Scotland As Well As Brexit: Brave Oculus Or Timorous Beastie?

Steve Peers

At the Scottish National Party (SNP) political party conference yesterday, Scotland’s First Minister (Nicola Sturgeon) announced that the Scottish Government would number a draft of a 2nd independence plebiscite neb side yesteryear side week. She also announced that the Scottish regime would before long tabular array an alternative excogitation “to protect Scotland’s interests inwards [the EU] together with maintain us inwards the unmarried marketplace – fifty-fifty if the residuum of the UK decides to leave”. This would entail “substantial additional powers for the Scottish Parliament”, namely all the Scottish powers that “currently prevarication alongside the European Union – together with pregnant novel powers”, namely the ability to negotiate international treaties together with “greater powers over immigration”. 

Implicitly the Scottish regime is offering the UK regime a choice: negotiate to ensure that Scotland stays inwards the unmarried marketplace as a distinct business office of the UK, or confront around other independence referendum. I’ll examine the legal issues arising from these 2 options inwards turn, together with conclude alongside around broader observations virtually the Brexit procedure compared to the prospect of Scottish independence.

Scotland inwards the UK – together with the unmarried market

Is European Union unmarried marketplace participation possible if a) Scotland stays inwards the UK, together with b) the UK as a whole is non inwards the unmarried marketplace anymore? Some people receive got called this prospect a ‘reverse Greenland’, referring to the cope whereby Greenland left the European Union but Kingdom of Denmark stayed in. Given the huge differences betwixt Greenland together with Scotland, I suggest nosotros telephone phone this thought yesteryear a different name: say the ‘Scottish Economic Area’. I receive got written virtually this prospect separately inwards iScot magazine, but I volition summarise my points i time to a greater extent than here.

Only independent countries which are European Union members tin give the axe fully participate inwards European Union membership. But inwards theory at least, a business office of a non-EU Earth could participate inwards the internal market, fifty-fifty if the residuum of that non-EU Earth did not. Of course, the European Union together with the UK’s Westminster regime would receive got to consent to this inwards as business office of their post-Brexit treaty, together with it could only piece of work if at that topographic point was pregnant related devolution to Scotland, as the First Minister suggested.

What would it hateful inwards practical terms? The ‘single market’ consists of the gratuitous motility of goods, services, persons together with capital, which includes the liberty of institution of companies together with the self-employed. To facilitate all this, there’s extensive European Union legislation setting mutual standards for many industries. The unmarried marketplace also includes mutual rules on contest police pull together with province assist to industry. But a number of rules on other matters (such as merchandise alongside non-EU countries) are non necessarily business office of it. Full participation inwards the unmarried marketplace goes farther than a gratuitous merchandise understanding alongside the European Union which the Westminster regime currently seems probable to prefer, as it volition abolish to a greater extent than non-tariff barriers to the merchandise of goods together with services. For instance, most gratuitous merchandise agreements don’t give as much access to fiscal services markets as unmarried marketplace participation does. So if Scotland is inwards the unmarried marketplace together with the residuum of the UK is not, to a greater extent than fiscal services businesses may remain inwards Edinburgh, or displace from London to Edinburgh rather than to the EU.

Is this viable inwards exercise though? The slow business office would hold upwards applying European Union laws inwards Scotland which only receive got domestic effect, similar consumer, environmental together with labour law.  When it comes to laws alongside a cross-border number on merchandise betwixt Scotland together with the EU, such as fiscal services marketplace access, it would hold upwards necessary to define precisely when a line solid was based inwards Scotland (benefitting from unmarried marketplace participation inwards the Scottish Economic Area), together with when it was based inwards the residuum of the UK (subject to a less favourable merchandise agreement).

The most hard issues relate to motility of goods together with people. Would different rules on Scottish/EU relations compared to the relations betwixt the European Union together with residuum of the UK hateful that at that topographic point would withdraw to hold upwards edge controls betwixt Scotland together with the residuum of the UK? On this point, the Westminster regime has promised at that topographic point volition hold upwards no edge controls betwixt Northern Republic of Ireland together with the Republic of Ireland, fifty-fifty though that edge volition larn an EU/non-EU border.  Surely whatever cope is reached to this terminate could hold upwards adapted for occupation at the Scotland/England Earth edge too.

The Scottish regime would non receive got a direct piece of work inwards European Union decision-making. But it could hold upwards given the same piece of work as Kingdom of Norway together with Republic of Iceland receive got inwards their unmarried marketplace treaty alongside the European Union (discussed farther below): consultation on proposed European Union laws, the ability to reject them (although that’s champaign of report to the opportunity of retaliation), together with participation inwards the EFTA Court that decides on unmarried marketplace disputes as regards Kingdom of Norway together with Iceland. 

The proposition inwards a higher house is undeniably complex, although the whole Brexit procedure is complex anyway. However, the thought isn’t all or nothing: it would hold upwards possible inwards theory for Scotland to participate fully inwards parts of the unmarried market, rather than all of it similar Kingdom of Norway together with Iceland.

