In this post, Darryn Nyatanga analyses the possibilities and the difficulties involved with EU accession for an independent Scotland, which will be a major issue in a future Indyref campaign.
With the May 2021 Holyrood elections coming up, the SNP-led Scottish government have stated that their constitutional objective for Scotland is independence and EU membership. If they return a majority (which many polls suggest they will) they are likely to begin their governance with a roadmap to a second referendum on independence (Indyref 2).
The route to EU membership
During the first independence referendum campaign in 2014, the SNP led Scottish government placed importance on the need for continued EU membership for Scotland. This resulted in questions over whether an independent Scotland would have to reapply for EU membership being raised. Clarity over this was finally given in 2012 by José Manuel Barroso, the EU Commission President at the time, in a letter to Lord Tugendhat.
This letter confirmed, that by breaking away from the UK’s union, an independent Scotland would become a third country with respect to the EU, and would therefore need to apply for EU membership. In the same letter, Barroso went on to outline the Article 49 Treaty on European Union (TEU) accession process. Essentially, Barroso was alluding to the fact that, as a third nation, an independent Scotland would have to apply to join the EU under Article 49 TEU, a process that requires negotiations and the consent of all EU member states. The letter has now become known as the Barroso doctrine.
On the 31st of January 2020, the UK ceased to be a member of the EU and the revocation of Article 50 TEU was no longer possible. This marked the beginning of the transition period (which ended on the 31st of December 2020). This also confirmed that there would be no ambiguity regarding the applicability of the Barroso doctrine for an independent Scotland, given that the UK is now a third country.
Phase one: Ensuring compliance with the Copenhagen criteria
The legal basis for EU accession for a potentially independent Scotland is still through the Article 49 TEU process. Constitutional legal scholars such as Kirsty Hughes and Tobias Lock argue that Scotland could complete the accession process as laid out in Article 49 TEU, in as little as 3 to 4 years after independence. In their view, Scotland, as a former EU member (via the UK’s membership) could easily prove compliance with the Copenhagen criteria, which the EU requires candidate countries to comply with. The criteria are set out as follows:
- “political criteria: stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities;
- economic criteria: a functioning market economy and the capacity to cope with competition and market forces;
- administrative and institutional capacity to effectively implement the acquis and ability to take on the obligations of membership.”
The political and economic criteria are not problematic, however, the last set of criteria could delay the process depending on when Scotland gains independence. Prior to the day, the transition period ended (31st December 2020), Scotland adhered to most of the EU’s acquis i.e. Customs union, Single market, Environment Policy and the Common Agricultural Policy. From the genesis of the Brexit referendum result in 2016, the Scottish government were clear in their objective of ensuring conformity to the EU’s acquis communautaire. In February 2020, Scotland’s First Minister Nicola Sturgeon, in a speech at the European Policy Centre in Brussels, highlighted the reasons behind this commitment: “to protect the health and wellbeing of people in Scotland, to maintain the international reputation of businesses in Scotland, and to make it easier, when the time comes, as I believe it will, for Scotland to return to the EU.”
The Scottish government and Parliament enacted legislation that would ensure conformity with the EU’s acquis post – Brexit, the UK Withdrawal from the European Union (Continuity) (Scotland) Act 2021. The Act provides ministerial powers to allow for Scotland to ‘keep pace with developments in EU law.
However, the Scottish government’s plans to keep pace with EU law developments may potentially be curtailed by Westminster’s UK Internal Market Act 2020. The Act amongst other things sets out the legal framework for the UK internal market, based on the trade law market access principles of mutual recognition and non – discrimination. However, such principles do not take into account the unique features of the UK internal market. For instance, English dominance in terms of population size and economy, and also the constitutional dominance of Westminster over its devolved counterparts. In practice, this dominance would invalidate some of the regulations put in place by the devolved administrations. This is why the Welsh and Scottish devolved administrations withheld their consent to the legislation, stating that it was a ‘power grab.’ Given the potential for divergence from the EU’s acquis via the UK’s internal market, this would be incremental to the Scottish government’s plans for joining the EU.
Phase two: Negotiating an ascension treaty
Once the Copenhagen criteria are satisfied, the European Council then grants the given country ‘candidate status,’ after which the accession treaty negotiations begin. The EFTA countries, Austria, Sweden and Finland, took just 23 months to negotiate and ratify an accession treaty before the three states formally joined the EU in January 1995.
