Scotland And The EU

Today, in what appears to have been a low key affair, the Scottish first minister Alex Salmond launched his government's independence blueprint, calling it a "mission statement" for the future. Yet on first reading not a great deal has changed in the Nationalist's flawed case. The same problems remain as I noted here - there's still no coherent case on the issue of currency for example:

Alex Salmond has been pilloried after unveiling a blueprint for Scottish independence that assumes the English would continue to share the UK’s ‘crown jewels’ including the pound and BBC programmes.

Today's announcement appears to have been nothing more than a rebranding exercise. Certainly on the vexed issue of whether Scotland would remain members of the EU and if they would still retain the UK opt-outs on the Euro are still in doubt. The Referendum White Paper argues:

If we vote for independence, the eyes of the world will be on Scotland as our ancient nation emerges – again – as an independent country. Scotland will become the 29th member of the European Union...

Of course, as we are well aware, it cannot be both an independent nation and a member of the EU. Those two positions are completely incompatible. But crucially what the paper doesn't address convincingly is how Scotland will remain members of the EU on the same terms as it has now.

In Scotland's favour there is a kind of precedent that echoes their potential position and that is the one of Greenland. Greenland as part of Denmark joined the then EEC in 1973, despite 70% of the Greenlandic votes having been against membership in that referendum. However when Greenland gained home rule in 1979 it still remained a full member of the EEC. It wasn’t until it had a separate referendum on leaving in 1981 that it decided to leave. Even then it still has a special relationship with the EU as part of its overseas countries and territories.

Yet the EEC has moved on and we are now post Lisbon, so there is now no real precedent for how the EU should deal with a region of a member state seceding from the European Union, a situation the white paper itself acknowledges:

Article 49 of the Treaty of the European Union provides the legal basis, and defines the procedure, for a conventional enlargement where the candidate country is seeking membership from outside the EU.

As Scotland joined the EU in 1973 this is not the starting position from which the Scottish Government will be pursuing independent EU membership. Article 49 does not appear to be the appropriate legal base on which to facilitate Scotland’s transition to full EU membership.

This though is at odds with earlier comments made by EU Commission President Barosso who is of the opinion that Scotland would have to reapply for membership:

A letter from Mr Barosso to the House of Lords economic committee, which is examining the independence question, also confirmed his position that a new independent state would "become a third country with respect to the EU".

"What I said, and it is our doctrine and it is clear since 2004 in legal terms, if one part of a country - I am not referring now to any specific one - wants to become an independent state, of course as an independent state it has to apply to the European membership according to the rules - that is obvious."

Asked whether an independent country would have to renegotiate its terms, Mr Barroso said: "Yes.".

Ploughing on regardless convinced Article 49 does not apply, the white paper argues that there would be a "continuty of effect":

We recognise that specific provisions will need to be included in the EU Treaties as part of the amendment process to ensure the principle of continuity of effect with respect to the terms and conditions of Scotland’s independent EU membership, including detailed considerations around current opt-outs, in particular the rebate, Eurozone, Justice and Home Affairs and the Schengen travel area.

So apparently all an independent Scotland has to do is pursue membership of the European Union by seeking an amendment to the EU treaties rather than applying as a new member:

The alternative to an Article 49 procedure, and a legal basis that the Scottish Government considers is appropriate to the prospective circumstances, is that Scotland’s transition to full membership is secured under the general provisions of Article 48.

Article 48 provides for a Treaty amendment to be agreed by common accord on the part of the representatives of the governments of the member states.

Article 48 is therefore a suitable legal route to facilitate the transition process, by allowing the EU Treaties to be amended through ordinary revision procedure before Scotland becomes independent, to enable it to become a member state at the point of independence.

The problem is that Salmond with his assertions of "seeking an amendments to the EU treaties" via article 48 is now entering 'David Cameron territory' with his similar claims of trying to achieve the goal of repatriating powers. Article 48 is here - it only allows the EU treaty to be amended by unanimous consent.

This then becomes a paper which assumes the UK and the EU will agree with whatever Salmond demands. Unanimous consent which requires agreement of the UK - that Scotland has voted to leave - and countries like Spain, Belgium and Italy who have their own separatist problems and would be determined not to encourage further such sentiments. One suspects therefore Salmond's chances are going to be close to zero.

It illustrates yet again the problems of an ill-prepared independence case. It's difficult to see as a consequence any other option than Scotland voting to remain members next year particularly factoring in the status quo effect. But the lessons, which are so relevant to an EU referendum, are still not being learnt south of the border.

Thus sadly those who campaign to leave the EU are currently doomed to failure.

Update: Captain Ranty is not too impressed either, expressed in his own inimitable way.