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Wednesday, January 11, 2012

Would EU law introduce border controls with Scotland?

The last time there was a formal English border with Scotland was under the Romans, although for some parts of the middle ages both England and Scotland may have wished for one. Since then, it's pretty much been come and go as you wish. Well, that may - at least hypothetically - soon change.

This week saw the debate over Scottish independence heating up again, in turn throwing up a number of questions about whether Scotland would have to negotiate new membership terms with the EU, and if so, how this would work. Most discussions have focussed on the euro - which all EU members that don't have an opt-out (which only the UK and Denmark have at the moment) - are required to join.

But there's another interesting twist. You might assume that if Scotland again became independent, the current open border would continue. Well, you could be wrong. This is because while the UK has a specific opt-out from the EU's common travel area (the Schengen agreement) under, the Amsterdam Treaty incorporated the Schengen agreement into EU law (Article 77, previously it was a stand alone agreement), meaning that whoever signs up to the full body of EU law, also signs up to Schengen. In other words, similarly to the euro, Scotland would not automatically have an opt out.

The EU considers that all states should join the borderless EU. This would pose a problem for an independent Scotland as the UK and Ireland have their own Common Travel Area and external borders - to help facilitate travel over the Northern Irish Border. If Scotland was in Schengen, England (and the rump UK and Ireland) would need to apply an external border and passport checks on the new frontier.

That is if Scotland was in the EU at all. The UK's membership does not extend to former members. Scotland would therefore have to negotiate for itself an opt-out from Schengen as a part of its accession process from outside the EU.

In addition to a Schengen opt-put, an independent Scotland would also have to negotiate:
  • Opt out from the Euro - so it could keep the English (or Scottish?) pound (the SNP says it want this option until the time is right to join the euro).
  • Possibly its own budget rebate so it is not unfairly penalised
  • A fair deal on fishing.
Plenty to play for in Europe, in other words, should Scotland wish to go down that path...


Anonymous said...

If Scotland becomes an independent state, it would continue to be part of the EU as would be the other part of the broken up UK. There will be a border if Either Scotland or the other part want to have a closed border.

So will happen with the upcoming break-up of Spain. Well, maybe Castile and Aragon may agree not to have a stupid closed border as have those member states that have an opt-out for the Schengen agreement.

Anonymous said...

The UK is a member of the EU not the geography of the UK - the membership extends only to the legal entity of the UK which would be the rump UK.

Under your reasoning if French Guiana or Reunion Island became independent from France they would remain in the EU - obviously nonsence. The Rump UK would also have a veto on Scotland joining!!!

Rollo said...

This is a big IF.
There may well be anti England sentiment, but I doubt that scots will vote anti UK.

Denis Cooper said...

You're assuming that the UK government would just stand aside and leave it to the Scottish government to sort out Scotland's new relationship with the EU.

It's most unlikely it would happen like that; it's much more likely that once there was a definitive decision that Scotland would separate from the rest of the UK, but long before the final separation, there would be negotiations for an EU amending treaty to accommodate the new situation.

Obviously as Scotland would still not be a sovereign state at that point it could not become a High Contracting Party to that amending treaty, which would be negotiated between the present UK and the other EU member states; it might be that representatives of the devolved government in Scotland would be allowed to participate in those negotiations - with the UK Parliament having first passed an Act to authorise their participation - and it might be agreed by all the EU member states that the treaty provisions relating to Scotland would not come into force unless it was approved by the devolved Scottish Parliament prior to ratification by the UK - once again with the UK Parliament first agreeing that should be the case.

There's little that can be taken for granted about what would be agreed through that amending treaty, beyond the near certainty that the political elites north and south of the border would make sure that both of the new countries ended up as EU member states, with a seamless transition from one EU member state to two separate EU member states at the precise instant of their final separation.

So it could be, for example, that the price demanded by some of the other EU member states for their agreement to the amending treaty would include either just Scotland, or both Scotland and the reduced UK, relinquishing the UK's present treaty opt-out from ever having to join the euro.

Anonymous said...

What id the UK was not in the EU - that would cause Scotland a bit of bother!

Anonymous said...

Lick off a campaign on 24 June 2014 - 700 anniversary of Bannockburn - replays of braveheart etc - could win just? Perhaps England should veto their EU membership?!! Also what of Northern ireland - not sure south ireland would be too impressed with the situation.

Anonymous said...

You know, the UK could grow up and join Schengen

Anonymous said...

I agree - England refusing to join Schengen is a pain for all. The UK's Border police seem incompetent, they can succeed in creating chaos at our Airports and other entry points, particularly Calais and the tunnel, inconveniencing legitimate travellers greatly, but seem to fail miserably at stopping illegal immigration. To boot, they are so arrogant in feeling they should not apologise for the chaos they create. I hope Scotland and why not Ireland, join Schengen and leave little old England to their splendid isolation. (PS did you realise your blog spell checker only recognised American spelling - maybe open Europe's real agenda is for us to become the 51st state)

Anonymous said...

I think when Scotland, perhaps Northen Ireland will join Schengen area, England will be left alone. England think that by not joining Schengen zone they can control elegal emigrants to entry UK, but thats so stupid to think that, because as more as you tie your borders more problems they will have. Came on England wake up.Use more sufficient ways to stop elegal emigrants. Oh I forgot if UK doesn't want to be part of schengen area, so when British people travel to Europe make them go to apply for a visa, because thats would put some sense into them.