Scottish independence and the EU: a solution

There is no precedent to determine the place of an independent Scotland in the EU, with some in the bloc even seeing it as an opportunity to be rid of the UK itself – but ironically the answer could be found in the British constitution, says think-tank

When the British Prime Minister, David Cameron, met Scotland's First Minister, Alex Salmond, on October 15 to sign an agreement on the terms of a referendum on Scottish independence, it marked the end of months of wrangling. Before the end of 2014, the pair confirmed, Scottish voters will be asked whether they wish to provide a mandate to their executive to negotiate the end of the 300-year-old union between Scotland and England.

In such an eventuality, there is one major issue that cannot be handled bilaterally: the question of an independent Scotland and rump-United Kingdom's place in the European Union. This will depend on EU procedures. The EU, however, has no precedent for this sort of thing. And, as a kind of hybrid organisation, being more than an international organisation, but less than a state, Brussels cannot really rely upon international law for guidance.

The large degree of political discretion thus open to other member states and the European institutions in deciding the matter has been picked up on in the UK, and is skewing the terms of the independence debate. Domestic opponents of independence suggest, for instance, that EU member states such as Spain will use the question of membership to punish Scottish voters for breaking the union. Madrid is famously reluctant to see 'independence in Europe' emerge as a viable model, and, facing growing separatist movements at home, the Spanish foreign minister recently backtracked on an earlier, laissez-faire statement that the Scottish case is distinct and exceptional, suggesting a more punitive line.

The EU provides various means for concerned states to frighten the Scots out of a bid for independence. Most obviously, they could contend that an independent Scotland would forfeit its membership – that it cannot be considered a successor state to the UK and must re-apply. Supporters of independence, by contrast, have suggested that there is little scope to follow through on such threats: whether Scotland is considered a UK-successor state or not, Scots enjoy European citizenship and some experts argue it would be hard to deprive them of it under EU law. Besides, what interest would the EU have in following through and punishing the Scots should they vote for independence? Losing a member state could be just as disruptive as gaining another by stealth.

As a compromise option, therefore, there are suggestions that Scotland might undergo some kind of 'internal accession'. It would not have to leave the EU, but its continued membership would be taken as a commitment to slowly give up any special arrangements that the UK currently enjoys. What all sides seem to ignore, however, is that hostility to Scottish independence on the part of EU members and institutions is about more than the risk of 'independence contagion'. There is broad concern about the emergence of another sceptical, peripheral member state, at a time of multi-speed EU integration and political fragmentation. Many European politicians – and not just in France – would even welcome the opportunity to be rid of the UK.

While it would be a drastic move on their part to refuse to recognise either Scotland or the rump-UK as successor states to the UK and make them both re-apply for membership, some will hope that a forced Scottish exit could trigger the long-awaited 'Brixit', or British exit. It is a sad state of affairs, and what it points to more than anything is the EU's failure to deal with diversity amongst its members. British euroscepticism is not simply a home-grown phenomenon but a symptom of a broader crisis in the EU arising from its stodgy, legalistic mode of cooperation. A Brixit will not solve the problem.

Ironically, however, a good dose of British constitutional thinking might just do the trick. Unlike the hierarchical nation-states whose constitutional practice the EU has tried to copy, the UK's constitution evolved to deal with a more diffuse setup– a pluri-national community in which there was no common sense of destiny; a setup not unlike the EU itself. The UK might thus serve as an inspiration. It traditionally views itself as an organic community, one based on a clear rationale rather than any assumption of a shared sense of destiny, and one whose constitutional practice is based on the notion that diversity is valid rather than a threat. If the UK itself is now fragmenting, it is because London too seems to have forgotten those lessons. The EU can avoid following it down that path.

Arno Engel and Roderick Parkes' commentary on this topic for the European Policy Centre, Accommodating an independent Scotland: how a British-style constitution for the EU could secure Scotland's future, can be read here