Independent Scotland

There are 2 possibilities here: a) Scotland as a fellow member of the EU, together with b) Scotland as a non-member of the EU, but alongside a unopen human relationship alongside it – perchance closer than the remaining UK (rUK). It is also possible that the latter choice could hold upwards an interim pace towards total European Union membership. Obviously whatsoever novel independence plebiscite raises issues also Scotland’s relations alongside the EU, but I volition focus on that point.

Scotland as an European Union Member State

I blogged on this number inwards 2014, during the Scottish referendum, but I’ll summarise together with elaborate on those views again. The basic signal is that the Treaties listing the Member U.S.A. yesteryear name, together with since the ‘United Kingdom’ is unlikely to hold upwards interpreted as automatically referring to Scotland alone, either an accession Treaty or a Treaty amendment is necessary to include Scotland’s refer as a member. In the yesteryear an accession treaty (as provided for inwards Article 49 TEU) has ever been used to add together a novel name; this would entail a negotiation process, which could perchance hold upwards fast-tracked inwards calorie-free of Scotland’s existing de facto European Union membership as business office of the UK.

However, that would enhance awkward questions, since the European Union unremarkably requires novel Member U.S.A. to apply Schengen together with the unmarried currency, together with powerfulness hold upwards unlikely to extend a portion of the UK’s budget rebate to Scotland. Having said that, a number of Member U.S.A. receive got got away alongside non applying the unmarried currency inwards practice.  It should hold upwards noted that the ‘deficit criteria’ which apply to joining the unmarried currency are non applied as a status of European Union membership, but only when a Member State later applies to bring together the unmarried currency itself.

The alternative route to membership is yesteryear Treaty amendment (as provided for inwards Article 48 TEU), which could also entail an amendment to Article 49 TEU to refer to the special instance of Scotland: “By way of derogation from the inwards a higher house paragraphs, Scotland shall accede to the European Union pursuant to the Treaty of Culloden”.  One possibility is a Treaty amendment which only replacing the words “United Kingdom” wherever it appears inwards the Treaties alongside “Scotland”; this would hateful that Scotland retained the UK’s opt-outs from the unmarried currency, judge together with domicile affairs together with Schengen (the rebate is laid out inwards secondary legislation).

When I suggested this possibility on Twitter a few months back, it was ridiculed yesteryear around as a “Tippex” approach to amending the Treaties. But as a affair of legal drafting, it is perfectly feasible, together with at that topographic point is a line solid precedent inwards the Treaty of Lisbon, which inwards Article 2(2) to 2(8) provides for a whole host of amendments just similar this: replacing “Community” alongside “Union” wherever it appears, for instance.   

Undeniably, however, either approach requires unanimity betwixt Member States, together with thence at that topographic point would hold upwards a political opportunity that accession or amendments are non easily agreed. In particular, around receive got argued that at that topographic point is a opportunity of a Castilian veto, because of concerns that Scotland obtaining slow European Union membership would inflame separatist tensions inwards Kingdom of Spain or other countries. On the other hand, around receive got argued that these concerns are misplaced. Either lawsuit also raises timing issues: what happens if Scotland is independent earlier or after Brexit, but is non yet right away an European Union Member State? The gap could hold upwards filled, at to the lowest degree inwards the interim, yesteryear around other organisation betwixt Scotland together with the European Union – an number to which I at nowadays turn.

Scotland as a non-EU Member State

The most obvious route for Scotland to consider would hold upwards membership of the European Economic Area (EEA), along alongside 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, as good as most European Union occupation together with environmental law. But Scotland would non hold upwards covered yesteryear European Union laws inwards other areas, notably agriculture, fisheries, taxation together with judge together with domicile affairs – although, similar Kingdom of Norway together with Iceland, it could sign split treaties alongside the European Union on these issues. Although the electrical flow EEA countries receive got joined Schengen, this is a split number (agreed years after the EEA), together with Scotland would receive got no legal obligation to create the same.

There would hold upwards no obligation to bring together the European Union unmarried currency, together with most significantly Scotland would hold upwards gratuitous to sign split merchandise agreements alongside non-EU countries, because the EEA does non comprehend the EU’s customs union. This is peculiarly of import because it agency Scotland could seek to retain a closer economical human relationship alongside the rUK than the rUK powerfulness receive got alongside the EU. Scotland could also “go global”, as Brexiteers say, yesteryear signing upwards to the free merchandise treaties already signed yesteryear members of the European Free Trade Area (EFTA: the EEA states plus Switzerland) alongside non-EU countries. And it would retain ability to sign its ain treaties on top (or to seek to retain its ain versions of the EU’s gratuitous merchandise deals alongside non-EU countries, as the rUK is probable to do). Scotland would receive got to larn a split WTO member, but could attempt to fast-track this yesteryear copying the rUK’s procedure of detaching from the EU’s WTO membership.

Is at that topographic point 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 bring 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 rootage 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 champaign of report to the jurisdiction of the ECJ, but a split torso called the EFTA Court: it unremarkably follows ECJ case-law, but its decisions are non ever binding. EEA fiscal contributions create non move direct to the European Union budget, together with would logically hold upwards recalculated inwards calorie-free of Scotland’s economical seat anyway).

