“Yes to the UK” is a blog dedicated to keeping the United Kingdom of Great Britain and Northern Ireland together, ”run by a passionate (Scottish) unionist as a forum for presenting the case for Union. It is intended to highlight the many benefits of continued unity and to highlight the many flaws in the separatist argument.
This a cross-post of an article examining further the impact of EU law on the debate surrounding Scottish membership of the European Union in the case of Scotland separating from the rest of the UK.
The European Union – and Scotland’s status in relation to it – has proven to be fertile ground in the constitutional debate so far. It’s a controversial issue, with different opinions as to the legalities and implications, not to mention different opinions as to the preferred outcome.
As with most other areas of debate in which there is a danger of alarming the electorate, separatists and their SNP spokespeople assure us that everything would be fine. They are determined that Scotland WILL retain membership automatically, under the terms presently in place on the UK. As I noted in an earlier post, though, this would appear to be highly unlikely given the legal and political implications of a division of the UK.
Unionists are quick to highlight this misleading overoptimism that their opponents are peddling, although in the interest of fairness I will admit to the tendency among some to be as overdramatic as separatists are overconfident. Some, for example, proclaim that Scotland would automatically be unceremoniously ejected from the EU should the people plump for a break up. This would seem just as unlikely as an unconditional welcome.
In truth, it seems certain that there would be no “automatic” consequences of Scottish separation in the EU context. All would depend on negotiations.
During my last Lies post, I discussed this at some length, from an international law and politics standpoint. Since then, though, I have gone on to find some interesting information around the EU legal context which similarly torpedoes claims of “automatic” consequences.
However, there is another aspect of separatist subterfuge with regard to the EU that I want to deal with – namely, the oft-uttered argument that a British unionist is nothing less than a hypocrite if he or she is at the same time a Eurosceptic. I will briefly consider this misrepresentation first, before going on to discuss the EU law implications of dividing the UK.
British Unionism and Euroscepticism
One of the most common accusations levelled against unionists in relation to the EU is the point that, if we truly believe that we’re “better together”, surely the logic should extend to Europe? This is an attempt to undermine the logic of the pro-UK argument, given that a good many people in the UK (including many “britainists”) are opposed to European integration.
It must be acknowledged that separatists do have something of a point. If one claims to subscribe to unionism as an ideology, it follows that we should support any form of increased unity.
The defence against this point, however, is a simple one. Ideologically speaking, European unity is indeed preferable to dozens of separate European states. However, as becomes clearer every day, European unity is not sustainable. Reality intrudes on the ideology, and forces even the most pro-Union of unionists to accept that the EU, at least as it is at the moment, cannot work in practice. This is due to any number of flaws in its design and composition.
Most member states, for instance, don’t even share a primary language, never mind a common sense of culture and society.
Economically, member states are similarly varied (as the ongoing saga of the Eurozone demonstrates).
Democratically, the EU involves legislation proposed by the entirely appointed and technocratic European Commission, who are in no way accountable to the European electorate.
I could go on, but even this short list throws up a number of difficulties in successfully maintaining a union.
Of course, the differences listed are among the things separatists themselves suggest exist as problems within the British Union. However, as I have pointed out before (e.g. here and here), getting this argument to fly relies on them persuading Scots that Scotland and rUK are as different as Germany and Greece. Good luck with that is all I can say.
As a last point, I will highlight the heavy irony in their attempts to brand us hypocrites over this. To do so, after all, they must also recognise the hypocrisy in themselves – is it not just as hypocritical for someone peddling a separatist ideology to advocate dividing one union in favour of joining another? Especially one that could potentially erode Scotland’s “freedom” even more than under the current arrangement.
European Law and Separation
Having dealt with that little separatist ploy, we can consider the ever-growing weight of legal evidence to suggest the SNP are either wrong or deliberately lying about the implications of Scottish separation on EU membership.
