The Puzzle of Scottish Independence and EU Membership

The possibility of an independent Scotland and its consequent European Union (EU) membership holds a plethora of issues and ambiguities left to be clarified. The issue at hand is that the Treaty of the European Union does not address how, or if, a region of a current member could obtain membership, if that region becomes independent. The impending ‘Brexit’ further complicates this matter. This grey area of potential membership is increasing the demand for clarification regarding membership acquisition in light of the ‘Brexit’ and the growing instability of the European Union.  The potential secession of Scotland from the United Kingdom (UK) and entrance into EU membership poses a multitude of issues: defining the type of relationship an independent Scotland would have with the EU, what the process would be to become a member and how the process would manifest, and how the ‘Brexit’ affects Scotland’s want for membership.

There are contentious debates surrounding the Scottish need for departure from the UK and its subsequent reapplication to the EU. Some experts assert that an independent Scotland would only need to ratify a number of treaties to be a full EU member, while others state that Scotland would become a “third country” (a non-EU member) and thus would be immediately expelled from the EU.

Each theory has its discrepancies, and no one method has been defined as the clear course with which an independent Scotland should proceed. Furthermore, Scotland’s role in the EU will also be reintroduced within the context of the ‘Brexit.’ The outcome of the 2014 Scottish independence referendum was largely affected by the Europhile sentiments of the region and its desire to retain its EU role; thus, the ‘Brexit’ could trigger another referendum on independence that could result in Scotland preferring the EU to the UK. The EU-Scotland relationship needs to be defined, with a process for enacting that relationship decided upon, in order to present a clear future including EU membership to the Scottish people. By defining and asserting a clear path for Scotland, the EU can preemptively avoid any future issues such as drawn out negotiations or shocks to the EU economy.

Scotland’s want for independence is politically and economically based. The country, which has been ruled by the UK parliament since 1707, came under UK rule during a time of economic need, when insufficient supplies and catastrophic illness crippled the country. However, Scotland has matured in the modern age and is no longer in need of an economic system rooted in regional co-dependence. One of the primary arguments for secession is that Scots would gain political sovereignty (a wish that was only partially met by the creation of the Scottish Parliament in 1998. This furthered sovereignty would also have economic benefits, with increased economic freedom from UK obligations. However, both Scotland’s current political and economic standings are dependent on its membership in the EU. Scotland wishes to be politically independent in order to represent itself both to the world and to the EU specifically. With individual membership, Scotland would gain its own vote in EU matters; currently, the United Kingdom has a vote in EU matter, which represents the whole of the UK. In becoming an individual member, Scotland would be able to vote along the lines of its own interests and not merely be represented by the UK. Furthermore, economic independence would retain Scotland’s current dealings, while opening the economy per the wishes of the Scottish people. Thus, the question at hand is whether or not an independent Scotland could be a EU member in order to gain politically and economically.

The grey area surrounding an independent Scotland’s EU membership originates in the Treaty of the European Union (TEU). When the treaty was written, it had not been anticipated that a region of a Member State would attempt to secede, and thus the treaty has not identified the process concerning regions that have seceded from Member States. This means that, while there is a process in place for a member state to leave the EU, there is not one that specifically addresses a region such as Scotland. Thus, there is no predetermined legal process for Scotland that addresses what it would mean to secede from an EU member state. One viewpoint is that Scotland, by seceding from the United Kingdom, is exiting the EU. This is the opinion of former presidents of the European Commission, Prodi and Barroso, who described Scotland’s secession as an immediate withdrawal from the EU. This, however, is not economically or legally feasible because Scotland is economically intertwined with the EU, and Scots are currently EU citizens. An overnight expulsion of Scotland from the EU would devastate its economy as it is reliant on EU free trade — three of Scotland’s top five export partners are EU members. Member States are also entangled with the Scottish market, as they too gain from Scottish imports such as petroleum and chemical products. An expulsion of Scotland would manifest in the form of duties on its exports and imports, as well as the potential creation of export quotas for goods going into the EU. These restrictions would stress Scotland’s economy and potentially create barriers for EU countries seeking Scottish goods. Furthermore, Scots are EU citizens and to strip them of their citizenship overnight would be a harsh act that would leave many abroad without the freedom to cross borders, or at schools they can no longer afford. In addition to these entanglements, an immediate expulsion of Scotland would disregard the EU principle of sincere cooperation, diminishing Scotland’s right to the democratic process and the principle of continuity of effect. At any length, it appears that if an independent Scotland were to be considered a third country (non-member state) to the EU, it would be necessary to invoke Article 50 of the Treaty. Even if the EU considers the British exit to be Scotland’s exit from the EU, the exit itself would have to be negotiated over a two-year period to finalize all aspects of former EU dealings. However, a radically different view of Scotland has also been proposed.

