Scotland, The Eu In Addition To ‘Indyref2’: The Legal Issues

Professor Steve Peers

Yesterday, Scotland’s First Minister (Nicola Sturgeon) announced the Scottish Government’s wishing to start the procedure of asset a 2d independence referendum, 1 time the principal elements of the UK’s terminal Brexit small town was known. This follows the UK government’s rejection of alternative suggestions set frontwards past times the Scottish regime inwards relation to Brexit – which I previously discussed here.

Obviously whatever novel independence plebiscite raises issues too Scotland’s relations amongst the EU. But since the 2d referendum, if it goes ahead, volition hold upwardly to a greater extent than closely linked to issues of Scotland’s European Union membership than the showtime one, it is a proficient instant to outline the principal legal issues – together with to address 1 specific betoken (on Scottish deficits equally a membership criterion) inwards a piddling to a greater extent than detail. Of course, this spider web log powerfulness good hold upwardly returning to these issues 1 time again inwards the months to come. (Some of the next is an updated version of my blog post from Oct 2016 on these issues.)

Scotland equally an independent non-EU country

An independent Scotland powerfulness not hold upwardly an European Union Member State, at to the lowest degree initially, but rather receive got an association amongst the European Union either equally an interim pace toward membership or indefinitely, inwards the effect of political difficulties obtaining European Union membership on either the Scotland or European Union side (or both). An association amongst the European Union powerfulness good hold upwardly closer than the human relationship betwixt the remaining UK (rUK) together with the European Union – specially inwards lite of the UK government’s intention to leave of absence the European Union unmarried marketplace together with customs union.

The most obvious route for Scotland to consider would hold upwardly membership of the European Economic Area (EEA), along amongst Norway, Republic of Iceland together with Liechtenstein. The EEA provides for participation of these non-EU countries inwards the EU’s unmarried marketplace freedoms together with all the European Union legislation related to them, equally good equally most European Union work together with environmental law. But Scotland would non hold upwardly covered past times European Union laws inwards other areas, notably agriculture, fisheries, taxation together with jurist together with habitation affairs – although, similar Kingdom of Norway together with Iceland, it could sign carve upwardly treaties amongst the European Union on these issues. Although the electrical flow EEA countries receive got joined Schengen, this is a carve upwardly number (agreed years afterwards the EEA), together with Scotland would receive got no legal obligation to produce the same.

There would hold upwardly no obligation to bring together the European Union unmarried currency (or whatever related constraints regarding deficits), together with most significantly Scotland would hold upwardly costless to sign carve upwardly merchandise agreements amongst non-EU countries, because the EEA does non encompass the EU’s customs union. This is specially of import because it agency Scotland could seek to retain a closer economical human relationship amongst the rUK than the rUK powerfulness receive got amongst the EU. Scotland could also “go global”, equally Brexiteers say, past times signing upwardly to the free merchandise treaties already signed past times members of the European Free Trade Area (EFTA: the EEA states addition Switzerland) amongst non-EU countries. (In principle, EFTA membership requires this). And it would retain ability to sign its ain treaties on top (or to seek to retain its ain versions of the EU’s costless merchandise deals amongst non-EU countries, equally the rUK is probable to do). Scotland would receive got to larn a carve upwardly WTO member, but could assay to fast-track this past times copying the rUK’s procedure of detaching from the EU’s WTO membership.

Is at that spot a downside to EEA participation? Some receive got argued against the UK joining the EEA due to objections to unmarried marketplace participation, the withdraw to pick out ECJ jurisdiction, continued contributions, its undue size compared to other members, or its lack of influence over European Union laws which would apply to it. Are these arguments transferable to Scotland? The showtime to 3rd objections are not, since Scots voted to remain inwards the EU, entailing the unmarried market, ECJ jurisdiction together with budget contributions anyway. (In fact, the non-EU EEA countries are non dependent plain to the jurisdiction of the ECJ, but a carve upwardly torso called the EFTA Court: it unremarkably follows ECJ case-law, but its decisions are non ever binding. EEA fiscal contributions produce non go direct to the European Union budget, together with would logically hold upwardly recalculated inwards lite of Scotland’s economical seat anyway).

