Scotland and the EU: Comment by NEIL WALKER

von Neil Walker

Once upon a time it seemed like a good idea to try to clarify the route (Article 48 or Article 49 TEU) through which and the terms on which (with or without UK opt-outs on Euro, Schengen etc) an independent Scotland might join the EU prior to the great referendum vote of September 18th. Clarity would have allowed for a more informed assessment ahead of ‘D’ day by all involved in the drawn out constitutional drama – a more considered appraisal of the risks attendant upon this or that choice. But clarity has not been forthcoming, and it is now far too late in the day to imagine that it will. In fact, clarity before the vote was probably always a naïve hope. As Sionaidh Douglas-Scott reminds us, there are no precedents for ‘internal enlargement’ of the EU following the separation of an existing member state, no Treaty provision directly in point, and no obvious forum outside of the political process where a definitive statement of the relevant law can be supplied or enforced. Add to that the understandable tendency of both sides to talk up those arguments that best serve their cause and the reluctance of European institutions to anticipate the correct approach, and it is no surprise that our sense of how to proceed remains legally unsettled. Of course, in the event of a ‘yes’ vote these questions will no longer be moot, and the law would henceforth come into its own. Matters unresolved would have to be addressed in ‘real time’ and the best sense of the relevant membership procedures and conditions thrashed out with prompt authority, though the requirement of constitutionally copper-bottomed ratification by all member states would still leave the process ultimately at the mercy of national discretion.

The search for advance clarity has proven not merely fruitless, however. Worse than that, it has tended to deflect attention from the deeper questions of political morality at play ...

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