José Manuel Barroso, European commission president, is anxious to
avoid a two-tier Europe by allowing Scotland to join using the UK's
opt outs Photograph: Vincent Kessler/Reuters
The unfolding controversy over a future independent Scotland's status
within Europe has reached a crisis point for the Scottish government:
in the dispute with commission president José Manuel Barroso, the
credibility of a significant chunk of its case is at stake.
But within this crisis are unanswered, pivotal questions which could
allow the first minister, Alex Salmond, some wriggle room. And there
is one puzzle: why would the European commission be getting so
involved at this stage, two years before the referendum?
One possible answer to that comes up in a thinktank discussion paper
published in October by the pro-EU integration European Policy Centre.
It says Brussels is unnerved by the dangers an independent Scotland
poses to its integration project. It will, the commission fears,
simply accelerate a two-tier Europe.
Barroso's interview with the BBC on Monday, in which he stated that an
independent Scotland would "obviously" have to apply to join the EU
afresh, as a new member state, was a severe blow to Salmond's previous
stance that membership would be automatic, and a seamless transition;
or at most a box-ticking exercise.
Barroso has driven that home in a letter to the House of Lords,
published on Tuesday by the Scotsman, asserting that "the separation
of one of part of a member state or the creation of a new state would
not be neutral as regards the EU treaties ... the EU is founded on the
treaties which apply only to the member states who have agreed and
ratified them."
But Barroso's views raise unanswered questions: is the president
seriously suggesting the EU might expel 5.2m EU citizens? After all,
recent European legal judgements say everyone living in the EU enjoys
that status.
Is it ruling out any transition arrangements protecting Scotland's
current rights as part of the UK until its new membership is agreed?
Would it allow talks to take place in parallel with Edinburgh's
independence talks with London – or if not exactly in parallel, in
close lockstep behind them?
Leaving to one side the other questions on whether Barroso's analysis
is correct at all (it is likely only the courts could settle that one,
if he holds to it), it is curious that Barroso is making his position
so clear now.
He had previously indicated that the commission would issue a clear
ruling on Scotland's future status and the EU rules if the UK
government, as a member state, asked for it: the UK has absolutely no
intention of doing so. That is Salmond's problem, not theirs, UK
ministers argue.
According to a discussion paper for the EPC published in October,
Accommodating an Independent Scotland: How a British-style
Constitution for the EU Could Secure Scotland's Future (see link here)
, the EU is "wary of the Scottish move for independence". It adds that
this is:
...not primarily due to the risk of 'independence contagion'. Rather,
the threat of Scotland demanding further opt-outs and exceptional
positions with a European Union that is already breaking up into a
two-tiered membership better explains the hostility.
It has a solution:
Instead of punishing Scotland, other members could fruitfully improve
their capacity to accommodate diversity. Ironically, perhaps, British
constitutional practice may offer the best answers.
Its authors, Arno Engel and Roderick Parkes, confirm that, in their
view, the commission is now hardening its stance partly because the
financial crisis is "reinforcing trends towards political separatism
across the EU". The mass march in Barcelona in September backing
Catalan independence reinforced that trend.
Their long, detailed paper suggests strongly they have already
canvassed opinion within Brussels and with other member states, and
they are not impressed by what they found. And usefully, they have
attempted to encapsulate the reasoning behind Barroso's resistance,
offering three alternative paths which Brussels might take, and
finally their own solution.
Firstly, they suggest Brussels would "disrupt Scottish independence to
prevent contagion". Under that scenario, EU officials are desperate to
avoid seeing the EU become "Balkanised":
In the matter of Scottish independence, the interest of the bloc is
deemed relatively clear: it lies in ensuring that the United Kingdom
remains whole. This is the best means for the EU to stem the contagion
effect of Scottish independence. In this regard, most attention has
focused on those member states with their own domestic separatist
movements.
So Cyprus, Greece, Romania, Slovakia and Spain would be anxious to
avoid allowing Scotland to set a precedent:
In the case of Kosovo, they have proved that they are prepared to act
on this interest. In setting a new precedent of punishing separatist
states within the EU, and thus quelling their own domestic
fragmentation, this group of states could expect a degree of support
from the EU institutions.
The European Commission and parliament will worry that European
integration could lose its appeal for federal or unwillingly divided
states in its Eastern neighbourhood and beyond, or will fall prey to
the nationalist pressures it was supposed to overcome.
