Cause and Effect in European Politics and Law

Holyrood's Three-Stage Menu for Westminster

Zhaneta Kuyumdzhieva, Adelina Marini, April 25, 2012

Everything started again in May 2011 when the Scottish National Party (SNP) won a majority in the Scottish Parliament with a promise to hold a referendum for the independence of the autonomous British region. With his very election, the leader of the party and first minister of Scotland, Alex Salmond, is sticking firmly to his promise and in the beginning of 2012 a discussion has started in essence of the perspective and legal possibilities for holding the referendum, what the question should be and what Scotland's devolution could bring.

Definitely Britain would need a good digestive to help it swallow whichever of the dishes with options, served in the past months by "its" Scotland. The menu consists of three dishes: the starter could be called "Independence", the main course - Devo Max, and the dessert - Devo Plus. And if we can guess the recipe for the first, the ingredients of the other two are a little more specific.

Devo Max (a maximum devolution) is an option, proposed by the ruling nationalist party and serves as an alternative to independence. It suggests Scotland to be given full fiscal autonomy but to remain within Britain. Westminster will continue to govern the issues of defence and foreign affairs, for which it will get certain amount of money from Scotland. While at the moment Holyrood* uses only 6% of the tax revenues, but at a local level 60% of the expenses are spent, with this scenario the tax revenues will remain entirely in Scotland.

Devo Plus is an option that came from the Reform Scotland movement and also proposes reforms in the fiscal policy but does not exclude Westminster from the accounts. The administration of Britain will gather national insurances, VAT and some small fees like TV licenses, for instance. Holyrood, though, will administer the income and corporate taxes and will keep its geographic share over the oil revenues.

Can Scotland hold a referendum?

Aside from the cuisine rhetoric, the problem with Scotland's future is of utmost political significance, but it would hardly be solved before 2014 - before the referendum Alex Salmond has planned. Aside from the case whether a referendum should put only the question of Scotland's independence or should it include the Devo Max option too, there is another problem - whether the Scottish government has the legal rights to hold such a referendum at all. According to the current legislation, the local parliament cannot hold a legitimate referendum. In order to avoid the validity of the voting to be disputed in the future, it is necessary an amendment in Scotland's Constitution to be made.

This is one of the conclusions from the consultations, which the government of Britain held and a report from which was published in the beginning of April 2012. During the consultation 2,857 written answers were sent by individuals, organisations and institutions. In an introduction to the conclusions PM David Cameron and his deputy Nick Clegg point out that they want the keep the United Kingdom united but admit that the Scottish government has an opposite position. London thinks that Scotland's devolution is not in its interest but promises that it will not stand on the way of holding a referendum. As appendix to the consultation, a draft for amendment of Scotland's main law is attached, concerning the holding of referenda. In the draft several conditions are outlined, the most important of which are: to ask only one question with a possibility of two answers; and the referendum to take place up to a specific date.

Will Scotland automatically become an EU member after devolution?

If we assume that the citizens answer with "YES" to the question whether they want Scotland to be independent from the United Kingdom, it must then be decided what course will the country take in its external policy. And more specifically - whether being an independent entity, the new country will become a member of the EU; whether once breaking the union with the British pound it would join the euro; whether it is possible to follow Norway's path and its club memberships to be reduced only to a membership of the European economic area.

Obviously the tests for the EU are not at all over yet. Aside from the debt crisis and the political issues surrounding the Western Balkans, the Union must take a look at Albion. The case of Scotland is unprecedented. So far the EU had not encountered a break-up of a member state and quite naturally it does not have ready answers or legal positions. The possibilities, entertained by international law, are three:
1. Only countries that had remained within the United Kingdom can be considered legal successors of the current agreements, treaty obligations and memberships in international organisations;
2. England, Northern Ireland, Wales and Scotland can keep these obligations separately;
3. All agreements and memberships can be suspended both for the United Kingdom and for Scotland.

The latter option seems unlikely, although the question is raised in the British public domain on a regular basis. Logical too are the expectations Scotland's accession to the Union to take place via the traditional way and not be granted automatically. And, although the EU membership of independent Scotland is still in the area of hypothesis, Spain refused to wait for that hypothesis to turn into reality, and demonstrated its position on the matter. Its disapproval, of course, is due to its domestic issues with Catalonia and the Basque territory. The actions Scotland has undertaken to dissociate from Britain could trigger an impetus for similar initiatives, Spain fears.

Scotland's devolution in this very moment in time is the last thing Spain could want, and the entire European Union at large, which is trying to survive under the pressure of the eurozone debt crisis and the regularly renewed debates about a division of the Union into "several speeds", practically into several unions.

*The Scottish Parliament, called after the name of the region in the capital city of Edinburgh, where it is situated.