Amid all the sound and fury over what legal advice Alex Salmond received, or might receive, about Scotland’s position in Europe, it is worth remembering, that in the EU, 'legal advice', even from the most exalted lawyer, is just that. Advice.
It doesn’t actually matter what the lawyers say, because the European Union is a land of fudge, where important decisions are taken on the basis of political expediency, not precedents or rules.
EU laws and treaties get changed all the time, or are ignored if they get in the way of politics. One thing the EU is rather good at is solving problems when rules get in the way.
So if Scotland becomes independent and wishes to remain in the EU ways will most certainly be found to make that happen, because it would be in no-one’s interests to keep it out – even for a day.
A few examples will illustrate why laws, never mind legal advice, mean so little.
When the single currency was created, over a decade ago, there were "strict" criteria countries had to meet to join, such as a budget deficit below 3%, and public debt below 60% of GDP. Only the UK and Denmark negotiated opt-outs.
If these rules had been adhered to, Belgium and Italy would not have been allowed to join (debt over 100%), while France and Germany promptly broke the rules by over-borrowing. Sweden, meanwhile, meets all the criteria and is obliged by its accession treaty to join, but chooses not to. It’s all about politics, not rules.
What about EU membership itself? After the collapse of communism in central and eastern Europe, it was widely accepted that the former Soviet-bloc states should join the EU as quickly as possible, to buttress democracy and cement them into the European system. Those countries all had to go through a process of accession, in which they had to incorporate the acquis – all the EU’s laws and regulations – into their own legislation, so entry would be smooth and simple. The process was also meant to give the countries time – and lots of EU money – to transform their Soviet-style bureaucracies and root out corruption.
But what happened? They were all admitted in vastly different states of readiness, and several remain corrupt on such a scale that a UK-style parliamentary expenses scandal looks positively quaint. No matter: they "need" to be members, so they are.
It is worth noting that those who predict problems for Scotland’s continued membership of the EU are either opponents of independence within the UK or those in Europe who are desperate to avoid setting a precedent. Last month, Spain’s foreign minister, Jose Manuel Garcia-Margallo, declared that "Scotland would have to join the queue and ask to be admitted".
He said that not because it is true but because he is terrified of his own Catalan and Basque independence movements and wants to influence Scottish voters with crude scaremongering.
If Scotland votes for independence, it will be followed by negotiations on the practicalities of separation. If Scotland and England agree to be equal successor states, they will inherit the same EU rights and obligations. If not, it is inconceivable that the rest of the EU would oblige Scotland to leave and then apply to join, as this would cause massive disruption that is in no-one’s interests. The EU will want to solve the problem, not create new ones.
Why would Spain want its fishermen barred from a non-EU Scotland’s waters? Why would anyone ask Scotland to go through an accession – designed solely to bring national laws into line with European ones – when Scotland’s laws and institutions are already in line? EU directives in devolved policy areas are already transposed into Scots law, not "British" law.It has been a member for as long as England has.
With regard to the single currency, there is no reason why anyone should force Scotland to give up the UK opt-out, nor force it to join the euro if, like Sweden, it didn’t want to.
Nothing is set in stone in the EU. It is a giant piece of putty, to be moulded to every situation. As no country has ever split while being a member, there is no precedent for the situation that will arise if Scotland votes for independence. That being the case, a tortuous overnight Brussels summit will come up with a solution, just before daybreak. That’s how it always works.
ANGUS ROXBURGH is a former BBC europe correspondent based in brussels.
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