Can Scotland remain in the EU? Paddy Bort assesses the options
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The priority of the Scottish government, as Nicola Sturgeon has repeatedly stated since Scotland voted 62% to 38% to stay in the EU, is ‘to protect Scotland’s place in the EU’. Throughout the referendum campaign, projecting a ‘positive case’ for remaining in the EU, and particularly since the shock result emerged on 24 June, Scotland’s First Minister has played a blinder. There was her initial response from Bute House that Scotland now ‘faces the prospect of being taken out of the EU against our will,’ a prospect she regarded as ‘democratically unacceptable’, and making clear that a second independence referendum was ‘on the table’ and ‘highly likely’ to happen – but that all options of Scotland remaining part of the EU would first be explored. Then came the emergency Cabinet meeting on 25 June, which gave her a mandate to lobby EU member states directly for support in ensuring that Scotland can remain part of the European Union. On 28 June the Scottish Parliament (with the exception of the Scottish Tories who abstained) backed that mandate and, on the following day, Sturgeon travelled to Brussels to meet with the European Parliament President Martin Schulz.
Biggest constitutional crisis in peace time
This beacon of leadership contrasts starkly with the utter chaos engulfing Westminster, where it became immediately clear that nobody had a clue how to proceed, and where the Tories and Labour have competed as to who can add more efficiently to the general confusion – after the UK electorate had sent out a seismic shock that was felt not just in the UK but right across Europe and beyond. £1,8 trillion were wiped off the stock market on a single day! And it became clear in an instant that, as Anthony Seaton wrote, ‘the poor and the weakest in society have been sold a miracle cure by the quacks and have swallowed poison.’ It was a case of turkeys voting for a very early, a Midsummer Christmas, following a bunch of public school demagogues masquerading as anti-Establishment rebels. If the ‘left behind’ in austerity-stricken areas, hammered by Tory cuts and a lopsided ‘recovery’, really thought that a UK outwith the EU and its single market, and run by Brexiteers, would improve their lot, they face a rough awakening.
Cameron and the Brexit vote have, in the words of Michael Heseltine, caused the ‘biggest constitutional crisis in peace time.’ Gibraltar, London, Northern Ireland and Scotland – all having voted to remain in the EU – are seeking special status with access to the EU institutions, either as part of the UK or independent of it. For Gibraltar (95.9% for Remain), an Iceland-type solution might be possible. For Northern Ireland, Sinn Féin has called for a Border poll in the wake of 56% having voted to stay in the EU – which could be facilitated by a United Ireland. Special status for London? And Scotland?
There is a clear mandate for Scotland to remain ion the European Union, and for Scots to remain EU citizens. But how can it be realised? A plethora of models are suggested – from a ‘reverse Greenland’ to federated structures and, ultimately, independence.
The two most clear-cut options would be if either the UK had a rethink and would not trigger Article 50 of the Lisbon treaty or Scotland having another referendum and opting for independence. The latter will be dealt with further down – the former seems unlikely, although there are indications that quite a few Leave voters already regret their decision. If there was a functioning opposition and it would repeal of the Brexit vote put in its manifesto for an early general election, that could have been an option. Or Westmister exercising its sovereignty (it may come as a surprise to some Brexiteers that it actually has that sovereignty – did they not claim that all decisions were made by faceless bureaucrats in Brussels?!) – and ignoring the ‘advisory’ referendum result – all of not just highly unlikely but practically impossible. In Theresa May’s dictum: ‘Brexit means Brexit.’
That the Scottish Parliament could stop that happening by withholding its legal consent, as a Brexit would clearly affect Scotland materially, is a nice soundbite, but as a legal instrument, withholding consent would not be strong enough to overrule Westminster’s sovereignty and ‘reserved power’ over foreign policy and thus not be able ‘block’ the UK’s exit from the EU. That has been clear since any demand by the devolved governments of requiring the consent of voters in all constituent parts of the UK for Brexit in order to trigger Article 50 was roundly rejected by the UK government. Triggering that article will start the clock ticking, and no vote of the Scottish Parliament to withhold consent will then stop the process.