The Scottish government, prior to the election, stated that an independent Scotland would be able to “take its place as a full Member State within the European Union”. This wording assumes Scotland’s current role in the EU as partial membership; it acknowledges Scotland’s role in the EU while recognizing that it soon will not be a member state. The government has elaborated on this matter by stating that, following a vote for independence, Scotland would enter negotiations with both the UK and the EU to ensure a smooth transition into independent EU membership. This method of negotiation is corroborated by a number of experts that define Scotland as a non-member actor in the EU. However, this relation to the EU, and the process as previously defined by the Scottish government, is dependent on the UK’s role as a member state.

The situation in Scotland was made more complex by the ‘Brexit’ vote. Many people have incorrectly assumed that the ‘Brexit’ would simply incite another Scottish referendum because of Scotland’s Europhile tendencies; however, Scotland’s plan, as stated in a government white paper, Scotland’s Future, is dependent on the UK as a member state. In the proposal for an independent Scotland, potential EU membership is defined as full membership, but with certain opt outs such as abstaining from certain EU norms that the UK currently abstains from. Specifically, Scotland will not pursue an entrance to the Eurozone or the Schengen Area, opting instead to continue using the pound and to keep its current Common Travel Area with the UK, The Republic of Ireland, Channel Islands, and Isle of Man. These two opt outs are radically affect by the ‘Brexit.’ Scotland now faces more questions concerning its potential EU membership including whether or not Scotland can mimic the Republic of Ireland’s opt out of the Schengen Area, and keep an open border with the UK, regardless of the Schengen’s external border resolution. The other, and more complicated, issue of currency will also need to be resolved. While Scotland has stated that it intends on continuing its use of the pound, it is questionable that as non-member the UK would allow its currency to be used by a separate country that willingly removed itself from UK jurisdiction. This topic has no precedent and would need to be determined by the UK Parliament. In addition to these technical conflicts, Brussels has ruled out the possibility of Scotland remaining in the EU while Britain leaves. The European Commission came to this conclusion in late June, with the intention of relaying that an independent Scotland would need to reapply for membership regardless of the timing of independence, since it will be a post-Brexit vote. However, this declaration too has loopholes and leaves Scotland’s future with more questions. It has been speculated that Scotland could follow in Greenland’s footsteps from 1982 when Greenland itself broke away from the EU, but its residents (Danish residents) and Denmark itself remained in the EU. In this situation, Scotland (which has voted to remain in the EU and predominantly voted against the Brexit) could use this precedent loophole to retain EU benefits that it has desperately been pursuing.

Scotland’s future is facing many contradictions in terms of its participation in the EU. Scholars and politicians cannot agree on the terms of a Scottish claim to EU membership or the process by which an independent Scotland could attain membership. The Brexit has further complicated the matter by forcefully beginning Scotland’s unwanted exit from the EU and the single market in particular. Indeed there is no clear path for Scotland at this time. The only clear aspect of this grey area is that Scotland wants EU membership and has proved so time and time again. It is a key player in, and depends on, the EU single market, and is prepared to fully add to the system by commissioning a full vote. Should Scotland have the opportunity to be a full EU member, it would do so whole-heartedly.