Scotland's House Inwards Europe: Comments On The Scottish Government's Novel Proposals

Professor Steve Peers

Today, the Scottish regime published its long-awaited discussion paper on ‘Scotland’s Place inwards Europe’. Although, every bit the newspaper points out, that regime supports both European Union membership as well as Scottish independence, the newspaper focusses on what should plough over off inwards the lawsuit of Brexit amongst Scotland remaining business office of the UK. It would thus last quite dishonest for anyone to dismiss the newspaper every bit exactly ‘rejecting the plebiscite result’ (either the Brexit or the Scottish independence plebiscite result) or every bit ‘banging on almost independence’.

So what does the newspaper propose? Essentially it discusses 2 options: a) a UK-wide approach to Brexit that would address the concerns of Scottish voters (among others); as well as b), failing that, a distinct approach for Scotland. It also makes c) the declaration for farther devolution of powers within the U.K. inwards lite of the Brexit process. I’ll address mainly points a) as well as b), although there’s a necessary link betwixt b) as well as c) – ie a distinct approach for Scotland/EU relations post-Brexit would to a greater extent than patently require farther devolution. Some of this the world is covered inwards a previous weblog post, but it makes feel to revisit the issues inwards lite of the novel paper.

UK-wide answer to Brexit

The newspaper primarily argues that the U.K. should remain inwards the EU’s unmarried marketplace put every bit extended to non-EU countries similar Kingdom of Norway as well as Iceland, inwards the shape of the European Economic Area (EEA) treaty. It also argues that the U.K. should remain within the EU’s customs union, which governs European Union merchandise relations amongst non-EU states. As the newspaper rightly points out (at para 104), these are 2 carve upwards issues – it would last possible to bring together 1 but non the other. It’s sometimes argues that existence business office of the unmarried marketplace put entails existence business office of the customs union, but this is false, every bit the illustration of Kingdom of Norway (in the unmarried market, but non the customs union) as well as Turkey (in the customs union, but non the unmarried market) indicate. Although to engagement no non-EU province is business office of both the unmarried marketplace put as well as the customs union, in that location is no legal ground this cannot convey place.

While it’s sometimes argued that staying inwards the unmarried marketplace put is the same every bit staying inwards the EU, as well as would thus last a rejection of the plebiscite result, this is false. As already noted, the EEA understanding doesn’t include the customs union, as well as so the U.K. would last gratis to accomplish merchandise agreements amongst non-EU countries. It also does non extend to issues such every bit fisheries as well as agriculture (as the Scottish regime newspaper points out), every bit good every bit European Union unusual as well as defense strength policy, tax, as well as jurist as well as dwelling menage affairs issues. Kingdom of Norway as well as Republic of Iceland direct maintain agreements amongst the European Union on exactly about of these issues, such every bit participation inwards the Schengen opened upwards borders deal, but these are carve upwards from EEA membership.

Today’s newspaper tackles a number of the objections to EEA membership.  It correctly notes (at para 100) that EEA membership does non hateful existence bailiwick to the jurisdiction of the European Court of Justice (ECJ), which is a ‘red line’ for the U.K. government. However, it does hateful existence bailiwick to the jurisdiction of an EFTA Court, which unremarkably follows the ECJ where a illustration concerns an number within the ambit of the EEA treaty. It should last remembered, though, that exactly about EFTA Court judgments (those next references from national courts) are non binding, dissimilar European Union courtroom rulings.

As regards the UK’s budget contribution to the EU, it points out correctly (at para 103) that contributions past times non-EU EEA members are calculated differently (they don’t become straight to the European Union budget, for instance), as well as may halt upwards existence less for the U.K. than at present. On the number of immigration from the EU, the study fails to cite (at para 101) that a safeguard clause could last used to boundary European Union citizens coming to the UK. The Scottish regime would direct maintain no involvement inwards using this clause, but it could last invoked on a regional ground – for illustration allowing screening of project applications from European Union migrant workers at the employer grade inwards England as well as Wales. While the study notes that non-EU EEA countries are consulted on novel European Union laws within the ambit of the EEA, it doesn’t cite the possibility of non-EU EEA states rejecting the extension of those novel laws to them.

