8 September 2022
Scotland’s EU Debate
The Essential Questions on Membership of the European Union under Independence
Anthony Salamone
© 2022 European Merchants
Anthony Salamone FRSA is Managing Director of European Merchants
Contents
Introduction
The question of potential Scottish EU membership is a foundational aspect of the independence debate today. In the post-Brexit era, the outlook for our relationship with the EU shapes how many people approach the constitutional issue. In fact, we in Scotland have debated that relationship for the past decade at least: through the campaigns for the 2014 independence referendum and the 2016 EU referendum, to the process of the UK leaving the EU and exiting its transition, to the current post-Brexit EU-UK relationship. Over those years, EU relations have been a recurrent feature in our politics and public debate.
Having dedicated so much time to considering the UK’s former EU membership, Brexit and possible Scottish EU membership, Scotland’s political conversation on the EU should be thoroughly informed and nuanced. In reality, Scotland’s EU debate is at present superficial, repetitive and inward-looking. It is driven by headline sentiment and recycled arguments. It has adopted the mistaken view that, because relations with the EU are essential to the future of Scotland and the UK, the reverse is true for the EU. Scotland’s political system and many of its various participants evidence too little understanding of the workings of the EU, the Brussels agenda and the politics of the EU and its national capitals.
This state of affairs is insufficient for our times. Scotland should have positive and productive connections with the EU, whatever its constitutional future. It should have a thoughtful and developed debate on how to engage with the EU as part of the UK. It should have a serious and detailed conversation on the premise of Scottish EU membership, as part of the wider independence debate. When it comes to EU relations, Scotland needs substance over sentiment.
This report addresses the matter of Scottish EU membership in the event of independence. It does not consider the ongoing dispute over whether to hold a new independence referendum. To focus on its purpose, the report is premised on the scenario that Scotland applied to join the EU after independence, which resulted from a referendum agreed between the Scottish and UK Governments. In so doing, it considers the choices and challenges at play on the EU issue. To that end, this report sets out 100 essential questions on EU membership for Scotland in the case of independence. Divided into 20 themes, these questions illustrate the range of consequential topics which should be part of Scotland’s debate on this matter, but which are either absent or lacking in depth.
Any credible and serious proposal for Scottish EU membership should, at a minimum, address these questions in a forthright and thorough manner. It is incumbent on proponents of independence to offer detail at this stage. While it remains unclear whether or when a bona fide independence referendum may be held, the debate will assuredly continue. That debate, including on the question of EU membership, should be as informed and substantive as possible. It is high time to upgrade Scotland’s conversation on EU relations in the present and potential EU membership in the future. This report provides a foundation for the latter, while other work from European Merchants supports the former.
Anthony Salamone FRSA
8 September 2022
Terms
The act of a state formally joining (acceding to) a treaty or organisation. An EU accession process is the path to become an EU Member State.
Pre-AccessionThe period before a state joins the EU. Once a candidate country, it is the time between a state’s candidate designation and its accession to the EU.
Acquis communautaire (or simply Acquis)The collection of the EU’s laws and policies, including the EU treaties (primary legislation), secondary legislation, court rulings and international agreements. A candidate state must satisfy and implement the acquis at the point of its accession to the EU (besides any derogations or transitional arrangements).
EU TreatiesThe foundational agreements of the European Union. The two currently in effect are the Treaty on European Union and the Treaty on the Functioning of the European Union (both as amended, most recently by the Treaty of Lisbon). The EU Charter of Fundamental Rights also has equal standing to the treaties.
EU InstitutionsThe principal organs of the European Union. The most frequently referenced are the European Commission, the European Council, the Council of the EU, the European Parliament and the Court of Justice of the EU. The European Central Bank and the European Court of Auditors are also major organs.
Applicant CountryA European state which has applied to join the EU and which has not yet been granted candidate country status by the Member States.
Candidate CountryA European state which has been granted candidate country status by the Member States and which is undertaking its EU accession process.
Acceding CountryA European state which has in principle completed most of its EU accession process and which is preparing for the role of Member State.
Member StateA constituent member of the European Union. At present, the EU consists of 27 Member States. Besides the six founding members (pays fondateurs) of the EU’s predecessors, each has gone through an accession process to join the EU.
EnlargementThe addition of new members to the EU. Enlargement policy refers to the EU’s approach to relations with current and potential candidates for membership.
1 : Rationale
Why Scotland should join the European Union
Context
Becoming a member of the European Union is a major constitutional decision. In one form or another, EU membership affects nearly every domain of politics and policy (whether or not that fact is appreciated). The functions of the state are influenced by the rights and obligations of EU membership. Scotland and its institutions would be shareholders in the European Union, participating in EU policy-making and contributing in setting the future direction of the EU. The UK’s departure aside, membership is generally considered to be permanent. In that context, it would be incumbent on proponents of Scottish EU membership to advance a reasoned and substantive rationale for why Scotland should join the European Union. Such a rationale should cogently articulate why Scotland’s values and interests would be best served by becoming part of the EU.1
Questions
- What case would the Government and others make for why Scotland should join the European Union as an independent state?
- What would the political rationale be for Scotland joining the EU?
- What would the economic rationale be for Scotland joining the EU?
- How would Scottish EU membership be different compared to Scotland’s former participation in the EU as part of the United Kingdom?
- How would the rights and obligations of EU membership affect Scotland’s constitution, politics and policies as a state?
Insight
In the event of independence, a decision to join the European Union would have a significant impact on the functioning and evolution of the Scottish state. The fact that the residual UK would presumably not be part of the EU would carry important implications for Scotland as well. Accordingly, advocates of that course would have an obligation to offer a strong case for EU membership. It would be insufficient to contend that, since the Scottish electorate opposed Brexit in the UK’s 2016 EU referendum, its support for Scottish EU membership could be presumed. It would be equally misguided to suppose that pro-EU sentiment in Scotland meant that no justification for EU membership would be required. In reality, a broad rationale for joining the EU, offered at the earliest stage, would be vital for demonstrating sufficient understanding of the choices and challenges involved and for securing public support for EU membership.