Moreover, this group of states could also count on the support of
other member states. None has an interest in seeing the Union
'balkanise', and none professes much appetite to see a further step in
the EU's fragmentation: the loss of a powerful and cohesive member
state like the UK.
There is a second scenario where it could "contain the problem by
making an exception for Scotland". That is because:
It is clear [that] attempts to disrupt the progress of Scottish
independence could backfire. Governments on the mainland continent
would risk stirring up their own domestic separatist movements by
interfering in the affairs of other peoples. A punitive settlement for
Scotland would be understood as an expression of internal repression
too...
And that might easily stir up Euroscepticism in Scotland and the rest
of the UK, so the reasons for a compromise could be seen to grow. Can
Brussels work out a way of allowing a "seamless transition to
independence" while rejecting that for other regions?
It could, but that would come at a heavy cost to Salmond, warn Engel
and Parkes (see link here). An independent Scotland's demands to
inherit the UK's individual opt-out deals - including the EU rebate
and then, under John Major, on the euro - means it is asking to
maintain the historic positions first taken by the Tory many Scots
love to hate: Margaret Thatcher. Another irony.
So if an independent Scottish government claims it will be a better EU
member than David Cameron's sceptical, budget-cutting government,
Brussels might expect Scotland to prove it. Under this scenario, they
could be forced to drop those opt-outs as the price for a special deal
on membership. It cannot seriously argue to become a "new old" member
state:
if the Scottish executive [sic] argues that its historical and
constitutional peculiarities are the basis for independence from the
[rest of the UK], it will also have to revisit the historical and
constitutional grounds for the UK's exceptional status within the EU.
Scotland, as a some-time beneficiary of EU budgetary munificence and a
historical bastion of opposition to Thatcherism, will struggle to
justify the retention of the budget rebate deal won by the previous
Conservative government in the 1980s...
...Scotland, then, could only expect to retain its special status for
a limited period. The UK won its opt-outs on the basis that the EU of
today is not the union which it signed up to in the 1970s.
At its accession, the UK was joining an economic community and common
market, one based in large part on liberal principles of deregulation
and free trade. The EU of today is, by contrast, a political project,
with heavy regulatory influence over sensitive domestic issues such as
borders, asylum, budgets, and financial regulation...
... Even if Edinburgh is not put through the cumbersome process of
exiting the EU and then reapplying for membership, the other member
states would view Scotland's decision to remain in the EU as evidence
of its desire to join the union as it is today. That means that any
opt-outs which it does inherit would be transitional. They would be
retained so that Scotland can adapt to the EU, and would gradually
fall away.
Then there is the third option, say Engel and Parkes: the increasingly
rigid EU can change, fundamentally. Why "punish" a legitimate, normal
political development – a democratic, legal vote for independence?
That proves Brussels' weakness.
Why shouldn't it learn from Britain's history of asymmetric reform,
nimbly altering its constitutional structures to suit the time and
circumstance? If it does so, they suggest, the EU could expand more
easily and accommodate diversity, and presumably too, an independent
Catalonia or Basque country.
They write:
The need to punish what would in truth be a legitimate, even normal,
political development, points to a deeper weakness in the EU's set-up:
its inability to deal with variety within its membership. Truth be
told, it is not the threat of 'independence contagion' that primarily
motivates the majority of governments. It is the prospect of having
another troublesome member which does not engage properly with
European integration.
In its constitutional practice, the EU has sought to emulate the
approach to political integration typical of a nation-state like
Germany, where there is a clear constitutional hierarchy and a sense
of common destiny amongst its constituent parts. It is disappointing,
though not exactly surprising, that the EU has not looked to the UK
itself for lessons.
The UK famously offers a constitutional and political model that is
deeply at ease with asymmetries. [The] greatest strength of British
constitutional practice is its capacity to mediate between different
political communities, preventing the emergence of permanent
disparities and points of difference between them.
They conclude that the commission's "current obfuscation" on the
Scottish question "could have a happy ending, if used consciously". If
Scotland became independent, a smaller "rest of the UK" could have a
better, more flexible relationship with the EU.
"That tantalising possibility makes it important for the EU to develop
constitutional practice to keep the UK on board in the near term, and
to avoid the emergence of permanent structures of exclusion."
http://www.guardian.co.uk/politics/scottish-independence-blog/2012/dec/11/scottish-independence-brussels-policy
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