An independent Scotland faces negotiations for EU membership after the Commission’s president dashed Alex Salmond’s hopes
IT was the answer he really didn’t want to give. José Manuel Barroso has, for some months – say European Union insiders – been avoiding any SNP figures in his travels around Brussels. “When you’re not able to agree to a request from someone, it’s easier just not to see them, rather than turn them down,” notes one well-placed figure in the Belgian capital. But a parliamentary question from Labour MEP David Martin, asking for the Commission’s view, had been hanging around for several months. A House of Lords committee letter, also asking for the European Commission president’s opinion, was on his desk. And now the BBC was preparing to conduct one of its Hard Talk interviews with him, where the topic was near-certain to crop up. Finally, the Commission’s best efforts to steer a distinctly wide berth around the powder keg of Scottish independence could not be avoided.
Barroso’s view – first revealed in Scotland on Sunday’s sister paper The Scotsman ten days ago – continues to reverberate among Scotland’s politicians this weekend.
For years, SNP ministers have maintained the position that Scotland would “automatically” inherit the UK’s current EU membership. The legal position, said Nicola Sturgeon five years ago, was not in “any doubt”. Last week, with Barroso’s words in the air, she changed tack, using not law but “common sense, reality and mutual self-interest” to claim Scotland would end up under the EU umbrella.
For opposition parties, both Barroso’s statement and the SNP’s subtle shift have provided a further opportunity to try to characterise Alex Salmond’s awful autumn as turning into a woeful winter. Without a recent poll, evidence of the public’s stance on independence and the SNP’s standing is hard to come by. The most recent surveys show the SNP government continues to have a high positive trust rating of +15 per cent. But while the pro-UK cause spies a chance to put First Minister Salmond and his deputy Sturgeon under pressure on the independence issue, they are also well aware that the confusion over Europe may also act to eat into the SNP’s hard-won credibility.
“People don’t get the ins and outs of all this but they are definitely beginning to get the sense that this lot can’t be trusted any more,” declares one pro-UK MSP.
The tale of the SNP’s EU-turns has become a totem for wider issues about trust and strategy on the independence question. So does the SNP’s case on EU membership stack up? And what does the row over the past few weeks tell us about Salmond’s plans?
The trouble with answering the first question is that, as one academic noted last week, anyone seeking clarity on the question of EU law and politics, particularly over a situation without precedent, is on to a loser. On the face of it, Barroso’s statement was accurate, note lawyers of EU business. Is it the UK, not Scotland, which is contained in EU treaties. Therefore, if it decided to breakaway, Scotland would be in the same position as an independent Cornwall in having to apply to join. Hence, the SNP’s opponents argue, an independent Scotland could find itself at “the back of the queue”, waiting for years to gain entry to the EU.
In the real world, however, things might be different. Alastair Sutton, a Scottish lawyer based in Brussels with a lifetime of experience of EU law, echoes Sturgeon’s point to agree that it is politics, not law, which would be the key factor at play. There is no “automaticity” about Scotland’s entry, he says, agreeing with Barroso’s point – and rebutting the SNP’s previous view. But, “if the political will were there, then all the arrangements – the number of MEPs and so on – could be sorted out between Date One [the referendum vote] and Date Two [the actual day Scotland becomes independent]. Scotland, with a very small gap, would then become a member of the EU”.
Sutton also believes that the rules could be bent to allow Scotland to negotiate after a “yes” vote before it actually becomes a new country – thereby preventing the situation where Scotland has to leave in order to come back in. (Normally a state would have to actually be a state before beginning talks.) Academics such as Professor Adam Tomkins of Edinburgh University, warn the SNP’s timetable for getting all this sorted – currently barely 18 months, from October 2014 to July 2016 – is way too short and couldn’t be achieved.
But most academics and lawyers appear to agree with Sturgeon that, if people voted “yes”, politics as much as law would decide its fate. It would not be the European Commission and its lawyers, but the European Council – the forum for the Union’s 27 member states – and its politicians, who would be key.
This new “politics-not-law” argument opens up its own set of questions. Sturgeon argued last week that “common sense” would dictate that those politicians would welcome in Scotland. First, she said, there was the tradition of the EU welcoming new members and its flexibility when member states changed their identity. Secondly, there was the issue of what Scotland could bring to the table. “We have around 90 per cent of the EU’s oil and gas reserves, in 2010-11, there were more than 16,000 EU students enrolled at our higher education institutions and 150,000 EU citizens living here by virtue of the freedom of movement that comes with our being part of the EU,” she declared. “In other words, we are an integral member of the EU. It is simply not credible to argue that the other nations of the European Union would not want to retain access to the vast array of resources and opportunities that Scotland brings to the EU table.”
