Get out of jail free?

Here's a fascinating suggestion:

Scottish independence could see the UK kicked out of the European Union and forced to surrender its £3 billion annual rebate if it wanted to rejoin, a senior constitutional lawyer has told MPs.

Patrick Layden QC, a former Scottish Executive legal expert, warned that other EU countries could exploit separation to argue that the United Kingdom has ceased to exist as a member state.

Ministers in Edinburgh and London would then both have to reapply for membership, but he said they could be stripped of “ridiculous” privileges that governments on the Continent resent.

The assumption that an independent Scotland would remain automatically a part of the EU has been questioned before. But the notion that the rump of the UK -- which would still include Wales and Northern Ireland as well as Scotland -- would cease to be the same country in international law is rather more questionable. Would the UK cease to exist if there was a united Ireland? Surely not. Nor would an enlarged Ireland be a new country.

The West Germany that signed up to the Treaty of Rome in 1957 arguably ceased to exist in 1990. In the event of Scottish separation, there would be no new Parliament in Westminster (merely one with fewer MPs); no new government (unless the loss of Scottish members led to the fall of a Labour administration) and no new head of state. That's more than could be said for the Soviet Union when it was dissolved in 1992. It's government and constitutional continuity lapsed with it. Boris Yeltsin, who was already president of Russia within the USSR became the first president of a constitutionally autocephalous Russian Federation by default. It was legally a new country. But it seemlessly inherited the USSR's seat on the UN Security Council and the USSR's various treaty obligations.

So I don't think a shrunken "United Kingdom of England, Wales and Northern Ireland" would find itself outside the EU. And I'd be surprised if Scotland had any trouble being accepted, either. However, it's a nice idea to play with. What would happen if the European Court of Justice were to rule that neither of the two "new" countries remained a member state of the EU?

I've no doubt that such a scenario would be perceived by the British civil service as an ultimate nightmare. EU membership is so intertwined with the way the UK is run that unravelling it would be immensely disruptive and psychologically disturbing to the permanent government. They would advise ministers to avoid protracted accession negotiations at almost any cost, playing on politicians' fears about loss of influence and economic uncertainty. If other member states dragged their feet, surrendering the rebate and promising to join the Euro could be portrayed as the lesser of two evils.

Yet any new settlement would need to be put before the people in a referendum. The EU is unpopular enough as it is, and these days you need to be named Michael Heseltine or Peter Mandelson to not think that joining the Euro would be absolutely crazy. A proposed re-entry based on humiliating terms, leaving the UK shelling out yet more money and receiving even less in return would surely be rejected by a large majority. It's hard to see any government taking the risk.

On the contrary, there would be enormous public pressure to get a much better deal -- and even that would run a considerable risk of being rejected. If the UK suddenly found itself outside the EU, a large section of the press and the Parliamentary Tory party would be ecstatic (thank you, Scotland!) and immediately campaign to keep it that way. The government would have to make a positive case, not to stay in the EU but to join up, and to pay the (rebate-free) £6 billion per year membership fee. The case for not joining would be easy to make: look at Greece. Look at Spain. Look at Ireland.

An enforced departure from the EU, as an unintended consequence of Scottish independence, would provide a perfect opportunity to negotiate the kind of semi-detached, pick 'n' mix relationship that opinion polls suggest that most British (and certainly English) people would prefer. It would also be possible to renegotiate, and substantially reclaim, territorial fishing rights. In the early 1970s, Ted Heath was desperate to get into the Common Market at almost any price. That would no longer apply. The British economy may be in considerable difficulty at the moment, but so is most of the rest of Europe, and with the rise of China and Brazil the advantages of being shackled to the EU corpse are no longer as obvious as they were. An English government would be in an ideal position to play hard to get. Everything would be up for negotiation.

Nor could EWNI easily be portrayed as having "rejected Europe". It would merely, by a constitutional accident not of its doing, find itself suddenly outside the EU's structures. What a remarkable Get Out of Jail free card. For that reason, it is surely highly improbable that any European government (even the French) would deliberately bring Eurosceptics' greatest desire into fruition. It would, rather, be for the government of the rump UK to seize the opportunity, by declaring unilaterally England and Scotland are wholly new entities that would have to apply to join the EU. Time, I think, for Tory Eurosceptics to make a tactical alliance with the SNP.


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