Some things could last clearer inwards the report. There’s a listing of areas also merchandise where it advocates U.K. retains a rigid human relationship amongst the EU, but it’s non ever clearly spelled out whether these are business office of the EEA or not. For instance, person constabulary (para 78), discrimination constabulary also sexual practice discrimination constabulary (para 79), European Union funding to Scotland (para 89), enquiry funding (para 92), refugee  issues (para 94) as well as criminal constabulary (para 91) are exterior the ambit of the EEA, as well as and so would demand to last the bailiwick of carve upwards deals betwixt the U.K. as well as the EU. Conversely, consumer constabulary (para 79) as well as job constabulary (para 81) are within it. The study does brand clear that many – though non all – European Union environmental laws are within the ambit of the EEA (see para 93).

In particular, piece the study advocates an interim scheme for the U.K. leaving the EU, it does non suggest whatever details of what that powerfulness entail – as well as does non hash out the possibility, favoured past times exactly about ‘liberal Leavers’, that the U.K. could remain inwards the EEA exclusively on an interim basis, pending negotiation of a comprehensive merchandise agreement.

Scotland-only approach

The study correctly notes that in that location is already geographical asymmetry (ie different application of the constabulary inwards different parts of a country), non exclusively inwards the application of European Union constabulary to parts of Member United States as well as inwards the application of the EEA, but also inwards the UK’s planned answer to Brexit. It proposes to follow the same approach to Scotland, which would participate inwards the EEA either via ‘sponsorship’ of the U.K. or straight (while yet business office of the UK).

This raises issues concerning the crusade of goods or people betwixt Scotland as well as the remainder of the UK, if the 2 direct maintain different arrangements every bit regards relations amongst the EU. Some of these issues are discussed inwards item inwards the paper, but it largely relies on controversy that whatever solutions are constitute for the Northern Ireland/Irish Republic border (as promised past times the U.K. government) tin last applied past times analogy to relations betwixt Scotland as well as the remaining UK.

Comments

The prospect of the U.K. staying inwards the EEA (or a comparable system) is legally much easier to adapt as well as negotiate than whatever Scotland-only approach to Brexit. However, every bit the study notes, EEA membership seems unlikely for political reasons, since the U.K. regime seems unenthusiastic almost whatever obligations regarding the gratis crusade of people. On this dot the study could direct maintain done to a greater extent than to address these concerns past times discussing the possible usage of the EEA safeguard clause. It could also at to the lowest degree direct maintain advocated participation inwards the EEA every bit an interim measure, given that the U.K. regime inwards recent weeks has appeared increasingly opened upwards to the thought of exactly about interim scheme next Brexit inwards principle.  

Equally – although the study does non hash out this – a Scotland-only approach has political problems, every bit neither the U.K. regime nor the remaining European Union seem willing to hash out the idea.

However, the Scottish regime powerfulness inwards theory direct maintain to a greater extent than success amongst its proposals relating to devolution. As it correctly notes, devolution issues are jump to arise in 1 lawsuit the Westminster Parliament examines the planned ‘Great Repeal Bill’ side past times side yr – since the conversion of European Union constabulary to U.K. constabulary necessarily raises the enquiry of how this procedure relates to the powers of the UK’s devolved governments. And on this issue, in that location is mayhap to a greater extent than broad political support: the newspaper refers inwards special to the involvement of the Labour political party inwards rethinking devolution, whereas that political party does non seem interested inwards EEA membership for the whole U.K. as well as has non (to my knowledge) expressed whatever watch on Scotland-only solutions for Brexit.

In this context, in that location is the prospect of a coalition of opposition MPs as well as rebel Conservatives amongst a number of mutual (and linked) concerns almost the hereafter Bill: ruling out lower standards for surroundings as well as job law, addressing concerns of the devolved legislatures, as well as limiting the executive’s ability to better Acts of Parliament to trim back standards.

Beyond that is the specifically Scottish political context. If the Scottish government’s proposals on all 3 issues are rejected past times the U.K. regime – given the willingness of today’s study to convey both Brexit as well as Scotland remaining inwards the U.K. – this powerfulness last the occasion to debate that a farther plebiscite on Scottish independence is justified, although other factors (such every bit persuasion polling) volition also play a large usage inwards that decision.

Barnard & Peers: chapter 27

Photo credit: Business for Scotland

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