The quaternary objection (size) is unconvincing: Scotland is broadly comparable amongst Norway, inwards special inwards price of population, location together with economy. Finally, EEA states receive got a little say on European Union laws, beingness consulted on draft European Union legislation together with having the selection to reject the application of novel European Union laws (although the European Union powerfulness retaliate if they produce that). Anyway, this is sure to a greater extent than say over European Union laws than Scotland would larn afterwards Brexit equally purpose of the UK. In fact, it’s to a greater extent than say than Scotland gets over European Union laws while the UK is an European Union Member State – given the marginal influence that Scotland has over anything that the UK regime does.

So the EEA selection includes things that Scotland seeks (single marketplace participation) piece steering clear of things it may wishing to avoid (the unmarried currency together with deficit criteria, Schengen, European Union merchandise policy amongst non-EU countries, together with European Union fisheries policy).  It also has the payoff of beingness potentially far speedier than joining the EU: the European Union tin create upwardly one's heed to apply treaties amongst non-EU countries provisionally, pending national ratification.

What close the prospect of a ‘Spanish veto’ over Scotland joining the EEA? Here nosotros receive got actual evidence to propose that it’s non really likely. For the European Union has lately concluded an association understanding with blogged on this number inwards 2014, during the showtime Scottish referendum, but I’ll summarise together with elaborate on those views again. The basic betoken is that the Treaties listing the Member United States of America past times name, together with since the ‘United Kingdom’ is unlikely to hold upwardly interpreted equally automatically referring to Scotland lonely afterwards independence, either an accession Treaty (Article 49 TEU) or a Treaty amendment (Article 48 TEU) is necessary to include Scotland’s advert equally a member.

The Treaty amendment route – which the Scottish regime called for inwards the previous independence plebiscite – could also entail an amendment to Article 49 TEU, if necessary, to refer to the special instance of Scotland: “By way of derogation from the to a higher house paragraphs, Scotland shall accede to the European Union pursuant to the Treaty of Culloden”.  One possibility is a Treaty amendment which but replacing the words “United Kingdom” wherever it appears inwards the Treaties amongst “Scotland”; this would hateful that Scotland retained the UK’s opt-outs from the unmarried currency, jurist together with habitation affairs together with Schengen (the budget rebate is laid out inwards secondary legislation). This is perfectly viable legally, together with at that spot is a theatre precedent inwards the Treaty of Lisbon, which inwards Article 2(2) to 2(8) provides for a whole host of amendments precisely similar this: replacing “Community” amongst “Union” wherever it appears, for instance.  

However, the European Union position at introduce is that it volition insist upon an accession procedure nether Article 49. This would entail a negotiation process, which could mayhap hold upwardly fast-tracked inwards lite of Scotland’s existing de facto European Union membership equally purpose of the UK. It should hold upwardly noted that when Republic of Iceland applied to bring together the European Union inwards 2010, the Commission’s opinion on accession took concern human relationship of Iceland’s EEA membership, together with indeed it was possible to close many negotiating chapters quickly, earlier Republic of Iceland withdrew its application inwards 2013. By contrast, only 1 out of 35 negotiating chapters has been unopen amongst Turkey, afterwards many years of talks.

Since unanimity of Member United States of America is required inwards whatever event, roughly receive got argued that at that spot is a withdraw chances of a Castilian veto of Scottish accession, because of concerns that Scotland obtaining tardily European Union membership would inflame separatist tensions inwards Kingdom of Spain or other countries. On the other hand, roughly receive got argued that these concerns are misplaced.

Another declaration is that the European Union powerfulness non hold upwardly willing to verbalize to Scotland until it is fully independent – although it should hold upwardly noted that the European Union has relations amongst Kosovo (see above), fifty-fifty though non all Member United States of America recognise that province legally.

