Daniel Kenealy: All to play for in spite of Barroso’s letter

It took the form of a letter to the economic affairs committee of the House of Lords. In it José Manuel Barroso detailed his view that if Scotland were to become independent then it would have to apply for membership of the EU. The letter was in essence a reiteration of a 2004 statement by his predecessor, Romano Prodi.

The issue of an independent Scotland’s status within the EU has rumbled on for some months now with both sides in the debate using it as grist for their mills. For the unionists the element of uncertainty that is being created feeds into their narrative. For the SNP the idea that Scotland would remain automatically and seamlessly part of the EU fosters the sense of continuity and stability that is central to its narrative.

For those of us who are more interested in the issue as a genuine political and legal conundrum, the debate leaves much to be desired. There are several common sense points that need to be made about this issue. First, there is no definitive legal solution to the puzzle; it will ultimately be decided through an interaction of law and politics. Second, the opposing arguments put forward by pro- and anti-independence forces are overly simplistic. Third, the notion that Scotland will be forced to adopt the euro is false. Fourth, the EU’s commitment to democracy and self-determination ought to tell us a lot about how this will play out.

Perhaps the only definitive assertion one can make on this issue is this: there is no right answer. We cannot draw definitively on anything within the EU treaties, any rulings of the EU courts, or any historical precedent. But, before you shrug your shoulders in despair, remember that much of politics is uncertain and messy. Throughout its history the EU has dealt with several territorial quirks – none of which serve as a direct parallel for Scotland – in a way that has avoided the sort of drama and unnecessary difficulty that would be caused by pushing Scotland outside of the EU for even the briefest period of time. Barroso’s statements aside, there is little reason to think it would be much different in the case of Scotland.

Barroso’s letter cannot simply be ignored but it is crucial to understand that as Commission president he is not “the decider”. What we now have is a clear statement of opinion from the Commission: no more and no less. Even appraised as a statement of opinion it is important to note that it is ungrounded in any EU treaty provisions or case law. This is less than surprising given that nothing in the EU treaties or case law irrefutably confirms Barroso’s central point. Instead Barroso’s view, and that of the UK government, rests on classic arguments within public international law about state continuity and secession. The argument is that the Rump-of-the-UK will continue all of the rights, obligations and memberships of the current UK, with Scotland being handed a blank slate as a seceding state. The problem with this line of argument is that the EU has its own legal, arguably even constitutional, order and since as long ago as 1964 the European Court of Justice has clearly held that EU law is primary. In other words, it is highly doubtful that arguments imported from public international law have much relevance.

Barroso’s argument hangs on the claim, accurate enough, that the EU is a club of states and that because Scotland would be a new state it would be no different to Iceland or Croatia at present. But there is an alternative perspective that replaces the state with the citizen at the centre of the EU. This citizen-centric position argues that there is no mechanism through which to deprive those in Scotland of their current rights as EU citizens. True enough nothing within the treaties or existing case law provides for such a move. However, whether EU citizenship is a sufficient base on which to claim on-going membership of the club is contestable. EU citizenship supplements national citizenship of a EU member state and, although the European Court of Justice has sought to extend the reach and content of EU citizenship through the years, it remains secondary and supplementary. What remains so far unacknowledged by many of the party-political voices in the debate, however, is that Scotland would have the right to take its case to the European Court of Justice should it feel that it was being unfairly treated.

The interplay between the politics and the law of the EU will thus be crucial. Knowing that the Court of Justice would likely seek to extend the reach and substance of EU citizenship still further, the member states of the EU would likely seek to negotiate pragmatically with Scotland during the course of 2014-16. This would be ample time to iron out the specifics of Scotland’s status within the EU.

Some of those specifics will, of course, pertain to the various opt-outs and special provisions that the UK currently enjoys. Whether Scotland keeps all, some or none of them cannot be stated with certainty. But one opt-out must be discussed here briefly and that is the euro opt-out. The euro is a genuine example of scaremongering within this debate. The notion that Scotland could be forced or compelled to adopt the euro is simply untrue. Should Scotland fail to inherit the UK’s euro opt-out then, it is true, there would be a legal obligation for Scotland to adopt the euro when it met the necessary membership conditions.

But one of those necessary membership conditions is stable membership of the ERM-II (exchange rate mechanism) for two years, and such membership is optional. If that sounds a little bizarre – having an optional measure as a precondition for a mandatory one – then you perhaps aren’t familiar enough with the EU! Sweden is the classic example: it has wilfully avoided joining ERM-II but the thought of Brussels forcing it to adopt the currency is rightly seen as nonsense. It would be the same for Scotland. Furthermore it has to be recognised that Scotland is likely to use the pound following independence and there is no mechanism in the EU treaties at present to deal with a country lacking its own currency transitioning to euro membership.

Finally, if we step back and think about the essence of the EU it would be highly paradoxical, even schizophrenic, for a political entity that extols the virtues of democracy and self-determination to expel part of its existing territory because it exercised a democratic right and expressed its political will for self-determination. That would certainly undercut the EU’s claims to be a normative force on the global stage. When all is said and done it may be that the EU’s overarching commitments to these fundamental values are the best friends that Scotland could have.

For those looking for certainty in all of this, there is little solace to be found here. But when it comes to politics one should be wary of those offering certain arguments. The state-centric and citizen-centric views of the EU are simplified, stylised and sit at opposite ends of a complex political and legal spectrum. Somewhere in between those ends of the spectrum is the reality: Scotland will have to negotiate the precise terms of its status within the EU, there are trade-offs to be had, and various parties will drive hard bargains. But, ultimately, the notion that Scotland will at any stage find itself outside of the EU looking in, unless it chooses that for itself, is politically and legally far-fetched. That is as concrete as anybody can be.

• Dr Daniel Kenealy is a lecturer in politics & international relations at the University of Edinburgh