2 : Process
How Scotland would approach the accession process
Context
The procedure for a European state to join the EU is well defined, having been refined over successive waves of enlargement.2 In brief, after a state applies to join the EU, the European Commission prepares an opinion on its application and the Council of the EU decides whether to grant candidate status. If so, the Commission assesses the candidate’s readiness and then negotiations take place on a chapter-by-chapter basis. After the negotiations are complete, the Commission issues a final opinion, the European Parliament gives consent and the Council provides final approval, a treaty of accession is signed. The treaty is then put out for ratification by the candidate and all existing Member States. The candidate state normally holds an accession referendum. Once all the national ratifications are complete, the applicant becomes an EU Member State on the date specified in the treaty. Scotland would follow this procedure.
Questions
- How would Scotland prepare, during the transition to statehood and before its application, to undertake the normal EU accession procedure?
- How would Scotland demonstrate its evolving ability to fulfil Copenhagen criteria at the point of application and during its accession process?
- What principles would guide Scotland in its pursuit of EU membership and its participation in the EU accession procedure?
- What priorities would Scotland establish for its pre-accession relationship negotiations and its accession negotiations?
- How would Scotland advocate its particular interests in its EU accession process while avoiding argument with the EU about the latter’s own rules?
Insight
In the debate around the 2014 independence referendum, a central argument on EU membership was whether Scotland would “continue” as a member (through treaty amendment via Article 48 TEU) or whether it would have to apply in the normal way (via Article 49 TEU).3 Since the UK is no longer part of the EU, that question is not applicable. In the event of independence, Scotland would follow the regular EU accession procedure. The EU would have no particular incentive to create a special procedure just for Scotland. Nevertheless, that fact would not create an inherent difficulties for the Scottish state. As no “queue” exists, it would follow the usual process at its own pace (likely faster than others).
3 : Timescale
How long Scotland’s accession process would take
Context
The length of a state’s EU accession process is not predefined. It is neither a fixed duration nor a product of agreement between the parties. Instead, it is a function of the time ultimately expended on undertaking and completing the different stages of the accession process. Various factors influence its duration. Some stages move faster or slower depending on the candidate’s preparedness. Other stages require time regardless of the candidate’s circumstances. Political will among the Member States for the candidacy is an important consideration. Disputes between the applicant and one or more members can glaciate the accession process. However, the most consequential factor is the approach of the candidate itself: how thoroughly it prepares for accession, how quickly it implements stipulated reforms, and how well it works with the EU institutions.
Questions
- What reasonable estimate would the Government give of how long it would Scotland to join the EU, from point of application to point of accession?
- What target, measured in months and years, would the Government set for the completion of Scotland’s EU accession process?
- How would Scotland prepare itself, during the transition to statehood and before its application, to minimise the length of the accession process?
- How would Scotland enhance its convergence with the acquis, before and after its application, to minimise the length of the accession process?
- How would Scotland implement the recommendations of the EU institutions in a timely fashion to minimise the length of the accession process?
Insight
Scotland would be able to apply to join the EU only after it had become an independent state.4 Accordingly, the length of its EU accession process should be measured from the point of application to the point of accession. Analysis from European Merchants indicates that Scotland could take 44-78 months to complete its accession process.5 Within that range, 48-60 months (4-5 years) would be a reasonable estimate. That analysis is based on a straightforward accession without major difficulties. While the Government could not dictate the length of the process, it should establish a target to EU accession for Scotland, to focus its efforts. Ultimately, the quality of Scotland’s preparations would shape the duration of the accession process more than external forces.
4 : Pre-Accession
What Scotland’s pre-accession relationship would be
Context
As part of a candidate’s path to membership, the applicant and the EU normally conclude one or more agreements to establish a pre-accession relationship between them. This relationship usually includes degrees of access to the EU Single Market for the candidate, among other elements of cooperation. In this regard, Scotland would be in a unique position – previously part of the EU along with the rest of the UK, its starting position would be the EU-UK relationship at the time. In the absence of an EU-Scotland agreement in place at the point of independence, Scotland would experience a vacuum in its relations with the EU. The imperative would be to secure a suitable pre-accession relationship, during the transition to statehood, based on political will from the EU and the UK.
Questions
- What form of pre-accession relationship would Scotland seek with the EU?
- How would Scotland ensure that its pre-accession relationship, or an early version of it, were agreed and operational at the point of independence?
- Would Scotland intend to negotiate its pre-accession relationship during the transition to statehood following an independence referendum?
- If yes, how would Scotland secure the agreement of the UK Government and EU Member States to negotiate before it was an independent state?
- If no, how would Scotland avoid a political, economic and legal vacuum in its relations with the EU at the point of independence?
Insight
In the event of independence, it would be essential that Scotland have in place a suitable formal relationship with the EU on day one. Achieving that objective would require good cooperation between Scotland, the EU and the UK. Unlike the EU accession process itself, which could not begin until after independence, negotiations on the pre-accession relationship would need to take place during Scotland’s transition to statehood to avoid a vacuum. In that context, analysis from European Merchants has proposed that Scotland and the EU, with the endorsement of the UK, negotiate an EU-only Association Agreement during the transition that would take effect at the point of independence.6 An “EU-only” agreement is concluded and ratified directly by the EU institutions, on the basis of the EU’s areas of exclusive competence, rather than by the Member States. This agreement could be supplemented after Scotland had become a state.
5 : Acquis
How Scotland would satisfy the acquis at accession
Context
At its core, the principal purpose of the EU accession process is to ensure that the applicant will satisfy and implement the acquis communautaire, excepting any derogations, transitional measures or special arrangements, at the point of accession. To structure the accession process, the acquis is divided into 35 thematic chapters.7 For each chapter, Scotland would need to demonstrate that its laws, policies and practice would comply with the acquis at accession (save special arrangements) and that Scotland would have the institutional capacity to the implement the acquis as a Member State. The acquis itself is constantly changing, with new EU secondary legislation, court decisions, international agreements and other developments. As an EU Member State, Scotland would have a continuing primary obligation to satisfy the acquis as it evolved.
Questions
- How would Scotland achieve compliance with the acquis communautaire by the time of its accession to the EU?
- How would Scotland assess its own compliance with the acquis, before its application, during the negotiations and after the signature of the treaty?
- How would Scotland demonstrate its alignment with the acquis to the EU institutions, particularly its initial high alignment in relevant areas?
- What derogations, transitional measures or other special arrangements would Scotland seek relative to the acquis in the negotiations?
- How would the Government justify those special arrangements which it requested to the EU institutions and the Scottish public?
