It's always fish, isn't it...

The Scotsman today has an article bringing back the old chestnut that an independent Scotland would lose its membership of the EU. (The timing alongside today's European Treaty debate in Holyrood is somewhat suspicious.) Apparently the European Commissioner for fishing - yes, fishing, that great source of constitutional expertise - expressed this as his view. The European Commission as a body is wholly neutral, as its President has repeatedly stated in an official basis. No wonder - it is likely to be a judicial question when independence comes about, and not a political one.

Leaving aside the whole question of is it even relevant to comment on this on the back of one remark by a low-ranking Commissioner, this all seems to me to miss the point. I'll also leave aside the Salmond position, which I tend to agree with, that we would not have to apply.

But what's the fear over "applying"? Scotland applies EU law, meets EU conditions and is currently part of an EU member state. Even if there were a need - for either Scotland or the rest of the UK - to 'apply', since there would be no conditions to meet it would take less time than to fill out an application for a credit card. Montenegro would be an example in that respect - it did have to "apply" to join the UN on independence, but it was a pure formality, so the UN had an excuse for another expensive welcoming ceremony.

There is a fundamental difference though. Montenegro was a member state of a federation - Yugoslavia. Our friend the Commissioner may say that he thinks the UK would be the natural inheritor of the membership, but in this he is showing his lack of knowledge of the situation. The legal base for the existence of the UK in its present form is after all the 1707 Act of Union which was explicitly the marriage of equals. Were that to be repealed therefore, any sane court body would have to rule that either both Scotland and England-Wales-NI would inherit membership, or neither. The courts can't take away membership, so as the Americans say "do the math".

In fact, this raises another question that is frankly about as relevant. It doesn't allow newspapers to run front page scare stories though, so you don't hear about it much. Northern Ireland became part of the UK formally in 1801 - so joined after the 1707 Union. At the point of the dissolution of said union between Scotland and England-Wales, Northern Ireland could legitimately choose whether its 1801 political union obligation was inherited by Scotland or England-Wales. We could end up with an overseas province on day one of the new independent Scotland. Does this sound like a fantasy scenario? Probably, but then so does the idea of an EU without us.