Professor Steve Peers

The Scottish government recently released its anticipated paper exploring Scotland’s position within Europe. While acknowledging the government’s support for both EU membership and Scottish independence, the paper concentrates on potential outcomes should Brexit occur while Scotland remains part of the UK. Accusations that the paper dismisses referendum results, regarding either Brexit or Scottish independence, or simply rehashes arguments for independence are unfounded.

The paper essentially presents two main options: a UK-wide approach to Brexit that considers the concerns of Scottish voters, or, if that fails, a separate approach specifically for Scotland. It also advocates for further devolution of powers within the UK in light of Brexit. This analysis will primarily focus on the first two options, recognizing the connection between a distinct approach for Scotland’s post-Brexit EU relationship and the necessity of increased devolution.

A Unified UK Response to Brexit

The paper primarily argues for the UK to remain in the European Economic Area (EEA), mirroring the model of non-EU countries like Norway and Iceland. It further proposes remaining within the EU’s customs union, which governs trade with non-EU nations. The paper accurately distinguishes these as separate issues, highlighting the possibility of participating in one without the other, as demonstrated by Norway’s EEA membership without customs union participation, and conversely, Turkey’s customs union membership without EEA involvement. While no non-EU state currently holds both memberships, no legal barriers prevent it.

The paper refutes the claim that single market membership equates to remaining in the EU, clarifying that the EEA agreement excludes the customs union, allowing the UK to pursue independent trade agreements with non-EU countries. It further emphasizes that the EEA does not encompass areas like fisheries, agriculture, EU foreign and defense policy, tax, or justice and home affairs. While Norway and Iceland have supplementary agreements with the EU on matters like Schengen participation, these are distinct from EEA membership.

The paper addresses common objections to EEA membership, stating that it does not subject the UK to the jurisdiction of the European Court of Justice (ECJ), a key concern for the UK government. However, EEA membership does involve adherence to the EFTA Court, which often aligns with the ECJ on matters within the EEA treaty’s scope, although some EFTA Court judgments, particularly those stemming from national court referrals, are not binding like EU court rulings.

Regarding the UK’s financial contributions to the EU, the paper accurately points out that EEA contributions are calculated differently and could be lower for the UK than current levels. However, the paper omits mentioning the possibility of utilizing a safeguard clause to manage EU immigration. While not a priority for the Scottish government, this clause could be implemented regionally, potentially allowing employer-level screening of job applications from EU migrants in England and Wales. The paper acknowledges consultation of non-EU EEA countries on new EU laws within the EEA’s scope but fails to mention their ability to reject the extension of these laws.

The report could benefit from increased clarity in certain areas. While advocating for continued strong UK-EU relations beyond trade, it remains ambiguous whether these fall under the EEA framework. Areas like private law, non-sex-based discrimination law, EU funding for Scotland, research funding, refugee issues, and criminal law fall outside the EEA and would necessitate separate UK-EU agreements. Conversely, consumer and employment law are covered by the EEA. The report clarifies that many, though not all, EU environmental laws fall within the EEA.

Notably, while advocating for an interim arrangement as the UK exits the EU, the paper does not offer specifics or consider the option, favored by some, of using EEA membership as a temporary bridge while negotiating a comprehensive trade deal.

A Scotland-Specific Approach

The paper acknowledges the existing geographical asymmetry in applying EU law across member states, within the EEA, and even within the UK’s planned Brexit response. It proposes a similar approach for Scotland, allowing participation in the EEA either through UK sponsorship or directly, while remaining part of the UK.

This approach raises concerns regarding the movement of goods and people between Scotland and the rest of the UK under differing EU relationships. While the paper delves into some of these issues, it largely relies on the assumption that solutions for the Northern Ireland/Irish Republic border, as promised by the UK government, can be applied analogously to Scotland’s relationship with the rest of the UK.

Observations

From a legal standpoint, maintaining UK membership within the EEA (or a similar framework) is considerably more straightforward to arrange and negotiate than a Scotland-specific Brexit solution. However, the report recognizes the political unlikelihood of EEA membership due to the UK government’s apparent resistance to obligations regarding the free movement of people. The report could have strengthened its argument by addressing these concerns and exploring the potential use of the EEA safeguard clause. Additionally, given the UK government’s recent openness to a potential interim arrangement following Brexit, advocating for temporary EEA participation could have been beneficial.

Similarly, though not explicitly addressed in the report, a Scotland-specific approach faces political obstacles, as neither the UK government nor the remaining EU members seem receptive to the idea.

However, the Scottish government’s proposals on devolution may hold greater potential for success. As the report highlights, devolution will inevitably become a focal point when the UK Parliament reviews the proposed “Great Repeal Bill”. Converting EU law to UK law necessarily raises questions about how this process intersects with the powers of the UK’s devolved governments. This is an area where broader political support may exist. The paper highlights Labour party interest in revisiting devolution, even though the party appears less keen on UK-wide EEA membership and has not publicly expressed a position on Scotland-specific Brexit solutions.

This presents an opportunity for a coalition of opposition MPs and dissenting Conservatives to unite around shared concerns regarding the future bill. These concerns include preserving environmental and employment law standards, addressing the concerns of devolved legislatures, and limiting the executive branch’s authority to amend parliamentary acts to weaken standards.

Beyond this lies the particular political landscape in Scotland. Should the UK government reject the Scottish government’s proposals on these three points, particularly given the current report’s willingness to accept both Brexit and Scotland remaining within the UK, this might be the impetus to call for a second referendum on Scottish independence. However, other factors, such as public opinion, will also significantly influence that decision.

Barnard & Peers: chapter 27

Photo credit: Business for Scotland