Scotland remaining part of the EU while still being part of the UK would, as the European and Foreign Affairs Committee of the Scottish Parliament heard when taking evidence from a quartet of experts, be ‘extremely difficult’. The EU is a union of member states – peripheral regions opting out (like Iceland or the Faroe Islands) cannot easily be construed as a model for the UK. Is it imaginable that the UK left the EU, but parts of it remained? Not on present Treaty reality. The only argument in favour of that option is that we have indeed entered ‘uncharted territory’, that this is no longer ‘conventional politics’, and that new models may have to be found to accommodate differentiated constitutional preferences. Still, it looks far-fetched. In reverse, could the UK stay in the EU but declare that EU law was no longer applicable to England and Wales? And London? Very hard to imagine.
Could, as Prof Sir David Edward, the former European Court of Justice judge, argued, a situation be envisaged where Scotland remained part of the UK but would have ‘a separate relationship in relation to the single market?’ According to him, it might be worth exploring whether Scotland could join the European Economic Area and the European Free Trade Association (EFTA) rather than the EU, with full access to the single market but not carrying all of its commitments (i.e. freedom of movement of people). But, in this case, it takes three to tango. Scotland would have to be happy with that status, the UK would have to agree, and the EU (and all its member states) – Norway, as is well known, pays a price for being part of the Single Market, both in terms of monetary subsidy and of allowing free movement of people.
Theresa Villiers, the Secretary of State for Northern Ireland, has, unsurprisingly, dismissed any suggestion that regions that backed a Remain vote could have a relationship with the EU distinct from England and Wales. But it was also echoed by those constitutional experts giving evidence to the Holyrood committee, who all broadly agreed that it would be extremely difficult for Scotland to be a member of both the UK and the EU after Brexit. Even Judge Edward conceded: ‘It doesn’t seem to me possible to envisage a position of Scotland remaining part of the UK but having a separate relationship in relation to the single market.’
That would obviously also apply to any move towards a federal UK, as again brought forward by Carwyn Jones, the Welsh First Minister. It might have an effect on whether or not Scotland votes for independence, but it is unprecedented that a federal part of a federal state would have a different foreign policy than the state to which it belongs. And, seeing that all the talk before the Scottish independence referendum about a Britain ‘as federal as possible’ has come to nothing, how realistic is that perspective now, anyway?
The ‘simplest way’ – independence
In terms of preserving Scotland’s EU status, Kirsty Hughes (Friends of Europe) claimed at Holyrood, ‘the simplest and most obvious way would be to be an independent state and transition in and stay in the EU’. That nicely steps around one of the disputed issues, which peppered the debate pre-2014. Would it be a smooth transition, Scotland remaining in the EU as, in Drew Scott’s words, the ‘successor state’ of the UK? ‘That would mean,’ he said in front of the Holyrood committee, that ‘the rest of the UK would leave but Scotland would retain its seat and inherit the successor state status of the UK.’ He added that such a scenario was ‘not impossible’ if Scotland voted in favour of independence in a referendum. But that referendum would have to happen – and be successful – way before the UK leaves. In other words, only if triggering Article 50 were delayed substantially, as with the notification we enter a state of limbo. Technically, the UK is a member state until the exit is negotiated (within a margin of two years), but the UK will not be part of the EU decision-making processes as soon Article 50 is invoked. It could even be argued that the notification constitutes leaving the EU, and the negotiations that follow are only to decide the terms of exit, as the EU Trade Commissioner did in an interview. And the EU wiil not negotiate with Scotland as long as it is part of the UK. A touch of Catch 22, here.
Would Scotland inherit the UK membership of the EU, or would an independent Scotland have to apply for membership, and accept the acquis communautaire (including Schengen and the Euro)? Again, the EU can only negotiate with an independent state. The Spanish prime minister Manuel Rajoy and the French president François Hollande have already laid down a marker: ‘if the UK leaves, Scotland leaves.’ Rajoy added that it was very clear that ‘Scotland does not have the competence to negotiate with the European Union.’ And Hollande echoed him: ‘The negotiations will be conducted with the United Kingdom, not with part of the United Kingdom.’ Not surprising, given the constitutional situation in France and Spain.
