Would an independent Scotland remain in the EU?
Recently, I have been trying to work my way through the arguments used against an independent Scotland leaving the UK post Brexit vote. I have found that the Unionist arguments were flimsy with regards to the previous two issues I looked into. I argued that the high amount of trade Scotland has with England is unlikely to be a serious barrier to independence. I also wrote that Scotland would not need to join the Euro if we were to remain in the EU.
However, would we be able to remain in the EU at all?
With regards to this question the water is murkier and we probably need to be clear about this when presenting the argument next time. In the first indyref, even though we often may have been correct, to many we came across as dreamers not in touch with the reality of the situation. It is clear than in the event of Scottish independence the most pragmatic solution would be for Scotland to stay in the EU, however, in reality we just don’t know what will happen. It is this lack of power that we have over the fate of the nation that is a more powerful argument for independence than the exact route we will take to be a part of the EU. The uncertain situation Scotland finds itself in, as well as the inability we have to deal with the uncertainty, is directly related to our lack of political control.
The reason we don’t know what is going to happen is that there is absolutely no provision in EU law for what should occur if a member state splits up. During the first independence referendum there were two main strains of opinion and both of these were problematic. The current political situation in the UK has actually offered a third option which could be a more practical route if it were used.
The two previous options are still available. In 2014 the Scottish Government argued that we would be able to use article 48 of the treaties of the European Union. This option would essentially mean changing the treaties to allow a newly independent Scotland to be a member in light of the exceptional circumstances. In practical terms this fast-track option was a good idea as Scotland is so intertwined with Europe that there would be mass disruption and chaos should it overnight cease to be an EU state on the day of independence. However, the main problem with the plan is that it threw up a bit of a paradox. Scotland would want to become an EU state on the day of its independence, but Scotland could not negotiate its membership unless it was a state and it could not be a state until it is independent. The only way it could work is if the UK negotiated with the EU on our behalf and that was never going to be something that was going to be on the table while the UK was fighting to keep Scotland. Several legal experts have recently argued this process would be used to fast-track an independent Scotland’s membership. They argue that it is almost certain this would happen under EU law.
In 2014 the other option was to use the normal article 49 process and reapply to join the EU once we became independent. As Scotland meets the criteria to be an EU state then this option would certainly work but would take up to five years to complete so would lead to a period of limbo which would damage both sides. It is fair to say that this is the only certain way we could join and we should be honest about this when we make our arguments. The recent fallout from the EU vote helps here as no longer does the UK government have certainty on its side. Unlike in 2014 we wouldn’t be choosing to leave the security of an EU state in order to reapply as the UK is leaving anyway on its own volition. We would be swapping one uncertain situation for another and gaining a lot more control over plotting a course through that uncertainty.
The new option that is available is for the UK to negotiate for Scotland(and Northern Island and Gibraltar) to remain as part of the Article 50 process. Some would say that just like in 2014 this could never happen as the UK isn’t going to negotiate its own destruction. However, things are now balanced a bit more in Scotland’s favour. For one, there is now a lot of sympathy for the plight of Scotland in Europe, so negotiators from the EU side may be willing to push our agenda if we become independent in the article 50 period. Furthermore, many legal experts contend that under the Scotland act 1998, Scotland may hold a veto or is at least able to delay with legal action the article 50 process. Therefore, Scotland does hold some negotiating chips in any situation article 50 is invoked.
The situation is made more convoluted as we don’t know what relationship the rest of the UK intends to have with the EU after the Brexit negotiations conclude. This self inflicted quagmire the country finds itself in highlights exactly why we need to have control over our own affairs. On one hand we are being removed from the EU after we voted to remain and due to the imbalanced nature of the UK we will have little control over the direction we take. On the other hand, as we are not a recognised state we don’t have the power to negotiate directly with the EU in order to take control over our own future. As always we are reliant on the kindness of others or at least the pragmatic interests of others aligning with our own.
The key argument for independence should not be that we will be better off out of the UK but that we will have the potential to shape a country that could be better off.
Although the Realpolitik solution would be for Scotland to remain in the EU we can only say for certain that we could apply to rejoin the EU post independence. The delay this situation may cause would be a gross failure of diplomacy and would needlessly inflict much pain on countless EU citizens; the plus side would be that an application to rejoin the EU would be among the first fledgling steps of a nation that has gained the confidence to take responsibility for its own affairs.
Here are are some other EU blogs we have done:
Would we have to adopt the Euro?
Why we don’t mind staying in the EU but want out of the UK?
Is there and EU queue?
Could we remain in the EU?
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