Insight
Scotland’s starting position in relation to the acquis would be favourable. It was previously part of the EU and its predecessors (via the UK) for 46 years, and Scottish institutions implemented the acquis in their areas of competence. It is an established democracy with a developed free-market economy. At the same time, Scotland is no longer part of the EU; along with the wider UK, it is on a path of divergence from the EU; and multiple chapters of the acquis concern matters reserved to the UK state. Accordingly, while Scotland would be well placed to satisfy the acquis at the point of accession, it could not meet the acquis in full today. Scotland’s actual compliance with the acquis would only be known once its laws and policies had been screened to assess their alignment.
6: Personnel
How Scotland would secure the requisite personnel
Context
To undertake the EU accession process and later to exercise the functions of an EU member, a state requires qualified personnel. In Scotland’s case, a central task of the transition to statehood would be the establishment of institutions for a state, including government departments and a civil service. That task would incorporate the creation of a department for European and international relations and a diplomatic cohort (if not a separate service) within the civil service.8 It would involve a reimagination of existing Scottish governance. First, the Government would need to recruit individuals with expertise in the politics and institutions of the EU and of the Member States. Next, that surely disparate cohort would require a common culture and direction. Looking ahead, Scotland would have to invest in education to produce future candidates for EU affairs.
Questions
- How would Scotland recruit sufficient qualified personnel with expertise in the politics and institutions of the EU to facilitate its EU accession process?
- How would the Government integrate new staff with various specialties, including Scots previously resident abroad, to support EU accession?
- Would Scotland establish a diplomatic service, distinct from the rest of the civil service, to gather and deploy personnel with diplomatic expertise?
- How would Scotland increase the availability of suitable education opportunities within the state to produce qualified EU affairs candidates?
- How would Scotland ensure that sufficient qualified Scottish candidates were available for the EU civil service after the signature of the treaty?
Insight
Beyond agenda competition in the EU institutions or political dispositions of the Member States, the prospects for Scotland’s EU accession would depend on it having qualified individuals to develop suitable pre-accession strategy, conduct the negotiations with the EU and undertake national preparations for Scotland to become ready to accept the rights and obligations of EU membership. Both the Government and other institutions would require individuals with applicable experience and expertise, including knowledge of the functioning of the EU, the politics of the Member States and EU languages. As part of EU accession, it would be incumbent on Scotland to invest in secondary and tertiary education on the EU and European languages to foster Scottish EU affairs candidates.
7 : Institutions
How Scotland would relate to the EU institutions
Context
Throughout its accession process, Scotland would engage on a regular and detailed basis with major EU institutions. Formally, accession negotiations are conducted between the candidate and the Member States (unlike international agreements concluded by the EU, which are usually formally negotiated by the European Commission).9 Nevertheless, the EU institutions have significant roles in practice. The Commission, through its Directorate General for Neighbourhood and Enlargement Negotiations, provides technical expertise, assess acquis compliance and issues opinions and recommendations to the Council of the EU. The European External Action Service performs a supporting role on the foreign policy acquis. The General Affairs Council configuration of the Council takes decisions on the candidate’s accession, in line with political guidance from the European Council. The state holding the rotating presidency of the Council has responsibility for negotiations on behalf of the Member States. The European Parliament has no negotiating role, but must provide its consent to accession.
Questions
- How would Scotland build lasting relationships with the EU institutions to support its EU accession process and future role as a Member State?
- How would Scotland work with the European Commission, including the DG Neighbourhood and Enlargement Negotiations, to facilitate EU accession?
- How would Scotland work with the Council of the EU collectively and the Member States individually to sustain momentum for EU accession?
- How would Scotland work with the European Parliament, including the Committee on Foreign Affairs, to ensure backing for EU accession?
- How would Scotland enhance its presence in Brussels to enable effective interaction with the EU institutions throughout the accession process?
Insight
To conduct a successful and beneficial accession process, Scotland would have to engage proactively and strategically with the EU institutions. While it would be reasonable to advocate Scotland’s positions, it would equally be important to respect the process and the EU’s rules. A central component of Scotland’s pre-accession engagement would be its representation in Brussels.10 This base would evolve over time, from a Mission to the EU at the point of application to a Permanent Representation to the EU once Scotland became a Member State.
8 : Members
How Scotland would relate to the Member States
Context
Alongside its relationship-building with the EU institutions, Scotland would also need to develop its relations with the existing Member States. Its aim should be to forge sustainable and productive relationships with each of the current 27 members. In that regard, the intended outcome would be the establishment of a foundation for cooperation with each Member State that endures regardless of the political parties in power in Edinburgh or EU national capitals. Although Scotland would likely have more in common with some members than others, it would have to be able to work with all Member States. Nearly every decision in the Council on Scotland’s EU accession process would require unanimity, so the imperative of maintaining communication with all members would be evident.
Questions
- How would Scotland establish high-quality bilateral relationships with each of the existing EU Member States as a new European state itself?
- What alliances and partnerships could Scotland forge with different Member States to advance its vision for the future direction of the EU?
- Would Scotland open an embassy in every EU Member State?
- How would the Government conduct effective bilateral triangulation with Member States across Edinburgh, Brussels and national capitals?
- How would Scotland overcome the reluctance of some Member States to enlarge the EU further, generally or without institutional reform first?
Insight
In its pre-accession relations with the existing Member States, the main priority for Scotland would be to sustain their support for its accession process. The EU agenda is crowded and political attention on enlargement can wane. As the formal head of the accession negotiations, the Council presidency has influence over the agenda, but the priorities of each Member State holding the role vary. In parallel to the process of accession, the goal for Scotland would be to keep momentum for its candidacy in the Council and with the Member States. At the same time, Scotland would want to avoid bilateral disputes that could stall its accession process. While it appears unlikely that any particular Member State would be seriously opposed to Scotland’s prospective accession to the EU, it would be prudent to build relationships with all members to understand their positions. In so doing, Scotland would prepare for its future role in the Council.
9 : Finances
How Scotland would meet the economic policy acquis
Context
The economic policy acquis, part of the wider Economic and Monetary Union, includes measures related to the public finances of the Member States. The aim is to ensure macroeconomic stability, in individual Member States and for the EU overall, and to promote the convergence necessary to underpin the Single Market and the single currency. The Stability and Growth Pact is a core part of the acquis.11 It includes two well-known fiscal rules: that a Member State’s budget deficit should be no more than 3% of its GDP and that its national debt should be no more than 60% of its GDP. The application of these fiscal rules was suspended temporarily because of the coronavirus pandemic and the impact on public spending. Proposals are being made to reform the implementation of the Stability and Growth Pact, in view of the ongoing uncertainties facing the EU.
