IN the debate over the question of an independent Scotland’s membership of the European Union it is important to reflect on both the legal order, the values and the past practices of the EU.
The matter of whether Scotland should be an independent country is one, rightly, for people in Scotland and I offer no view as to whether Scots should vote Yes or No.
In the event of a Yes vote it should be remembered that the European way has always been as an enabler, not a disabler, of democratic expression and will.
The European Union’s enlargement policy has been a soft power transformative force for the good, buttressing democracy in state after state in Greece, Portugal, Spain and the member states of Central and Eastern Europe. The European Union is founded on fundamental values: respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights.
Whatever its outcome this referendum will be a free expression of Scotland’s democratic will founded and grounded in the rule of law, constitutionally consensual and deserving respect, including if it votes for independence.
In this respect, it is worth recalling that the referendum is taking place within the constitutional order of the UK. It is politically but not constitutionally contested. The Edinburgh Agreement signed by David Cameron and Alex Salmond commits both the UK and Scottish governments to respecting the result, ‘whatever it is’ and ‘to work together constructively in the light of the outcome’.
This norm of constructive engagement is also expressed in the EU Treaties through ‘the principle of sincere cooperation’ requiring the Union and its member states ‘in full mutual respect’ to ‘assist each other in carrying out tasks which flow from the Treaties’. If the outcome is good enough constitutionally for the UK, the member state, then as a starting point, surely it is good enough also for the EU.
In terms of common interests, basic values and respect for citizen’s rights it is difficult to see what benefit would flow either for the rest of the UK, other member states or the EU institutions from placing impossible impediments in the way of a smooth EU transition for Scotland as an independent state in its own right.
Adding a new member state without adding any new territory or citizens, as would be the case of an enlargement involving Scotland, has no exact precedent in the EU.
Faced with other unprecedented territorial challenges in the past, of withdrawal in the case of Greenland and of reunification in the case of Germany, the EU has shown pragmatism and inventiveness. It has always respected the expressed democratic will of the peoples involved where this has not been the subject of internal constitutional dissent. Neither case is an exact precedent for the Scottish case but both reveal the lengths to which the European institutions and member states were prepared to go to accommodate change that was democratically mandated but not foreseen by the Treaties.
A new member state joining the EU requires Treaty change. This would be necessary even if only to facilitate Scotland’s independent place at all relevant EU decision making tables including the Commission, the Parliament, the Council of Ministers, the European Council and other relevant EU institutions such as the European Court of Justice.
Sufficient precedents exist on representation relative to population size and on transitional arrangements to suggest that this should not necessitate protracted negotiations.
During this referendum debate suggestions have been heard that it would be difficult for Scotland to join the EU or that an independent Scotland would have to go to the back of the enlargement queue. Such statements arguably are sophistry and do not bear analysis.
It has never been explained how or why under EU law, a new legal order in its own right, an independent Scotland would or should end up at the back of an enlargement queue; nor how nor why the territory and citizens of Scotland would or should to be alienated from their long-acquired EU rights. How or why would Scotland be cast out of the EU and be obliged under Article 49 of the Treaty on European Union (TEU) to apply for membership as a third country. Article 49 is the outsider’s means of applying to get in, not an insider’s means of negotiating continuity of effect in respect of its territory and citizens.
There is a negotiated alternative, which would reflect past pragmatism and inventiveness of the EU when faced with territorial challenges unforeseen by the Treaties, namely the Treaty revision procedure anticipated by Article 48 of the TEU.
In the case of an independent Scotland many have referred to this as the ‘internal enlargement’ route. It would exhibit respect, solidarity and a spirit of sincere cooperation.
Moreover, it is unclear what would be the common European interest in seeking to expel an independent Scotland. On the contrary, at the limit, such interests could be damaged by the fragmentation of the internal market and not least the chaotic implications for the EU’s fisheries sector, including its Scottish-related access to Norwegian fisheries.
Scotland already has experienced more than four decades of European integration and its legal order already incorporates the body of EU law, the acquis communautaire, by virtue of the application of the European Communities Act 1972 (UK) and its subsequent amendments. This situation will continue to apply post referendum but pre-independence.
Done thoroughly and expeditiously an internal enlargement could be negotiated during this interim period between the referendum and the independence of Scotland in 2016.
It is the preferred position of the Scottish government as explained in the White Paper on Independence and would reassure citizens and business of a continuity of effect at no cost to or dislocation of others or of the EU’s internal market, common policies or citizen’s rights.
Ensuring Scotland’s continued membership of the EU is in the common interest of people of Scotland, of the wider UK pre or post the referendum, and of the rest of the European Union.
Scotland’s uniquely constitutional and lawful path to independence sets it apart. Scots live, study and work in the rest of the EU, as today do 158,000 EU non-UK citizens in Scotland. Whatever the result on September 18 this is a positive, flourishing partnership whose mutual benefits can and should be assured.
• Pat Cox served as President of the European Parliament from 2002 to 2004.