Would a second independence referendum be successful? The immediate gut reaction to the Brexit vote was a move by No-voters towards endorsing independence, if that was the only possibility to keep Scotland in the EU. Three polls gave Yes a lead of 59, 54 and 52 per cent, respectively. Not yet the 60% plus Nicola Sturgeon had in mind, and of course not yet over a sustained period of time. And here we are back to the First Minister’s strategic plan. By taking most of the Scottish Parliament with her, leaving independence off the agenda for the moment, exploring, consensually, all other options to maintain Scotland’s place in the EU (even if, realistically, with little chance of ultimate success) prepares the ground for a much broader coalition for independence. Surely, if all other avenues are exhausted, Labour and Lib Dem voters, even some Tories, will come to the conclusion that, if EU membership is of utmost importance for the country, going for indyref2 and voting Yes will be the only option left?
Does that mean an easy ride? Not necessarily. The terms of combat will be substantially different than in the last campaign. Neither Scotland nor the UK nor the EU will be the same as in 2014. The choice would be between a European Union and a UK union? Which is more valuable to Scotland? In terms of markets (the rest of the UK is by far Scotland’s greatest market for goods and services)? In terms of political participation and decision-making powers? Scotland in and the UK out of the European Union would mean a hard border at the Tweed.
Scotland has changed, and keeps changing, since 2014. More powers are coming to the Scottish Parliament. Will it matter how the SNP government uses its fiscal and welfare powers to mitigate the additional cuts and tax rises George Osborne has claimed will come as a consequence of the Brexit vote? And the economic case for independence clearly took a hit when the oil price fell through the roof, with massive job losses in the industry. Renewed questions about Scotland’s economic viability will be raised if it comes to indyref2.
What kind of a UK is emerging post-Brexit? And what kind of deal will be negotiated by the UK as a whole during its withdrawal negotiations? There is no clear perspective emerging yet. The Norway option, with full access to the Single Market, including freedom of movement of people? It is unlikely that the EU would agree to full access without. And Brexiters will not agree to free movement. ‘any deal which includes free movement of people,’ Liam Fox stated categorically, ‘would be a betrayal of the EU referendum result.’ None the less, the Tories seem to hope that a close relationship with the EU can be achieved which will satisfy the expectations of dyed-in-the wool Leave voters as well as persuade enough Scots that their UK membership should have priority over their EU aspirations. Or will the deal be so unattractive that it becomes a no brainer for Scots to vote for ‘independence in Europe?
If Scotland has to (re-) apply for EU membership, could the terms put off voters. Some Leave campaigners in Scotland, including Jim Sillars, have long been advocating an independent Scotland outside the EU, perhaps as a member of EFTA. If there was sufficient uncertainty about which course an independent Scotland would steer, it might put potential yes voters off.
And, finally, how will the EU recover from the shock of Brexit? Further integratron to solve the Euro crisis? Or will Brexit give a lift to the Wilders, Le Pens and Gaulands? Will the EU, come indyref2, be more or less attractive, economically, socially and culturally?
A day is a long time in a revolution
Undoubtedly, the material circumstances have changed since the vote in September 2014. Would Westminster legislate for another Scottish referendum? Or would the Scottish Parliament be forced to hold an ‘advisory referendum’ without Westminster consent, even declare independence unilaterally, without an Edinburgh Agreement mark 2? And what if the polls do not indicate a clear majority for independence? Risk it anyway? And risk burying the idea of independence, this time at least ‘for a generation’?
So far, Nicola Sturgeon has emerged as the only politician in Britain with a plan. Scotland, after the Brexit vote, has been a rock in the unfolding turbulence. And there is huge affection for Scotland all around Europe, noticeable as Alyn Smith MEP received a standing ovation in the European Parliament. It certainly improves Scotland’s option for ‘in dependence in Scotland’. But it does by no means guarantee it. It remains to be seen whether her ScotNav works.
During the EU referendum campaign, the Leave side was never able to spell out what the plan after Brexit was. The ‘chief fraudsters of the Leave campaign’, as Patrick Harvie called them, clearly believed they would not win, and would not need any navigation device for the course to be taken. They thought they would not have to face the calamity of negotiating an exit from the EU and fulfilling the slate of promises they scattered like chaff before the wind. Hardly a thought was expended on the constitutional challenges a Brexit vote would pose. As this dawns on them, the repercussions of the Brexit earthquake continue. ‘A day is a long time in a revolution,’ said a friend recently. If proof was needed, Britain in the aftermath of 23 June has amply provided it. And Boris Johnson can now sit back and write a book about it….