Questions
- Would Scotland reasonably expect its public finances to align with peer Member States and EU averages by the time of its accession to the EU?
- If yes, how would Scotland satisfy the economic policy acquis, including the national debt and deficit rules of the Stability and Growth Pact?
- If no, what special arrangements would Scotland seek relative to the economic policy acquis in the negotiations?
- What impact would the establishment of the Scottish state have on the public finances and Scotland’s ability to fulfil the economic policy acquis?
- How would the requirements of the economic policy acquis affect the shape and evolution of Scotland’s fiscal policy?
Insight
In the current context, it is possible that the EU may eventually adopt a new approach to the coordination of national fiscal policies. However, the EU will still have fiscal rules for Member States in one form or another, and Scotland would be expected to meet them like any other member. At the same time, the EU has shown flexibility for candidates and new members, so fulfilling all the standards of the Stability and Growth Pact on day one would not be the test.12 Instead, Scotland and the EU would have to find a path forward which balanced the requirements of the EU’s rules and the state of Scotland’s public finances. Those finances would be shaped by the condition of the Scottish economy and the costs of establishing a new state, the latter of which would be temporary.
10 : Currency
How Scotland would meet the monetary policy acquis
Context
The monetary policy acquis is formulated on the basis that a Member State will have its own state currency, before completing the stages of Economic and Monetary Union and adopting the euro at some point. This assumption is related to, but distinct from, a candidate’s actual relationship with the euro. If a state does not have its own currency or monetary institutions, it cannot fulfil the monetary policy acquis in the normal way. However, the lack of a state currency is not a bar on pursuing EU accession. Montenegro, which is currently a candidate country, does not have its own currency and instead uses the euro unilaterally without a monetary agreement with the EU.13 Nevertheless, it would be unusual for a European state with a developed free-market economy not to have its own currency, generally or at the point of its accession to the EU.
Questions
- Would Scotland have a currency by the time of its accession to the EU?
- If yes, how would Scotland satisfy the monetary policy acquis, including, for instance, the independence of the state’s central bank?
- If no, how would Scotland approach the monetary policy acquis, given that it would have neither a state currency nor a full monetary policy?
- If no, what special arrangements would Scotland seek relative to the monetary policy acquis in the negotiations?
- If no, what plan would the Government propose to the EU institutions for the establishment of a Scottish state currency, including the timetable?
Insight
The nature of Scotland’s position relative to the monetary policy acquis would depend on whether or not it had its own state currency, either at the point of application or at the point of accession. If Scotland did not have a currency, it would need some form of special arrangement on the monetary policy acquis. While such an arrangement would be possible, given political support from the Member States, the EU would likely seek accompanying guarantees. Such conditions could include a detailed plan from Scotland for the establishment of its own currency, including the sequencing of monetary conversion. It would want evidence on the economic, fiscal and monetary implications of this plan. It would surely want assurances that the plan would ensure the stability of the Scottish economy and likewise not affect the stability of the EU Single Market.
11 : Euro
What Scotland’s relationship with the euro would be
Context
Economic and Monetary Union is a core pillar of the EU. For many, the euro and the Single Market are the EU’s foundations. At present, 19 of 27 Member States have formally adopted the euro as their currency and only one Member State, Denmark, has an opt-out on the euro.14 Members outside the euro area have a general obligation to join it at some point, but each has control over its own timetable. In practice, non-euro Member States are not compelled to adopt the euro and instead are free to make their own decisions on that question. In any event, the eurozone is an important space for decision-making in the EU on matters which extend beyond the currency, like the banking union, and which have an impact on the EU as a whole. Generally speaking, non-euro states have limited influence on eurozone policies, even though they are affected by them.
Questions
- Would Scotland elect to fully participate in Economic and Monetary Union and to adopt the euro at some point in the years following EU accession?
- If yes, how would Scotland complete the stages of Economic and Monetary Union, including the envisaged timetable for formal euro adoption?
- If no, how would Scotland relate to the eurozone, including the wider aspects of Economic and Monetary Union, such as the banking union?
- What would the monetary, economic, political and strategic consequences be of Scotland adopting the euro versus those of not adopting it?
- Would Scotland eventually hold a referendum to determine whether to complete the stages of Economic and Monetary Union and adopt the euro?
Insight
Like any other candidate, Scotland would not be obliged to adopt the euro at the point of its accession to the EU. Instead, it would have a general obligation to complete the stages of Economic and Monetary Union and to join the euro area at some point. That point could be never, if Scotland so decided. While it would be highly unlikely to secure a treaty-level opt-out on the euro, Scotland would not need one to remain outside the euro area. It could simply choose not to advance the process for adopting the single currency. The more relevant question for Scotland is the costs and benefits of joining versus not joining the euro. The majority of members have adopted the euro, and most of the rest will likely do so eventually. On the outside, Scotland could find itself isolated.
12 : Schengen
What Scotland’s relationship with Schengen would be
Context
The Schengen Area is the EU’s borderless travel zone. Border controls on the movement of people have been abolished within the area, in exchange for a common external border. At present, 22 of 27 Member States have joined the Schengen Area (along with the four EFTA states) and only one Member State, Ireland, has an opt-out on Schengen.15 Members outside the system have an obligation to join at some point. Schengen and the free movement of people are not the same. Free movement concerns entitlements (to work or reside, for instance). Schengen concerns border controls. The Schengen acquis includes elements beyond direct border management, including the common visa policy and police and judicial cooperation. The Common Travel Area is a separate borderless travel zone. It would be impossible to fully participate in both.
Questions
- Would Scotland seek an opt-out from participation in the Schengen Area?
- If yes, what arrangement would Scotland propose to the EU institutions to facilitate its non-participation in the Schengen acquis?
- If no, how would Scotland implement border controls on the movement of people between it and Ireland and the UK once it joined the Schengen Area?
- Would Scotland seek to participate in the non-border aspects of the Schengen acquis, such as related police and judicial cooperation?
- How would Scotland secure the agreement of Ireland and the United Kingdom for it to participate in a revised Common Travel Area?
