Don’t want to read 2600 words? Twitter version: None of the things people say will be hard are. Few are talking about things which will be.
Only in the madhouse world of UK politics that a government which is actually embarking on the process of taking Scotland out of the EU against its will while claiming that this would be a wonderful thing could somehow contrive to simultaneously try to sell us that line that an independent Scotland would be out of the EU against its will and that would be terrible.
Whilst this is going on, the same several year old phony war surrounding Scotland’s membership of the EU continues with a great many people still claiming that we would a) be forced to join the euro and b) Scotland would be punted to the back of the accession “queue” doomed to wait till all other potential members (including, possibly, Turkey) have joined before we’ll get a look in.
This week has seen the publication of a couple of commentators on Scotland’s precise position regarding our EU membership, independence and the interaction with Brexit which has sent every man and their dug howling at the moon and trying to spin themselves into position to get another shot in.
So lets take the opportunity here to take a slightly more sober, honest and open look at how things work in the EU and plot out a couple of likely (that is, actually possible) pathways from which Scotland goes from here, through Brexit and independence and to an independent Scotland within the EU.
First, we should look at the conditions for a new state to enter the EU. The first thing to remember about these criteria is that there is no “queue” for joining. Countries join the EU based on the speed at which they meet the criteria.
With regards to the membership criteria, we’ll look at which ones Scotland currently does and does not meet. We’re going to assume, for the purposes of this list, that Scotland has become independent at the same moment as Brexit has occurred but that no other changes have been made to UK or Scots law. We’ll place to the side the issue of whether or not this is membership as a successor to the UK’s membership or whether we are a “new” member simply in our own right. We shall, however, discuss the limits and implications of these assumptions. The conditions are as follows, in no particular order:
1. Be a Country in Europe
Check. (Although various exceptions and asterisks apply to this condition, no-one is suggesting that they’d affect Scotland.)
2. Have the consent of the EU institutions and EU member states.
This is one that we can’t, in all honesty, guarantee ahead of our independence as no state is currently willing to go on the record as supporting (or denying) Scottish EU membership whilst we’re not in a position to ask for it. However, there are hints that the game has changed significantly since 2014. Brexit has all but destroyed the goodwill that kept the EU “on-side” during the previous UK Better Together campaign and should independence happen then certainly “anything can happen“
3. Have the consent of the citizens of the country.
Again, this isn’t something that we can take for granted. There is considerable division in Scotland right now on the EU issue – despite the majority in favour. Whilst many people who have moved from No to Yes in the past two years have done so explicitly because of Brexit and the next independence campaign is likely to weigh heavily on this issue, it cannot be discounted that many people who have moved from Yes to No have done so because they do not want to be part of the EU. It may very well be that an independence campaign which focuses too much on EU membership may be a campaign which is lost thus denies us the opportunity to even ask the people of Scotland which of the various relationships with the EU we wish to peruse. Depending on public feeling, it could be that removing the EU question from the independence debate is a better solution. Perhaps, Scotland would seek, instead, to join EFTA for a period of a few years and then begin again the debate over whether we should re-join the EU or even leave EFTA and go it alone. As someone who’d go so far as to describe themselves as an EU Federalist I’d certainly be campaigning to rejoin the EU as soon as possible but even I’ll state now that at least in those circumstances we’d be able to speak to the EU formally rather than having to do this diplomatic dance that we’re currently mired in.
This all said, we’ll continue to assume, for the purposes of this article, that Scotland does indeed wish to become an EU member as soon as possible after independence.
4. The EU must be able to integrate new members.
This is the criterion which is the source of much of the “join the queue” confusion. Whenever the EU talks about not integrating members from the remaining non-member Balkans states before 2020 or not integrating Turkey perhaps ever, this is why. Expanding the EU has implications economically and politically as well as opening up the whole Freedom of Movement issue which vexes so many members (as well as a certain soon-to-be-ex member).