The EU today is notably quiet on the issue of the potential division of a member state. More than likely, this is because they don’t want to appear to be interfering in the internal politics of a member state. However, there are a number of communiques from them that we can consider.
First, we have the following comments made by the European Commission in 2004:
“When a part of the territory of a Member State ceases to be a part of that state, e.g. because that territory becomes an independent state, the treaties will no longer apply to that territory. In other words, a newly independent region would, by the fact of its independence, become a third country with respect to the Union and the treaties would, from the day of its independence, not apply anymore on its territory.”
These comments were made in response to a question asking about the potential secession of part of a member state. The original question also makes reference to the precedent set by Algeria, which was a member of the European Communities (predecessor of the EU) as part of France, but left the EC upon its independence.
Another argument, advanced by the European Commission, was made in relation to Catalonia in Spain as recently as May 2012. In that case, a Catalonian separatist organisation asked the Commission to clarify whether or not the people of a newly-separate part of a member state would continue to be EU citizens. The EC response (translation from Google Translate is attached at the bottom of this post) was to note that only citizens of member states are citizens of the EU, appearing to imply that EU citizenship would not necessarily be guaranteed. Indeed, the response went on to argue that a solution to such a situation would need to be negotiated.
Another paper in relation to the Catalonian cause – and apparently written from a position of support of it – noted on page 40 that there was NO certain route in EU law (contrary to the SNP’s claims), before going on to suggest that “…automatic continuity would not allow the conditions of permanence of the new state in the European Union to be modulated, for the state would have the same rights and obligations as its predecessor, which would cause institutional problems in the European Union and might have negative consequences both for the European Union and for the new state…” (p42). The authors go on to suggest that “succession in membership” – which they say “…does not occur automatically and requires a “notification of succession” and in some cases has also required the fulfilment of certain conditions and a formal decision of the organisation” (p40) – would be the most likely route. This, say the authors, “…would allow a reply to be given to the situation created by the secession or dissolution of a member state and would also guarantee the continuity of the rights and duties derived from the application of European Union law. This situation will also be respectful of the defence of the democratic principles postulated by the Union” (p42).
Yet another paper, this one specifically about Scottish separation, is similarly sceptical of the SNP’s claims. In discussing the EU law implications, the author notes that a number of treaties need to be changed in order to alter the membership situation, “…because those treaties specifically refer to the member-states of the European Union. Under the Treaty of Rome, the accession of another state to the EU would necessitate, inter alia, the amendment of the provisions specifying the number of representatives in the European parliament elected in each member-state; the number of weighted votes held by each member-state when the Council is required to act by a qualified majority; the number of members of the Commission; and the numbers of judges of the Court of Justice, of members of the Court of Auditors, of members of the Economic and Social Committee and the Committee of the Regions from each member-state.”
These are notwithstanding the points made in the last Lies post around international law and politics.
In any case, what is abundantly clear is that a great majority of experts and authorities – up to and including the European Commission – do not support the SNP’s claim that Scottish membership of the EU would automatically continue on the current terms.
It’s important to note again that the argument here is NOT that Scotland wouldn’t get in to the EU. Instead, the argument is simply that negotiations would be necessary; negotiations that could involve some very unpopular and expensive concessions from Edinburgh (as the author here notes at the end of his paper).
Of course, confronted with this argument, some separatists may well be unconcerned, citing their desire to leave the EU anyway. This is one solution, but not one I would advocate; as much as there are MANY problems with the EU, it isn’t necessarily the case that getting out would improve matters. To explain this, it is perhaps easiest to think of the EU as a runaway train – jumping off is every bit as likely to kill you as staying on until it crashes, but at least in staying on you retain the (possibly slim) chance of finding a way to bring it back under control.
To conclude, then, the European Union is yet another avenue of argument that separatists appear to be determined to obfuscate in an attempt to improve their chances of winning this referendum. Unfortunately for them, though, their claims stand up to very little scrutiny, while their attempts to paint the more Eurosceptic unionists into a similar corner are easily defeated.Share on Facebook