Insight
If Scotland intended to participate in a revised Common Travel Area, it would need the agreement of Ireland and the UK. On balance, it would likely be given, but Scotland would not automatically be part of the area. That outcome would require negotiations with the existing parties. By joining the Common Travel Area, Scotland would be unable to join the Schengen Area, as they are two separate borderless zones. Accordingly, it would have to secure a special arrangement with the EU. The argument for Scotland not joining the Schengen Area is logical, given its geography and the fact that its nearest neighbours participate in the Common Travel Area. Nevertheless, it is unclear whether the Member States would be disposed to creating a new treaty-level opt-out. If not, an alternative would have to be found that achieved the same result.
13 : Borders
How Scotland would fulfil the acquis at its borders
Context
As an EU Member State, Scotland would have an obligation to implement EU law at its borders. In respect of the United Kingdom, Scotland would apply the EU-UK relationship in force (currently the Trade and Cooperation Agreement).16 If Scotland participated in a revised Common Travel Area, no border controls on the movement of people would exist between Scotland and the UK. By contrast, trade in goods between Scotland and the UK would be subject to border checks and controls, just like trade between the UK and any other EU Member State. If the Northern Ireland protocol were still in force, trade between Scotland and Northern Ireland would in theory not require border controls. If the UK chose to pursue a closer relationship with the EU in the future, it is possible that border controls for Scotland-UK goods trade could be reduced or eliminated.
Questions
- How would Scotland implement EU law, including the provisions of the EU-UK relationship, at its borders with the United Kingdom?
- How would Scotland construct the requisite border infrastructure to conduct border controls on trade in goods with the United Kingdom?
- How would Scotland recruit sufficient qualified personnel to operate border controls and to implement EU law at its borders with the United Kingdom?
- How would Scotland mitigate the impacts of the introduction of border controls with the United Kingdom on their bilateral trade in goods?
- Would Scotland’s pre-accession relationship result in full border controls on trade in goods with the United Kingdom at the point of independence?
Insight
The transition to statehood for Scotland would include the construction of the necessary infrastructure for border controls on trade in goods. In theory, that infrastructure would be needed even if Scotland did not join the EU (unless it formed a customs union with the UK). If Scotland did seek to join the EU, it would have a responsibility to implement the EU-UK relationship at the point of accession. Once an EU member, Scotland would have no standing to negotiate directly with the UK on matters under the EU-UK relationship. Any negotiations would take place between the European Commission, representing Scotland and the other Member States, and the UK Government. Depending on its scope, Scotland’s pre-accession relationship could also require border controls.
14 : Fisheries
How Scotland would approach fisheries policy
Context
The Common Fisheries Policy is the core of the EU fisheries acquis. Like the wider acquis, it is not optional, but rather an intrinsic part of EU law. Through the policy, quotas for various stocks are decided by the Council of the EU on an annual basis. The European Commission provides advice and proposals to the Council. Although only some Member States have national waters, all members take part in Council decisions on fisheries. The question of fisheries is sensitive for multiple Member States that have historic fishing communities and consider them an important part of their national identity, even if the overall economic impact of the industry to the state is small. Tensions between scientific advice, industry preferences and actual quotas are common. However, compromises are necessary to ensure sustainability of stocks, livelihoods and communities.
Questions
- How would Scotland prepare to implement the Common Fisheries Policy and the wider fisheries acquis by the time of its accession to the EU?
- How would Scotland manage the transition for fisheries up to EU accession, including the negotiations with the UK and the EU on Scottish waters?
- Would the Government seek changes to the Common Fisheries Policy or special arrangements on fisheries for Scotland in the negotiations?
- If yes, what changes or special arrangements would the Government propose to the EU institutions, taking into account Scotland’s geography?
- If no, how would the Government justify Scotland participating in the Common Fisheries Policy as it stood, given historic dissatisfaction with it?
Insight
As an independent state, Scotland would have significant national waters and fisheries would surely be an important subject for it. The first priority would be to manage the resulting transition, as the EU-UK relationship would have to be renegotiated to remove Scotland (including its provisions related to fisheries), which would later participate in the Common Fisheries Policy once a Member State. It is possible that Scotland’s pre-accession relationship could include provisions on fisheries and access to waters. Scotland would have to decide whether to advocate for changes to the Common Fisheries Policy (during the accession negotiations or once an EU member) or specific measures for the state to better reflect its particular circumstances and priorities on fisheries.
15 : Budget
How Scotland would approach the EU budget
Context
The EU budget finances European programmes ranging from research and higher education to regional development and the Common Agricultural Policy, along with the EU institutions themselves. It takes two forms: the Multiannual Financial Framework (lasting for 7 years) and an annual budget. Much attention is given to whether each Member State is a net contributor to or beneficiary of the EU budget. The net contributors are usually either large states or Northern European states (or both). While the EU budget is funded in large part through these national contributions, it is supported by other “own resources”, such as customs duties and a percentage of VAT receipts. In any event, the debate over contributor versus beneficiary is somewhat artificial, as many of the benefits of the EU are difficult or impossible to quantify and not part of the budget itself.
Questions
- Would Scotland reasonably expect to be a net contributor to the EU budget, at the point of its accession to the EU or in subsequent years?
- How would the Government justify Scotland’s financial contributions to the EU budget, from direct national contributions and wider own resources?
- What would Scotland’s outlook be for areas of major EU expenditure, including structural funds and the Common Agricultural Policy?
- What would Scotland’s outlook be for research and development budget programmes, including research and higher education funding?
- How would the Government effectively advocate Scotland’s interests for the Multiannual Financial Framework already in force at its accession?
Insight
At cursory glance, it is probable that Scotland would be a net contributor to the EU budget, either at the point of accession or in subsequent years, as it would be a relatively wealthy member in GNI terms compared to its counterparts.17 In any case, Scotland would make financial contributions to the EU budget while also receiving EU funding on areas such as research, higher education, culture, agriculture and the environment. As part of the final stages of the accession process, Scotland would need to be incorporated into the existing Multiannual Financial Framework in force at the time, so the scope for the usual budgetary negotiations would be limited. In future rounds, Scotland would be placed to advocate its positions on the EU budget along with the other Member States.