But Scotland’s joining the EU immediately after Brexit will not constitute an expansion of the EU. The 5.3-ish million EU citizens currently living in Scotland are already EU citizens with the right to Freedom of Movement so the whole logic of the “queue” is simply erroneous. This is not entirely to say that Scotland’s membership will necessarily be “automatic” and with continuity (although it might) but being a member on the “list” of potential members mostly certainly does not constitute being behind the others in the “queue”. There is no queue.
5. Meet the Copenhagen Criteria
So named because these criteria were laid out by the European Council in Copenhagen in 1993, they lay out the legal, political and economic conditions which Scotland would have to meet to be able to be a member. Despite the protestations of now, democratically elected MSP Anas Sarwar, Scotland does indeed guarantee democracy, rule of law, human rights and protection of minorities. We have a broadly functioning market economy capable of coping with market forces and competition and we are more than capable of adhering to the goals of political, economic and monetary union.
This last point takes us to the other great confusion of the EU membership debate. The monetary union. Joining the euro. It is indeed a requirement of EU membership to commit to joining the euro. Once the UK leaves, the only country with a formal opt-out will be Denmark. But, and this is a critical point, there is no timetable for joining the euro. Actual euro accession is not a requirement of EU membership. A country cannot join the euro until it meets Eurozone accession criteria (which are entirely separate from EU membership). No-one can force a country to join the euro if it is not ready or is unwilling. No-one can even force a country to start the accession process. If one thinks about it just for a moment, forcing a country into a monetary union against its will is entirely nonsensical. The only thing which supports a fiat currency such as the euro is the confidence the market has in it. Forcing countries into the Eurozone would fatally undermine a currency which is already struggling under the weight of significant structural challenges. Scotland may well at some point end up joining the euro but it will be at a time of our choosing and not before we are ready to do so.
Raising the Barriers
So we’re clear now. Entry into the EU is a process for each country, not a linear queue. And Scotland, without changing much as stands right now, largely meets the conditions for entry. There are some complications though and if we want to have a rational debate about our EU relationship we do need to discuss and understand them.
1. Those Opt-Outs
Whilst there is substantial and growing goodwill towards Scotland’s EU membership, we may well squander a great deal of it if we approach the EU with a similar stance as the UK has over the years. Much political capital was spent by the EU to keep offering the UK compromises and opt-outs of treaty obligations in an attempt to keep us within the Union. It obviously hasn’t worked so there is now, understandably, very little patience or tolerance within the EU to go around dishing more of them out to recalcitrant members. This will include Scotland.
To be fair, some of the existing opt-outs may continue. In particular, the opt-out enjoyed by the UK and Ireland from the Schengen Area may simply make sense – especially in light of the border issues invoked by Brexit. Others, like the formal opt-out of the euro, are far less likely to continue (although, as mentioned above, a Sweden-style can-kicking exercise may not be fought hard against. Least of all by Sweden.).
If we were to be really stupid about things and try to push a list of opt-outs, exceptions and special deals then we could well find our road into the EU being a lot longer and bumpier than we’d like. And rightly so.
2. The Acquis Communautaire
Whilst the legal infrastructure covering Scotland does indeed qualify us for EU entry, not all of that infrastructure resides within Scotland. Items covered by what is known as the Acquis Communautaire – which includes treaty obligations, legal principles and regulatory standards – are largely reserved to Westminster. A good chunk of it would have to be replicated in Scotland very soon after independence and there’s actually a chance that we might not be able to do much to it other than replicate it. Part of the adherence to the Acquis Communautaire is as much about showing that the systems in place do in fact work in accordance with EU law rather than simply stating that they will. If we try to design a Scotland which looks, from the offset, to be very different from the UK we’re trying to get away from we might have to be very careful how we do it. Certainly, this kind of planning should be happening at the top levels of the Scottish Government well before we start the second independence campaign. I’d be greatly reassured if someone was able to tell me it was happening right now but there’s unfortunately sparse evidence of that.
