There’s news that the UK Government has obtained legal advice is that an independent Scotland would not automatically be a member of the EU, but would need to apply for membership. See The Firm’s report here, and the Telegraph here. This follows an earlier row in the summer about the (non-) disclosure of the Scottish Government’s advice on the issue. That the UK has sought advice, or that that is the advice it has received, is not a surprise. The issue has been debated for a long time (I remember an iteration of it in 1993). The issue is not whether an independent Scotland would satisfy the EU’s criteria for membership, but whether it could become a member on the first day of independence. That the UK Government takes the view it doesn’t is important for two reasons.
First, it indicates a major problem for the SNP’s political strategy to secure independence. The ease of the transition to an independent state depends heavily on the extent to which UK is willing to co-operate with the process. That co-operation might, in principle, include helping Scotland to secure EU membership. The harder line from Whitehall is not surprising, and suggests that the UK Government is not prepared to acquiesce in smoothing the SNP’s path. The rougher the ride from a referendum Yes vote to statehood – and the more clearly the roughness of that ride is spelled out – the harder it will be for the SNP to secure a Yes vote in a referendum. EU membership is not the only likely ‘wicked issue’ in independence negotiations, and the tougher the UK signals its approach will be on those issues, the greater the difficulties for the SNP.
Of course, this approach is not risk-free for the UK Government either. The SNP’s argument since May 2011 has been based on the strength of the mandate it has from the Scottish electorate, to hold a referendum and then move to independence if that is the voters’ choice. Its authority is based on the strength of its support and the belief that Scottish voters see it as ‘their’ government, while the UK Government is something other. (Unionist Scottish politicians have of course resisted that claim, more actively so in recent weeks, though it’s a problematic argument for Labour as it means endorsing the authority of the Conservative-Lib Dem Coalition.) A UK hard line means that it’s vulnerable to claims of disregarding the preferred choice of Scottish voters, before they’ve had the chance to cast a referendum ballot. But no option is risk-free for UK at this point.
Second, if independent Scotland is not an EU member from day 1, the complexity of independence negotiations increases hugely. A large number of important and difficult issues about Scotland-UK relations – for example, relating to personal mobility, the right of Scottish citizens to use the English NHS, recognition of professional and academic qualifications, or for Scottish manufacturers or producers of food products to sell them on rump-UK markets – would be quickly and neatly resolved if Scotland were an EU member. If it were not, these would have to be separately negotiated and resolved, as happened with Ireland after 1922. Adding this to the negotiations will add to the time needed for their negotiations, their complexity, and the possibility of overall a less satisfactory outcome from a Scottish point of view.
What’s interesting about this legal advice is not the opinion itself. We don’t even know whether it’s from the Attorney General or Advocate General (the UK Government’s law officers, and politicians as well as lawyers), the Treasury Solicitor (its most senior lawyer-civil servant), Foreign & Commonwealth Office lawyers (the experts on issues of international law), or outside counsel. It’s the timing of its disclosure, and what that implies. One wouldn’t expect the run-up to a referendum to be a smooth course; the ride will get much bumpier yet.