16 : Referendum
How Scotland would give approval to EU accession
Context
It has become standard practice that a candidate state holds a referendum on EU accession before finalising the process and joining the EU. The EU does not require such a referendum. Instead, it expects the candidate to ratify the treaty of accession in accordance with its own “constitutional requirements”, as they may be. It is possible that, depending on its provisions, Scotland’s constitution could render a referendum on joining the EU necessary. It is normal for an EU accession referendum to be held once the negotiations have been completed and the treaty of accession has been signed. In that way, the electorate of the candidate state can vote on the exact terms of membership agreed during the accession negotiations. An accession referendum is therefore less a decision on whether to join the EU in principle and more a verdict on whether to become an EU member on the basis of the agreement embodied in the treaty of accession.
Questions
- Would Scotland hold an EU accession referendum?
- If yes, would the referendum be held before or after the completion of Scotland’s EU accession negotiations and the signature of the treaty?
- If yes, what case would the Government make for why the electorate should support Scotland becoming a Member State on the terms agreed?
- If no, how would the Government justify Scotland joining the EU, including the major constitutional change involved, without express public approval?
- If no, how would the Government explain to the EU institutions and the Member States why it was unwilling to hold an accession referendum?
Insight
Becoming an EU Member State would be a major constitutional decision that would shape many aspects of the Scottish state. It would be logical that the people should give their express approval on EU membership before Scotland joined the EU. While a referendum would not be mandated by the EU, it would have the general expectation that Scotland would hold one. The absence of a referendum would undoubtedly lead many in the EU to wonder why Scotland felt it unwelcome or unnecessary to follow this standard practice. Approval for EU accession could involve a parliamentary vote or legislation, alongside a referendum or in place of one. Public consensus on EU membership would be vital to Scotland’s role in the EU, so it would have to be secured in some way.
17 : Parliament
What role Scotland’s parliament would have on the EU
Context
A foundational part of EU membership is the voluntary transfer of competence to the European level. Through the EU treaties, the Member States grant power to the EU institutions to make decisions and conduct policies for the mutual benefit of those in the EU. That transfer of competence often empowers the national executive over the national legislature. While the parliament now has reduced competence on EU-related areas, the government performs legislative functions, given that the Council of the EU is co-legislator (or sometimes the sole legislator) of the EU. The national parliaments of the Member States have responded to this phenomenon in different ways. Some have been content to allow their powers to diminish, while others have developed mechanisms to scrutinise the actions of their governments at EU level and to direct them.
Questions
- How would the Parliament scrutinise the work of the Government on EU affairs, including its positions and votes in the Council of the EU?
- How would the Parliament contribute to EU policy-making, including assessing EU legislative proposals and formulating opinions on them?
- Would the Parliament establish a dedicated committee on EU affairs, separate from wider European and international relations?
- Would the Parliament have the power to direct the Government to take a specific position or to vote in a particular way in the Council of the EU?
- How would the Parliament cooperate with the other national parliaments in the EU, including in relation to EU legislative proposals?
Insight
In the event of Scotland becoming an EU member, the Parliament would have to decide what role it would exercise on EU membership. While the constitution could provide some direction in this regard, the Parliament would ultimately have to choose whether to be active or passive on EU affairs. Given the scope of EU policies and their impact on Scotland, the state would be best served by the Parliament electing to pursue a proactive approach to EU business. Like its counterparts have done, the Parliament could establish a dedicated committee on EU affairs (which would be distinct from a committee scrutinising wider European and international relations). It could develop procedures to mandate the Government’s actions in the Council, reclaiming some influence in that way.
18 : Public
What role Scotland’s public would have on the EU
Context
For a Member State, the EU is part of its domestic constitutional order. Under the principle of primacy, EU law takes precedence over conflicting national law. Accordingly, positive EU membership depends on sustaining public support and ensuring that the democratic mechanisms associated with EU membership, at European and national levels, are utilised to the full extent. EU citizens directly elect the European Parliament, which is co-legislator of the EU along with the Council of the EU. They also elect their national governments, which comprise the Council. At the same time, it is incumbent on governments to develop real means of taking public views into account on EU affairs and providing avenues for the public to contribute to how the EU works. Support for EU membership should never be taken for granted, and public confidence should be renewed.
Questions
- How would the Government take meaningful account of public views on EU affairs in its exercise of EU business and participation in EU policy-making?
- What mechanisms, such as a citizens’ forum or petitions system, would be able to the public to contribute to Scotland’s role in the EU?
- Would Scotland hold referendums on future EU constitutional reform, such as major EU treaty change, to secure public approval before ratification?
- If yes, what criteria would be applied to determine whether particular reforms or treaty change would require a referendum in Scotland?
- If no, how would the Government justify Scotland accepting major reform, and transfers of competence to EU level, without express public approval?
Insight
As an EU Member State, Scotland would need mechanisms to maintain public support for EU membership. The Government or the Parliament could institute a standing citizens’ forum on EU affairs or a dedicated petitions system for EU matters. More fundamentally, Scotland’s leaders would have to demonstrate their roles and successes in EU policy-making to the public, while being honest about the compromises inherently required to enable the EU to function. It would be important to clarify whether Scotland would hold referendums on future EU constitutional reform. The constitution might make such referendums necessary, depending on its provisions. Successful EU membership would depend on making EU affairs an everyday aspect of public life in Scotland.
19 : Agenda
What Scotland’s agenda for EU affairs would be
Context
The EU agenda is perpetually voluminous, with internal and external challenges driving new laws, policies and initiatives. Without adequate systems to keep up to date and to prioritise matters of national relevance, the pace of change can sometimes pose difficulties for smaller EU members, as Scotland would be. To be effective in the EU, Scotland would need clear objectives for policies central to its own interests and to the future of the EU. It would need means of setting those objectives, involving the Government, the Parliament and others. Besides the traditional issues of the Single Market and the eurozone, a consequential and overarching topic at present is the EU’s emerging role as a global and geopolitical actor. Scotland would need positions on all these questions.
Questions
- What priorities would define Scotland’s approach to the core policies of the EU, including on the Single Market and Economic and Monetary Union?
- What priorities would govern Scotland’s approach to the evolution of the EU as a global actor, including on defence, security and development?
- What vision would the Government articulate for the future direction of the EU and Scotland’s role in realising those ambitions?
- What unique contributions would Scotland aim to make to the development of the EU’s laws and policies which would define its European reputation?
- How would Scotland, including the Government, the Parliament and others, contribute to ongoing debates on the future of Europe?
