Constituent parts of the UK and membership of the European Union
This was published under the 2010 to 2015 Conservative and Liberal Democrat coalition government
The position of an independent Scotland in relation to the EU was examined in a speech today by Foreign Office Minister Hugo Swire. Hugo Swire said Scotland “would have to apply to join the EU as a new state”
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May I firstly congratulate the Honourable Member for Glasgow North for securing this debate today and the Honourable Members from both sides of the House for their contributions to it and for the insight it has provided on this critical issue.
I need not remind Honourable Members that the United Kingdom’s membership of the European Union touches the lives of all our citizens.
Much of our trade is with the EU - total exports to the EU in 2011 were £234 billion. The single market underpins a large portion of our economy, allowing our businesses to trade freely across a market of some half a billion people. It facilitates collective action on issues that are too big for any one nation to tackle on its own. It magnifies our voice in the world on pressing international questions, such as the current situation in the Middle East or our concerns over Iran’s nuclear ambitions.
It is the United Kingdom, of course, that is the Member State: it is named in the European Union’s fundamental treaties as such. And it is the Government of the United Kingdom that must therefore negotiate in the EU’s various formations in the best interests of all its citizens.
That means we take into account the interests of the devolved administrations when formulating the UK’s position in EU negotiations which touch on the areas of policy that fall to the Scottish and Welsh Governments and the Northern Ireland Executive.
Benefits of devolution in EU negotiations
This is good for people and businesses in Northern Ireland, Scotland and Wales, as well as England. It means that they all have a strong voice in the formulation of policy that matters to them.
As such, the voting weight and the capability and credibility of the UK’s negotiations in the EU are mobilised in the service of all UK citizens. But that does not mean the devolved administrations are only involved in EU policy when we are coming up with an agreed negotiating position for the UK. This Government has been open to having Ministers from the Devolved Administrations in the room, where appropriate, during the negotiations themselves.
The current devolution arrangements allow the special circumstances of Northern Ireland, Scotland and Wales to be championed by one of the largest and most influential Member States. Scottish independence, with a complex accession negotiation and no guarantee of favourable terms of membership at the end of it, would inevitably put a stop to that. Those advocating splitting off from the UK need to be clear about what that means in practice and use evidence to set out their position.
Independence and EU accession
As we have heard this morning, some advocate a fundamental reworking of the existing constitutional settlement that so benefits the people of the UK.
Those who argue for an independent Scotland suggest that only independence will give their nation a voice in Europe.
Their argument is underpinned by the assertion - and it is only an assertion - that an independent Scotland would simply continue in membership of the EU, automatically inheriting the same arrangements that pertain to the UK now. We learnt only a few weeks ago, as we have also heard this morning - as the SNP was forced to reveal following a Freedom of Information request - that it had not previously commissioned any legal advice on an independent Scotland’s place in the EU. Yet the SNP has been making these assertions for several years while in Government. Many will find it absolutely astonishing that while seeking to make their case for splitting Scotland from the UK the SNP have been basing their facts on unfounded assertions rather than cold facts.
I do not need to remind honourable members that the UK has managed to negotiate, over the years, exemptions from membership of the euro and from the Schengen common visa area, ensuring that the UK can maintain control over its own monetary and border policies.
In addition honourable members will be only too aware of the importance of the UK’s rebate, negotiated with great skill and determination over twenty-five years ago. The rebate continues to ensure that the UK taxpayer is relieved of some of the burden of supporting some of the most imbalanced parts of the EU budget, which at the moment is of great concern to us all.
So, the UK has a permanent opt out from the euro, from the Schengen border free zone, a permanent rebate on our net contributions to the EU budget, a choice whether to join new EU laws in justice and home affairs and a protocol on how the Charter of Fundamental Rights applies to the UK.
But, if Scotland left the UK and applied to join the EU all of these would be subject to negotiation, and there is no guarantee whatsoever that Scotland would obtain any of these special rights that the UK currently enjoys.
