At the risk of putting my own head above the parapet and being whacked the same way Stuart Winton has been, I’ve a few comments about the idea of independence in Europe that I thought I might air.  But please be nice.

One of the bedrocks of the SNP’s independence message is that Scotland would have a stronger voice within Europe – and indeed, the wider world.  You only have to read some of the comments on Stuart’s post to see those arguments voiced.  As it stands, if Scotland wants a policy pursued at EU level, it must agree it with the UK government at Westminster, and that particular policy will only be pursued if the UK government itself sees it as consistent with the wider UK interest.  Certainly a system whereby Scotland would have its own voice at this level – and the opportunity to use it – would appear to be a more attractive notion.  However, is it as simple as declaring independence (making the assumption that there is a yes vote in a referendum) one day and speaking up in Europe the next?

It seems, the answer to this question very much depends upon who you ask.

The SNP’s team of constitutional lawyers indicate that there would be no difficulty with the above situation.  In their view, it is perfectly legitimate to consider that, while Scotland will be seceding from one Union (the UK) it has given no indication that it wishes to leave another (the EU) and thus would continue its membership as previously, with various amendments since it would now sit as an independent nation-state.  This would presumably entail increased membership of the European Parliament, voting and veto rights and various other aspects of membership.

Others indicate differently.  They consider that the UK is the member state of the EU (which no one would dispute) and as such, any component part of that union which separates itself would also avail itself of the various treaty obligations which the UK holds – including membership of the EU.  Thus, Scotland would have to re-apply for membership of all the international bodies to which it would like to align.  Needless to say, independence which brings no commercial ties to Europe would be a less attractive option than independence with full EU membership as a guarantee.  Indeed, many of the European Parliament staff members – of several nations – indicated that this was what they thought the case would be, especially since the Spanish (who face a similar situation with Basques and Catalans) would likely block the first option.

Then there is a third camp, which argues that, while Scotland would have to re-negotiate membership of the EU, so too would the rest of the UK.  The point in this case is that the member state which negotiated membership of the EU originally no longer exists in the same form as it did when it negotiated membership, thus all memberships become null and void.  While this third scenario would confirm Scotland on a similar legal standing to the rest of the UK, this would come as little economic consolation if both had to re-negotiate membership – with the added problem that this time it is likely that no opt-outs would be granted (meaning adopting both Schengen and the Euro as mandatory conditions of membership).

So – several opinions but no hard facts.  Part of the reason for this is that there is no legal precedent for what might occur should part of a member state decide to secede.  Of course there are cases of secession we can look to (Czech Republic and Slovakia, Kosovo, Montenegro – even Greenland) but none where membership of the EU has been at stake.  There is a flip side – East Germany was incorporated in Germany’s membership – but that was a distinct situation (which could perhaps be repeated should Northern Ireland ever merge with the Republic of Ireland, but that’s a different issue entirely).

From discussion with MEPs of all Scottish parties and others, as well as non-partisan voices in the European Parliament in Strasbourg, it is clear that nothing is clear in this areas.  Labour’s Catherine Stihler has asked the question of the European Commission on several occasions, with the only response being that they do not comment on hypothetical situations.

Well, this is no longer a hypothetical situation – we will have a vote on independence and a very real chance that Scotland will vote for it.  There are perfectly legitimate and rational arguments on either side of this debate, and it is one which does need much further exploration – and a clear answer will surely be required before we move to the referendum.  Indeed, the answer in the latter may well depend on the answer to the former.