Insight
To be successful in the EU as a small Member State, Scotland would have to be confident in its priorities for EU affairs and in its vision for the future of the EU. Both should be grounded in Scotland’s values and interests, taking into account the realities of European integration and the contemporary challenges facing the EU. Where Scotland identified areas in need of reform, it should be precise, constructive and pragmatic. By contrast, nebulous calls for EU reform in general terms would not be productive. While it would have to respond to the demands on the EU of the day, Scotland should seek to be proactive on select elements of EU business, making contributions to the development of the EU that would build a positive reputation for the state. The Government, the Parliament and others should also participate in strategic debates on the future of Europe.18
20 : Strategy
What Scotland’s strategy for EU membership would be
Context
A cogent vision for Scotland’s role in the EU would need to be accompanied by an astute strategy to deliver it. The Government would have to formulate that strategy by taking into account its objectives for EU policies and the evolution of Scotland as a Member State in the initial years of membership. Even as an EU member, Scotland would still have limited resources, which it would have to deploy intelligently in the service of its EU strategy. The Parliament would have to determine what role it should play in the creation of Scotland’s EU strategy. Instead of the Government alone drafting the document, it could be created by input from all mainstream political parties in the Parliament. Such an approach would provide cross-party support for the state’s EU strategy, which could ensure continuity in case of a change of government during its time horizon.
Questions
- How would the Government formulate its strategy for EU affairs once Scotland had completed its EU accession process?
- Would the Government adopt multiannual EU strategies to identify its priorities for EU policy-making and to focus its efforts in EU affairs?
- What role would the Parliament exercise in the development and implementation of Scotland’s post-accession EU strategy?
- How would Scotland work with fellow Member States and others to advance common positions connected to EU policy-making?
- How would Scotland build influence in the EU institutions and with the Member States to be successful in achieving its objectives for EU affairs?
Insight
As a Member State, Scotland would be one piece in the wider EU puzzle. Central to effective EU strategy would be to understand that position and to work from it as the starting point. While Scotland would not be able to secure every first-choice outcome in EU policy-making, it could achieve policy successes through implementing suitable strategy. Scotland would build influence within the EU institutions over years and decades. It would participate in alliances with fellow members to advance joint positions. It would forge cooperative partnerships with state and non-state actors. It would adjust to the workings of the Council of the EU and the European Council. Overall, Scotland would establish a distinct profile in Brussels and beyond to play its part in shaping the direction of the EU.
Review
The 100 Questions on Scotland and EU Membership
RATIONALE
- What case would the Government and others make for why Scotland should join the European Union as an independent state?
- What would the political rationale be for Scotland joining the EU?
- What would the economic rationale be for Scotland joining the EU?
- How would Scottish EU membership be different compared to Scotland’s former participation in the EU as part of the United Kingdom?
- How would the rights and obligations of EU membership affect Scotland’s constitution, politics and policies as a state?
Process
- How would Scotland prepare, during the transition to statehood and before its application, to undertake the normal EU accession procedure?
- How would Scotland demonstrate its evolving ability to fulfil Copenhagen criteria at the point of application and during its accession process?
- What principles would guide Scotland in its pursuit of EU membership and its participation in the EU accession procedure?
- What priorities would Scotland establish for its pre-accession relationship negotiations and its accession negotiations?
- How would Scotland advocate its particular interests in its EU accession process while avoiding argument with the EU about the latter’s own rules?
Timescale
- What reasonable estimate would the Government give of how long it would Scotland to join the EU, from point of application to point of accession?
- What target, measured in months and years, would the Government set for the completion of Scotland’s EU accession process?
- How would Scotland prepare itself, during the transition to statehood and before its application, to minimise the length of the accession process?
- How would Scotland enhance its convergence with the acquis, before and after its application, to minimise the length of the accession process?
- How would Scotland implement the recommendations of the EU institutions in a timely fashion to minimise the length of the accession process?
Pre-Accession
- What form of pre-accession relationship would Scotland seek with the EU?
- How would Scotland ensure that its pre-accession relationship, or an early version of it, were agreed and operational at the point of independence?
- Would Scotland intend to negotiate its pre-accession relationship during the transition to statehood following an independence referendum?
- If yes, how would Scotland secure the agreement of the UK Government and EU Member States to negotiate before it was an independent state?
- If no, how would Scotland avoid a political, economic and legal vacuum in its relations with the EU at the point of independence?
Acquis
- How would Scotland achieve compliance with the acquis communautaire by the time of its accession to the EU?
- How would Scotland assess its own compliance with the acquis, before its application, during the negotiations and after the signature of the treaty?
- How would Scotland demonstrate its alignment with the acquis to the EU institutions, particularly its initial high alignment in relevant areas?
- What derogations, transitional measures or other special arrangements would Scotland seek relative to the acquis in the negotiations?
- How would the Government justify those special arrangements which it requested to the EU institutions and the Scottish public?
Personnel
- How would Scotland recruit sufficient qualified personnel with expertise in the politics and institutions of the EU to facilitate its EU accession process?
- How would the Government integrate new staff with various specialties, including Scots previously resident abroad, to support EU accession?
- Would Scotland establish a diplomatic service, distinct from the rest of the civil service, to gather and deploy personnel with diplomatic expertise?
- How would Scotland increase the availability of suitable education opportunities within the state to produce qualified EU affairs candidates?
- How would Scotland ensure that sufficient qualified Scottish candidates were available for the EU civil service after the signature of the treaty?
Institutions
- How would Scotland build lasting relationships with the EU institutions to support its EU accession process and future role as a Member State?
- How would Scotland work with the European Commission, including the DG Neighbourhood and Enlargement Negotiations, to facilitate EU accession?
- How would Scotland work with the Council of the EU collectively and the Member States individually to sustain momentum for EU accession?
- How would Scotland work with the European Parliament, including the Committee on Foreign Affairs, to ensure backing for EU accession?
- How would Scotland enhance its presence in Brussels to enable effective interaction with the EU institutions throughout the accession process?
Members
- How would Scotland establish high-quality bilateral relationships with each of the existing EU Member States as a new European state itself?
- What alliances and partnerships could Scotland forge with different Member States to advance its vision for the future direction of the EU?
- Would Scotland open an embassy in every EU Member State?
- How would the Government conduct effective bilateral triangulation with Member States across Edinburgh, Brussels and national capitals?
- How would Scotland overcome the reluctance of some Member States to enlarge the EU further, generally or without institutional reform first?