3. The Great Repeal Bill
Our side of things aside, there’s another complication related to this which lies within the limits of one of the assumptions we made earlier. Namely, that’d we’d be independent shortly after Brexit day. The window for that particular opportunity is either closing or may well already have closed. We simply can’t base an independence campaign on a variation of the slogan “The Brexit Deal will be Terrible” unless and until we can actually see the formal Brexit deal. Now, I’m not saying it won’t be terrible. I can’t see a pathway to one which isn’t. But we need to see it to be able to complain about the specifics of it.
The problem is, I fully expect the deal making to last a minimum of 18 months even if everything goes well. That would leave us 6 months to hold the independence referendum, win it and THEN – and this is crucial – organise a separation from the UK in a process which in 2014 we said would take 18 months but in reality would most likely take up to three years. All assuming that Westminster would allow us to chuck their Brexit deal under the bus like that (because what happens to that thing they’re going to buy by selling out our fishing industry again if we run away with the fishing industry?) or at the very least cause a major distraction to them at a critical time.
In reality, I don’t even think the Brexit deal will be done in 18 months. France and Germany have their elections to get through so won’t want to discuss anything too critical that a potentially new government might want to reopen and any kind of complication to the wrangling could easily push things to the limit of the 24 month deadline set by Article 50. Sorry to my friends in the House of Commons but I don’t expect you’re going to see that deal you’re going to be expected to rubber stamp until hours before that deadline.
So I think we need to be honest and open and consider the probability that Scotland will not be able to achieve continuity membership of the EU. Maybe some kind of fudge, “holding pen” or “associate membership” deal could be arranged but it would only be a fudge so until one is offered, we should stick to the rules as we see them (and remember, the EU isn’t as keen on “Special Deals” as it once was).
The moment that the UK leaves the EU Westminster will hold a vote on the Great Repeal Bill. This is the bill designed specifically to bring those parts of UK law subordinated to the Acquis Communautaire back into UK control (Scotland would have to do the same to reserved UK law on independence and the opposite on rejoining the EU). Even at this point, the UK – and Scotland – would still be in compliance with EU law therefore it would, theoretically, be a relatively simple step for Scotland to become an EU member (subject to caveats in the previous section).
The danger lies in the changes which come later on. The longer we stay within the UK and out of the EU, the greater the opportunity for the UK to start making changes to laws and regulations which previously had to be EU compliant. Some Tories have already went on record as supporting a rapid slashing of a great many health and safety, employment and welfare regulations once we “Take Back Control”.
If this happens then Scotland would not only have to repatriate regulatory code upon independence, it would have to reinstate it to meet EU standards and to prove to the EU that our laws are stable enough to meet the accession conditions. This could well push membership further down the road. The longer we take to leave Brexit Britain. The faster Westminster implements deleterious changes and the longer we allow those changes to “bake in”, the harder it could be to reverse the process. If I was running a hostile Tory government in Westminster I might well be tempted to take mind of this to try to scuttle the independence campaign. If I was running a Scottish Government intent on countering this, then I’d suggest a building plan of watching for any changes made either after independence becomes inevitable or which were pushed through to deliberately harm Scotland’s EU membership proposals and ensuring that the costs of reversing those changes are accounted for in the subsequent debt and asset negotiations.
So in summary:-
- There is no “queue”. Repeat that a few times till you remember it.
- An EU member must commit to joining the euro but cannot be forced to do it before they’re ready.
- Even with the best will in the world, the window of timing for Scotland to maintain continuity membership might already have closed. “Special Deals” may be unlikely.
- But if Scotland can become independent before too many post-Brexit changes happen then it should be a straightforward process of rejoining the EU.
- But Westminster may rush to push through bills which would work against us. We must be watchful of that.
- Nevertheless, we have options such as joining EFTA (or something functionally similar) and then taking a fresh look at the EU once we’ve settled our separation from the UK – this may indeed be an easier course of action than attempting a continuity EU plan.
- None of this should prevent independence and we should be wary of tying independence down to any one particular option (on any subject). The core independence question is not “Should Scotland be a member of the EU?” but “Should Scotland have the right to ask that question?”