She is backed by the independence-supporting chief executive of Hazledene Group, Mark Shaw. “Whatever the outcome of the referendum, Scotland will still have to do business in Europe and elsewhere in the world and it does nobody any credit to scaremonger,” he says.
But the very act of acknowledging that Scotland’s case would be based on political will has now opened up the issue of what those political negotiations would produce. Would Scotland keep its share of the UK rebate? Would it be able to keep the pound? What about border controls? On another issue – fisheries – Bertie Armstrong, the chief executive of the Scottish Fishermen’s Federation, gives a clear assessment of what would happen. First there would have to be negotiations with the UK over exactly how to divide up the present UK fish cake. And then everyone else – such as the Danes, the Irish, the Spanish and the French – would be looking eagerly at improving their current deal. He declares: “Instead of fighting for the UK share, we would have a new picture where the rest of the UK would be trying to maximise their benefits. And all the fishing nations with which we now more or less collaborate in regional agreements, would presumably regard this as an opportunity. I’m not saying we would lose but there would be a negotiation.”
He adds: “If anybody imagines that the EU consists of friends sitting around the table thrashing out the common good, well, it is a bear pit and fishing negotiations are about trying to get the best for your member state.”
Armstrong identifies the key question: “What muscle would Scotland have?”
On fishing, with Scotland’s huge waters, it potentially gets a better deal. On the wider issue, some international relations analysts have suggested Scotland could use the continuation of Trident weapons at Faslane as its big bargaining chip with the remainder of the UK (rUK) and France to ensure it was given a good deal on EU membership – a non-starter, however, for the SNP.
Sturgeon and Salmond prefer to point to the big-ticket items above – energy, education – that Scotland could bring to the table. But, say those with experience of EU corridors of power, that will not hold much water. One Scottish figure, who asked not to be named said: “It was extremely odd for her [Sturgeon] to be saying: ‘Look at all these things we can bring.’ Well, all these things are already in Europe, because the UK is a member state.”
The point being that, unless Scotland is threatening to withdraw from the EU, its various chips can hardly be used to bargain with. And without a hard stick, the fear is that the new country could get hammered itself.
Fishermen remember what happened in the 1970s when Britain negotiated its way into the then European Economic Community. Armstrong adds: “The fishing industry ended up being a bit of a pawn in this game. It was an example of a new entrant negotiating across the piece and in that case fishing received the rough end of the coconut.”
And then there is the issue of other nations with independence movements – Spain, most notably. Were Scotland to vote for independence, such countries may feel the need to lay down a marker. Spaniard Alejo Vidal-Quadras, the European Parliament’s vice-president, declared two months ago that Scotland should go through the accession process. Asked if this position was taken because of the Catalan movement for independence, he replied: “You are exactly right”. That, however, is not supported by the comments earlier this year of foreign minister José Garcia-Margallo who declared that “no-one would object to a consented independence of Scotland”. Which leaves those looking for clarity no further forward. And it left the SNP last week facing damaging accusations, that all bets would be off, the moment Scotland says “yes”.
Senior SNP sources, however, claimed to welcome this move into the practicalities of the independence debate, and the negotiations that would take place, as it begins to make the issue real. One SNP source says: “The sense of – and reporting of – Scotland negotiating our interests in a European context takes us on to the ground of Scotland beginning to think, sound and feel like an independent country. It’s what independent countries do.” They point to the fact that opposition leaders are being “drawn in” to discuss the options themselves.
The only problem is that the debate may end up leading people to a host of unanswerable questions prior to a referendum – because no-one can say with certainty how these negotiations will end. The answer, say some, is to get tougher, recasting the debate with the rest of the continent along the lines of “you’d be lucky to have us”. Meanwhile, other pro-independence backers say uncertainty should be embraced. “When you aren’t bluffing and you are being honest, then you can speak with true confidence. Confidence breeds confidence, and real confidence comes from knowing that you are telling the truth as honestly as you can,” argues one figure.
That truth, on last week’s evidence, looks messy and uncertain. But then so too does a future in the Union, says Sturgeon – pointing to the über-fact of a UK-wide referendum on the recasting of Britain’s relationship with the EU, set to face Scotland in the aftermath of a “no” vote. That message, however, is unlikely to be heard as loudly over the coming months ahead of Scotland’s own referendum. Uncertainty lurks everywhere: no wonder Barroso would prefer to steer well clear. «