This brings us to opt-outs. If the European Union is non willing to extend the UK’s electrical flow opt-outs to Scotland, this would inwards regulation hateful total participation inwards the unmarried currency together with jurist together with habitation affairs policies, equally good equally the loss of Scotland’s part of the UK’s budget rebate to Scotland. Each number is worth farther discussion.

The rebate is laid out inwards secondary European Union legislation which unremarkably is reviewed every vii years or so, together with must hold upwardly agreed unanimously. Scotland would thence hold upwardly inwards a seat to turn down its consent on the side past times side occasion unless a rebate were agreed.

As for justice together with habitation affairs, a distinction must hold upwardly made betwixt full general European Union policies together with those related to Schengen – the border-free area. On the latter point, at that spot is already a protocol to the Treaties which guarantees the continuation of the ‘Common Travel Area’ betwixt the UK together with Republic of Ireland – which volition proceed to apply afterwards Brexit. The details volition receive got to hold upwardly worked out, but the starting betoken legally is a requirement imposed upon the European Union to protect the mutual locomote area. Arguably this non only protects the Irish Gaelic seat concerning the Northern Republic of Ireland edge inwards Brexit talks, but also the seat of Scotland inwards potential accession talks. And whatever solution is establish for the isle of Republic of Ireland is thence transposable to the (rather shorter) edge betwixt Scotland together with England.

As regards other JHA issues, the UK already takes purpose inwards most civil together with criminal constabulary European Union measures, together with and then Scotland’s participation volition non alter anything. It should hold upwardly noted that Scotland would non receive got to pick out purpose inwards the planned European Public Prosecutor, equally that torso volition hold upwardly set upwardly past times agency of ‘enhanced cooperation’ together with novel Member United States of America do non receive got to participate inwards measures ready past times that European Union framework, which is a scheme allowing for the adoption of European Union constabulary past times a grouping of willing Member States, allowing the unwilling Member United States of America to remain out (see Article 20(4) TEU).

That brings us to the single currency – together with the related number of deficits. Scotland’s deficit upon independence is sometimes discussed equally if it tin hold upwardly calculated amongst absolute certainty. This is false: the actual deficit inwards practise would depend upon the price of Scotland’s arrangements amongst the rUK, including its part of rUK debt, equally good equally broader merchandise together with economical developments, including what currency Scotland uses together with the decisions on taxation together with spending which a Scottish regime takes upon independence.

While novel Member United States of America receive got inwards regulation an obligation to bring together the unmarried currency, it must hold upwardly noted that the European Union does non endeavor to enforce this obligation. Sweden has non joined since the currency was created inwards 1999; Poland, Republic of Hungary together with the Czechia receive got non joined since 2004, when they acceded to the EU; together with Romania, Republic of Bulgaria together with Republic of Croatia receive got non joined either.

As for the deficit criteria, at that spot is a requirement of 3% of gross domestic product inwards social club to join the unmarried currency. But that is non a requirement to bring together the EU. Otherwise why receive got together with then many novel Member United States of America non but joined the unmarried currency before long afterwards European Union membership?

In whatever event, this is easily provable: the Commission’s monitoring report on Republic of Croatia joining the European Union noted that it had 4% together with 5% debts inwards the years precisely earlier joining the EU. But its membership was yet approved.

Of course, a large deficit is going to campaign a province other difficulties too European Union membership, together with inwards the effect of European Union membership the dominion is inwards regulation that a province should aim for deficits less than 3% of gross domestic product afterwards joining. But this dominion is non absolute together with the European Union has piddling agency to enforce it: sanctions for breaching it tin only hold upwardly imposed upon Eurozone countries, together with the European Union has never imposed them anyway. There would hold upwardly strict weather condition imposed upon whatever bailout bargain (if necessary), within or exterior the Eurozone – but that would also apply exterior the EU, for countries that withdraw a bailout from the International Monetary Fund alone. Whether Scotland powerfulness receive got an unmanageable deficit is sure an of import number – but it’s quite imitation to say that “it can’t bring together the European Union unless its deficit is less than 3%”.

Photo credit: Daily Record

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