cases of 21st century secession movements, in the mould of nationalism andtribalism. Such movements reveal a lack of essentialist thinking, and focus insteadon a democracy that the EU itself shares. This is not the ‘Braveheart’ caricature ofnationalism that the media sometimes like to portray. As Nicolaidis suggests, thedemoi-cratic spirit of the EU may actually be enhanced by amicable divorce.There are other ways of understanding the desire for independence than as anationalist impulse to disintegration and economic self-interest, fuelled by a ‘what’sin it for us’ mentality. An alternative is to notice the ways in which the desire for self-- 1 -governance is linked to decentralization, localism, but also interconnectedness,and subsidiarity – another principle that looms large in the EU treaties. Kochenovargues that the values on which the EU is founded are precisely those intended todisrupt the post Great War tribalist mentality, but this does not mean that they mustbe unfriendly to self-determination movements. The Scots are seeking to escapethe sovereignty of the UK Government, but, as Neil Walker argues, the EU itselfchanges the significance of national sovereignty, recasting it as something lessabsolute, something sometimes pooled, voluntarily ceded for principled reasons. Therejection of membership of one union (the UK) need not be inimical to participationin another (the EU). The existence of the EU recasts and reforms traditional ideas ofsovereignty and belonging into something more impalpable.However, as Closa reminds us, important though democracy is for the EU, it isonly one of the values expressed in Art 2 TEU. It is not an absolute value and heinsists it should not be expressed in a way detrimental to other values such as therule of law. Nor should one country’s democratic transfer to independence withinthe EU be at the expense of other member states’ rights, nor threaten the integrityof the EU’s lawful procedures. Closa cites Hungary as an example of a countryin which democratically mandated actions threatened the rule of law. But in whatway are other values and legal processes compromised by Scotland’s desire forindependence? Perhaps the worry is that some sort of special case might be madefor Scotland, that Treaty procedures will not be followed – a sort of favouritism ofScotland at the expense of other member states. (Set aside the fact that the EU isa creature of negotiation, and special pleadings, tradeoffs and deals are very muchpart of its modus operandi.) In response to Closa, I would argue that the continueddiscussion as to whether Art 48 or 49 TEU should be at issue reveal a concern withlawfulness and a determination to ensure actions can be made to conform with treatyprocedures.Questions legal and practicalThis leads on to the other broad area of discussion within this symposium –arguments of a legal or practical nature – taken up by Piet Eeckhout, Bruno de Witte,Christophe Hillion and Jo Murkens – for example, the issue of the treaty route intoScottish membership, or its exact terms.Should we worry whether Art 48 rather than Art 49 will govern the proceedings, ifScotland becomes independent? There is no ‘right answer’ clearly deducible fromthe treaties. Nonetheless, it is surely pertinent that Scotland is simply not in thesame position as an applicant that has never been a member of the EU. The Art49 process is premised on outsider status, a starting from scratch, appropriate inthe case of countries such as Romania and Bulgaria, which had until recently beensubject to very different economic conditions, and needed to demonstrate that theycould satisfy the conditions of EU membership. Scotland does not have to do this,having been within the EU for over 40 years.However, another reason given by Murkens for preferring Art 49, is that underArt 48, the formal application for treaty amendment would have to be made by- 2 -the UK government (which would be the official member state until Scotlandformally achieves independence) and there is a risk of the UK government hijackingthis process, having reasons of its own to slow things down, perhaps using it torenegotiate its own membership with the EU, as Cameron has been desirous ofdoing. However, if the UK were to act in this way it would breach s30 Edinburghagreement, which requires that ‘the two governments are committed to continue towork together constructively in the light of the outcome, whatever it is, in the bestinterests of the people of Scotland and of the rest of the United Kingdom.’ Also,we might ask why the UK would wish to prolong and problematize an independentScotland’s membership – UK companies, students, workers and citizens generallywould pay a heavy price for such disruption.But in reality, one should not be too bogged down by the question of whetherArt 48 or Art 49 applies. The EU has for all its history functioned in the context ofnegotiations and pragmatic solutions. As Piet Eeckhout persuasively argues, it ishighly possible that, ‘a slightly creative reading of Art 49 would enable a soon-to-beindependent Scottish State to make a membership application.’ Both Tierney andKeating make a persuasive argument that the Quebec Secession case illustrateshow the democratic reading of a constitution (in that case the Canadian constitution)may, even in the absence of a clear legal imperative, give rise to a duty to negotiate,and suggest that, by analogy, a similar obligation may be inferred in the case ofthe EU, especially given that the principle of democracy, along with citizenship, areexpress EU constitutional commitments.RealpolitikSome responses, forceful and heated in their identification of pitfalls and problemsfor independent membership, aim to contribute a cold shower of realpolitik. Inparticular, the term ‘seamless transition’ appears to have enraged some, becominga term of derision. But ‘seamless transition’ is not an expression I have ever used,although it may have figured in some of the Scottish Government’s materials onthis subject. Treaty amendments and negotiations there will have to be, but noneof them I believe fatal to the enjoyment of acquired rights of EU citizens (Scottishor otherwise, and, contra Weiler, I do not believe that Scots are likely to lose theirstatus as EU citizens, as the UK government has made no explicit statement that itwill strip them of UK nationality).Murkens argues that I fail to acknowledge the current political context in which‘Germany, France, Italy, and Spain can have no interest in witnessing the diminutionof the UK and in setting a precedent for other European secessionist movements’,noting that ‘Spain, Slovakia, Romania, Greece, Cyprus did not recognise Kosovo’sunilateral declaration of independence in 2008 in order not to set a precedent forseparatists in their own countries.’ A comparison with Kosovo was also made byBarroso in his now infamous comments about Scottish EU membership. It is anirrelevant and unfortunate comparison. The Edinburgh Agreement states that areferendum will ‘deliver a fair test and a decisive expression of the views of peoplein Scotland and a result that everyone will respect.’ Any decision by the Scots on- 3 -independence will possess a legitimacy that it would be impossible for the EU toignore.The key point here is that an independent Scotland would be the result ofa legitimate referendum process secured with the full agreement of the UKgovernment and fully constitutional. It is not remotely comparable to a unilateraldeclaration of independence. No EU member government has yet stated that theywill veto Scottish membership. Indeed, the consequences of so doing could be veryunpalatable – nationals of other EU member states have directly enforceable EUlaw rights in Scotland. If Scotland’s membership were automatically terminated theywould become illegal immigrants, find their students charged much higher universityfees at Scottish Universities, and lose access to valuable resources such as fishingrights in Scottish waters. Therefore, although a Hobbesian view of the EU mightdictate a vision of self-interested member states vetoing Scotland’s membership,both principled reasons (the legitimacy of the independence process) and practicalreasons (disadvantages of suspension of Scottish membership) argue against abumpy process whereby Scotland’s membership is vetoed.Some contributions raise concerns that that an independent Scotland would notbe fully compliant with the EU acquis. But Scotland has been a member of the EUfor 40 years. Is it really likely that Scotland cannot, in its own right, ensure stabilityof institutions guaranteeing democracy, rule of law, human rights and respect forand protection of minorities (key values of EU law, which are also to be found inthe Copenhagen criteria for membership of new member states)? If East Germanyand Bulgaria and Romania could be absorbed into the EU despite huge structuraldifferences, would an independent Scotland be denied membership on accountof lack of economic convergence? To argue otherwise would be to discriminateagainst Scotland. It is true that it has thus far complied with the acquis as a memberof the UK, rather than as independent country, but how significant a distinction isthis? De Witte notes that there are still matters to be settled, for example who willrepresent Scotland in the EU’s various institutions and working groups. These maybe sometimes taxing issues, but surely not insurmountable.The acquis argument really boils down to the position an independent Scotlandwould take on a small number of specific opt-outs which the UK has negotiated, suchas opt outs from the euro, Schengen and the UK budget rebate. While these are notsimple issues, they are not intractable. Space prevents a detailed discussion here,however, so I give just one necessarily brief example.For example, take the case of Schengen. Would Scotland have to sign up to theSchengen agreement as is required of new member states, notwithstanding the opt-out it currently enjoys as part of the UK? Given that Protocol 20 expressly recognizesthe particular circumstances of the Common Travel Area between the UK andIreland, it seems unlikely that Scotland’s special relationship with rUK and Irelandwould be denied by a mandatory imposition of Schengen rules. Indeed, if Scotlandwished to adopt Schengen, this would be far more complicated than remaining withinthe CTA, and it is unlikely that the EU would accede to such a request immediatelyon Scottish independence.- 4 -Enthusiastic, engaged or eurosceptic?Lastly, Murkens faults me for ‘provid(ing) no answer to the question as to what kindof member an independent Scotland would be’. I feel this is a bit unfair, as the statedpurpose of my paper was to consider what the EU position on Scottish membershipshould be, and to rebut arguments of those EU officials who had taken a negativeposition on the subject. To have then taken on board this very large subject wouldhave led to a different and very long paper indeed!However, I believe we can be confident that an independent Scotland’s attitudeto the EU would be more positive than that of the current UK government. AlexSalmond stated in the College of Europe in Bruges 2014, (and reiterated morerecently) that ‘an independent Scotland would be an enthusiastic, engaged andcommitted contributor to European progress’. UKIP support was much lower inScotland at the 2014 EU Parliament elections than in English constituencies. Isthere any reason to believe that Scotland would perpetuate the fractious relationshipthat the UK has recently maintained with the EU? Michael Keating has arguedpersuasively that Scotland, as a small state in the EU, could enjoy a positiverelationship with the EU, and I find much that is attractive in his arguments.In conclusion, I believe that we should not overestimate the obstacles that a newlyindependent Scotland would face in securing EU membership in its own right.Yes, there would be a need for negotiation, but the history of the EU as well asits (necessarily) pragmatic bent, should enable these negotiations to be carriedout without a suspension of Scotland’s membership. The obstacles that othermember states, acting in self-interest, might raise should also not be overstated. EUmembership should not become another element in a politics of fear.In a couple of days we will know exactly how pressing and actual these issues are.But the Scottish example forces us to confront squarely the question of what is this‘unidentified political object’, the EU. May this debate continue!- 5 -

Scotland and the EU: Eleventh hour thoughts on a contested subject

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Scotland and the EU: Eleventh hour thoughts on a contested subject

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