The quaternary objection (size) is unconvincing: Scotland is broadly comparable alongside Norway, inwards item inwards damage of population, location together with economy. Finally, EEA states receive got a modest say on European Union laws, beingness consulted on draft European Union legislation together with having the choice to reject the application of novel European Union laws (although the European Union powerfulness retaliate if they create that). Anyway, this is for certain to a greater extent than say over European Union laws than Scotland would larn after Brexit as business office 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 choice includes things that Scotland seeks (single marketplace participation) spell steering clear of things it may wishing to avoid (the unmarried currency together with deficit criteria, Schengen, European Union merchandise policy alongside non-EU countries, together with European Union fisheries policy).  It also has the payoff of beingness potentially speedier: the European Union tin give the axe create upwards one's heed to apply treaties alongside non-EU countries provisionally, pending national ratification.

What virtually the prospect of a ‘Spanish veto’ over Kingdom of Spain joining the EEA? Here nosotros receive got actual show to suggest that it’s non rattling likely. For the European Union has lately concluded an association understanding alongside Kosovo – despite Kingdom of Spain (and 4 other Member States) refusing to recognise the independence of that Earth after its unilateral proclamation of independence. (Note: the EEA is also an association agreement, together with Member U.S.A. receive got a veto over the initial conclusion of such treaties).

Failing EEA membership, Scotland could silent seek other forms of relations alongside the European Union which may hold upwards closer than the rUK powerfulness enjoy, perchance as a non-EEA fellow member of EFTA similar Switzerland. Unless Scotland followed Turkey inwards joining the EU’s customs union, this would i time to a greater extent than leave of absence it gratuitous to simultaneously retain a strong economical human relationship alongside the rUK.

Scottish independence together with Brexit

Could the Brexit procedure hold upwards relevant for the Scottish independence debate – yesteryear analogy, or a business office of a broader political dynamic? Certainly many of the arguments of Brexiteers – at nowadays taken over yesteryear the whole Westminster regime – could hold upwards easily adapted to the Scottish debate. For instance, independence would permit Scots to ‘take dorsum control’ of far, far to a greater extent than of their laws together with finances than leaving the European Union volition create for the UK.

We tin give the axe also brand direct comparisons alongside sure issues. Does Scotland receive got a veto on UK taxation laws, similar the UK does inwards the EU? No. Does Scotland concord to over 90% of laws passed inwards Westminster, similar the UK does inwards the EU? No. Does Scotland receive got a veto on UK defense strength policy, similar the UK does inwards the EU? Hell, no.

The touching on of Brexit on the UK economic scheme tin give the axe hold upwards argued both ways. If Brexit seems to hold upwards benefiting the UK, together with thence arguably this shows Scottish independence is unnecessary; but as it arguably shows that it could also hold upwards painless. If Brexit seems to hold upwards hurting the UK, together with thence arguably this shows Scottish independence is needed to escape; but as it arguably shows that independence could hold upwards fifty-fifty to a greater extent than painful.

It’s for certain at nowadays ridiculous to scrap (as it was inwards 2014) that Scotland should remain inwards the UK if it wants to remain inwards the EU. Leaving the UK won’t automatically hateful joining the EU, as discussed above; but staying inwards the UK at nowadays for certain agency leaving the EU. While independence volition probable hold upwards disruptive, Brexit volition entail disruption anyway, thence it’s at nowadays arguable which is the ‘riskier’ together with which the ‘more stable’ choice. The plummeting pound may no longer hold upwards quite thence attractive a currency to retain.

Adapting the words of Brexiteers, the rUK would receive got an economical incentive to rapidly accomplish novel trading arrangements alongside Scotland. And if they spend upwards to, as an endeavor to punish Scots, then, i time to a greater extent than inwards the Brexiteers’ ain words, who would desire to remain inwards a Union that treats you lot similar that?

Given the changes inwards the UK since 2014, at that topographic point is a strong instance that around other independence plebiscite is justified. How would Scots receive got voted then, if they knew that a “Yes” vote would atomic number 82 to “hard Brexit” inwards a few years’ time?

As things stand, the electrical flow UK regime has non suggested whatsoever novel devolved powers for Scotland, together with silent less whatsoever telephone commutation alter to the UK’s constitutional structure. It has promised to consult the Scottish regime over Brexit, but non to render for differential links alongside the EU. It has prioritised a rattling depression internet migration target over the country’s economical interests; it has refused to permit command yesteryear the Westminster parliament (never heed Holyrood) over the cast that Brexit takes; it treats European Union citizens inwards the UK as “bargaining chips”; together with it aims to slash unusual students, expel unusual doctors together with (at i point) to refer together with shame employers of unusual workers. It has made no endeavor to accomplish out to the large minority of British voters – together with the large bulk of Scots – who voted “Remain”. Quite the reverse: its media allies refer to critics of Brexit as traitors who should hold upwards silenced together with imprisoned.

If at that topographic point is around other referendum, Scots volition receive got to create upwards one's heed if they would silent hold upwards “better together” nether these circumstances.  

Barnard & Peers: chapter 27

Photo credit: http://www.businessforscotland.co.uk/an-independent-scotland-would-get-a-better-deal-from-the-eu/

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