Finances
- Would Scotland reasonably expect its public finances to align with peer Member States and EU averages by the time of its accession to the EU?
- If yes, how would Scotland satisfy the economic policy acquis, including the national debt and deficit rules of the Stability and Growth Pact?
- If no, what special arrangements would Scotland seek relative to the economic policy acquis in the negotiations?
- What impact would the establishment of the Scottish state have on the public finances and Scotland’s ability to fulfil the economic policy acquis?
- How would the requirements of the economic policy acquis affect the shape and evolution of Scotland’s fiscal policy?
Currency
- Would Scotland have a currency by the time of its accession to the EU?
- If yes, how would Scotland satisfy the monetary policy acquis, including, for instance, the independence of the state’s central bank?
- If no, how would Scotland approach the monetary policy acquis, given that it would have neither a state currency nor a full monetary policy?
- If no, what special arrangements would Scotland seek relative to the monetary policy acquis in the negotiations?
- If no, what plan would the Government propose to the EU institutions for the establishment of a Scottish state currency, including the timetable?
Euro
- Would Scotland elect to fully participate in Economic and Monetary Union and to adopt the euro at some point in the years following EU accession?
- If yes, how would Scotland complete the stages of Economic and Monetary Union, including the envisaged timetable for formal euro adoption?
- If no, how would Scotland relate to the eurozone, including the wider aspects of Economic and Monetary Union, such as the banking union?
- What would the monetary, economic, political and strategic consequences be of Scotland adopting the euro versus those of not adopting it?
- Would Scotland eventually hold a referendum to determine whether to complete the stages of Economic and Monetary Union and adopt the euro?
Schengen
- Would Scotland seek an opt-out from participation in the Schengen Area?
- If yes, what arrangement would Scotland propose to the EU institutions to facilitate its non-participation in the Schengen acquis?
- If no, how would Scotland implement border controls on the movement of people between it and Ireland and the UK once it joined the Schengen Area?
- Would Scotland seek to participate in the non-border aspects of the Schengen acquis, such as related police and judicial cooperation?
- How would Scotland secure the agreement of Ireland and the United Kingdom for it to participate in a revised Common Travel Area?
Borders
- How would Scotland implement EU law, including the provisions of the EU-UK relationship, at its borders with the United Kingdom?
- How would Scotland construct the requisite border infrastructure to conduct border controls on trade in goods with the United Kingdom?
- How would Scotland recruit sufficient qualified personnel to operate border controls and to implement EU law at its borders with the United Kingdom?
- How would Scotland mitigate the impacts of the introduction of border controls with the United Kingdom on their bilateral trade in goods?
- Would Scotland’s pre-accession relationship result in full border controls on trade in goods with the United Kingdom at the point of independence?
Fisheries
- How would Scotland prepare to implement the Common Fisheries Policy and the wider fisheries acquis by the time of its accession to the EU?
- How would Scotland manage the transition for fisheries up to EU accession, including the negotiations with the UK and the EU on Scottish waters?
- Would the Government seek changes to the Common Fisheries Policy or special arrangements on fisheries for Scotland in the negotiations?
- If yes, what changes or special arrangements would the Government propose to the EU institutions, taking into account Scotland’s geography?
- If no, how would the Government justify Scotland participating in the Common Fisheries Policy as it stood, given historic dissatisfaction with it?
Budget
- Would Scotland reasonably expect to be a net contributor to the EU budget, at the point of its accession to the EU or in subsequent years?
- How would the Government justify Scotland’s financial contributions to the EU budget, from direct national contributions and wider own resources?
- What would Scotland’s outlook be for areas of major EU expenditure, including structural funds and the Common Agricultural Policy?
- What would Scotland’s outlook be for research and development budget programmes, including research and higher education funding?
- How would the Government effectively advocate Scotland’s interests for the Multiannual Financial Framework already in force at its accession?
Referendum
- Would Scotland hold an EU accession referendum?
- If yes, would the referendum be held before or after the completion of Scotland’s EU accession negotiations and the signature of the treaty?
- If yes, what case would the Government make for why the electorate should support Scotland becoming a Member State on the terms agreed?
- If no, how would the Government justify Scotland joining the EU, including the major constitutional change involved, without express public approval?
- If no, how would the Government explain to the EU institutions and the Member States why it was unwilling to hold an accession referendum?
Parliament
- How would the Parliament scrutinise the work of the Government on EU affairs, including its positions and votes in the Council of the EU?
- How would the Parliament contribute to EU policy-making, including assessing EU legislative proposals and formulating opinions on them?
- Would the Parliament establish a dedicated committee on EU affairs, separate from wider European and international relations?
- Would the Parliament have the power to direct the Government to take a specific position or to vote in a particular way in the Council of the EU?
- How would the Parliament cooperate with the other national parliaments in the EU, including in relation to EU legislative proposals?
Public
- How would the Government take meaningful account of public views on EU affairs in its exercise of EU business and participation in EU policy-making?
- What mechanisms, such as a citizens’ forum or petitions system, would be able to the public to contribute to Scotland’s role in the EU?
- Would Scotland hold referendums on future EU constitutional reform, such as major EU treaty change, to secure public approval before ratification?
- If yes, what criteria would be applied to determine whether particular reforms or treaty change would require a referendum in Scotland?
- If no, how would the Government justify Scotland accepting major reform, and transfers of competence to EU level, without express public approval?
Agenda
- What priorities would define Scotland’s approach to the core policies of the EU, including on the Single Market and Economic and Monetary Union?
- What priorities would govern Scotland’s approach to the evolution of the EU as a global actor, including on defence, security and development?
- What vision would the Government articulate for the future direction of the EU and Scotland’s role in realising those ambitions?
- What unique contributions would Scotland aim to make to the development of the EU’s laws and policies which would define its European reputation?
- How would Scotland, including the Government, the Parliament and others, contribute to ongoing debates on the future of Europe?
Strategy
- How would the Government formulate its strategy for EU affairs once Scotland had completed its EU accession process?
- Would the Government adopt multiannual EU strategies to identify its priorities for EU policy-making and to focus its efforts in EU affairs?
- What role would the Parliament exercise in the development and implementation of Scotland’s post-accession EU strategy?
- How would Scotland work with fellow Member States and others to advance common positions connected to EU policy-making?
- How would Scotland build influence in the EU institutions and with the Member States to be successful in achieving its objectives for EU affairs?