It is precisely the UK’s weight and influence, as one of the largest Member States that has helped us to succeed in negotiating such arrangements. And Scotland, like England, Northern Ireland and Wales, derives enormous advantage from them. So I can see why the SNP is so keen to suggest to those voting in the referendum before the end of 2014 that they would simply continue in the event of independence, as if nothing had changed.
But the fact is that if Scotland became independent, everything would change. Independence is not simply an extension of the devolution arrangements that have worked so well. It is not merely a further point on the constitutional continuum. It is a fundamental change - a definitive split from the rest of the UK, an irreversible step. Independence would bring devolution to an end.
As set out in the FCO’s Memorandum to the Foreign Affairs Committee inquiry into a separate Scotland, independence would create a new state - one that would have to take its place on an already crowded international stage. England, Northern Ireland and Wales would continue the international legal personality of the UK; Scotland, having decided to leave the UK, would start afresh. The overwhelming weight of international legal precedent underscores this point. There are many examples of this: one is India and Pakistan - where following independence India continued the UN membership and Pakistan joined as a new state. Another is the USSR where Russia continued the legal personality of the USSR and the other Former Soviet Union states were treated as new states. There is Ethiopia and Eritrea; and there is Sudan and South Sudan.
That new state would need to decide which international organisations it wanted to belong to, in the context of its overall foreign policy. Obviously, it could not simply assert its membership of any of those organisations. The most likely scenario by far is that an independent Scotland would have to apply to join the EU as a new state, involving negotiation with the rest of the UK and other Member States, the outcome of which cannot be predicted. Scotland would no longer be represented with a permanent seat on the UN Security Council. Nor would a separate Scotland qualify for the G8 or the G20.
The UK Government is not alone in taking a factual and legally based approach to the issue. Jose Manuel Barroso, President of the European Commission made clear that “a new state, if it wants to join the European Union, has to apply to become a member like any state.” Recent correspondence between the Spanish Government and Commissioner Reding on this issue also supported this interpretation.
In simple terms, an independent Scotland could not just assert that it would be a member of the club - the other members would need to agree as well. The comments of the Spanish Foreign Minister, Jose Manuel Garcia-Margallo, to the Spanish Parliament on the 23rd of October must be noted: “in the hypothetical case of independence, Scotland would have to join the queue and ask to be admitted, needing the unanimous approval of all Member States to obtain the status of a candidate country.” What the Spanish Foreign Minister was referring to was the list of candidate countries wanting to join the EU - Macedonia, Iceland, Serbia, Montenegro and Turkey.
These are the remarks of a Foreign Minister of a major EU Member State with an obvious interest in this issue. The Scottish Government must be prepared to respond and be upfront about the uncertainties surrounding their position.
So, an independent Scotland would not simply ‘continue’ automatically in membership of the EU. The EU Treaties would have to be amended to allow Scotland to join; and that would involve a negotiation. What terms would it secure? Would Scotland be able to avoid the commitment to join the euro or the Schengen area that every new Member State since 1992 has taken on? The simple answer is: we do not know. None of this is clear.
In contrast to the SNP, the UK Government is taking a transparent approach to analyzing the legal issues, including by engaging with eminent legal experts. On 2 October this year, the Advocate General for Scotland - one of the UK Government’s three Law Officers - delivered a speech at the Edinburgh Centre for Constitutional Law, setting out the Government’s initial view on the legal questions. The Government has also made clear that we will provide detailed evidence and analysis so that people in Scotland can make an informed decision about whether to stay in the UK and the implications in leaving it. We will publish this analysis over the course of 2013.
It is the clear position of the UK Government that Scotland is better off in the UK, and the UK is better off with Scotland in it. We are backing up that position with a robust programme of analysis and evidence. Those advocating independence for Scotland are making assertions that suit their argument, with no solid foundation in fact.