Nonetheless, no precedence currently exists whereby an EU prospective member state has managed to negotiate opt-outs from major EU policy areas. This would arguably be one of the biggest hurdles Scotland would face during the negotiation process. Such opt-outs would include those that the UK enjoyed as an EU member state i.e. the Economic and Monetary Union and the Schengen zone.
With regard to the former, during the campaign on indyref in 2014, the Scottish government stated that its preferred currency arrangement for an independent Scotland would be a pound sterling monetary union with the rest of the UK. Following the refusal by the UK government to allow this, the recent Scottish government proposal has been to introduce its own currency after independence.
In relation to the latter, opting out of the Schengen zone in favour of the continued participation in the Common Travel Area (CTA) would be more desirable for Scotland, based on many economic, cultural, and political reasons. As a result, Scotland would need to first opt-out of the Schengen Zone during its accession negotiations, and also secure continued participation in the CTA. The CTA makes arrangements for nationals of both the UK and the Republic of Ireland (ROI) to travel ‘passport free’ allowing for a great degree of openness to the border. This arrangement is similar to the EU’s border-free area, the Schengen zone which neither the ROI nor the UK are party to. The UK has remained reluctant to be part of this zone since its establishment, resulting in the ROI having no choice but to ‘follow suit’ and opt-out as well, in efforts to maintain the feasibility of the CTA. The ROI has confirmed their intention to remain outside the Schengen area.
By maintaining that status quo, Scottish citizens would continue to enjoy the freedom of movement in the ROI and the rest of the UK. Other EU citizens as a result would continue to be subject to border checks in Scotland. The regime of the CTA is recognised within the EU’s legal framework and most notably under Protocol 20, Article 2, of the Lisbon Treaty. And under the Ireland / Northern Ireland Protocol, Article 3.
Apart from having to successfully negotiate an opt-out of the Schengen zone, the only other legal obstacle Scotland would face in joining the CTA would be gaining the acceptance of both the UK and the ROI. In essence, a similar provision as the one noted in the Ireland / Northern Ireland Protocol would need to be set out for Scotland. This should not be too difficult to achieve given that Scotland’s current participation in the CTA does not interfere with the ROI’s obligations under EU law.
As shown above, by drawing some inspiration from the Irish context, maintaining the status quo regarding the free movement of persons on the border between Scotland and the rest of the UK is achievable.
A new EU frontier
Scotland as an independent member of the EU would have to ensure that it enforces the rules of the EU’s single market and customs union on its border. Because of Brexit, the ROI was faced with the same challenge. Just like the ROI, Scotland as an EU member state would share a land and sea border with a third state.
Despite the parallels, the most significant difference between the two cases is over the political sensitivity in one, which is non-evident in the other. Due to this then, the border arrangements in the Scottish context will be far different from the special solution provided for the Irish context via the Ireland / Northern Ireland protocol.
In protecting its single market and customs union, the EU will most likely apply strict conditions regarding the Scottish context. For instance, before their independence in 1991, Slovenia and Croatia, which share a land border, were both parts of Yugoslavia. In 2004, Slovenia ascended into the EU, which also meant joining the EU’s single market and customs union. The EU in this instance did not invoke any special arrangements despite the historical ties between the two states. As a consequence of this, Slovenia had to introduce increased border controls along its land border with (a third country at the time) Croatia. This border management arrangement was abolished in 2013 when Croatia joined the EU.
Regarding the Scottish context then, the EU would most likely look to apply similar border arrangements seen on the Slovenian – Croatian border. This would entail the need for new infrastructures on the land border between Scotland and the rest of the UK, to ensure that checks are carried out on goods and to protect against illegal activities such as smuggling.
In the Irish context, the ideas of propping up new physical infrastructures on the land border were quickly nullified, given the potential for the re-ignition of violence. By having to manage the border via these means, trade frictions would emerge on the Scotland and England land border. These new border controls would create disruption and barriers to trade, which could have the potential to negatively impact the economies of both sides of the border.
Conclusion
The issues discussed above will be central to a future indyref campaign. The prospect of EU membership would strengthen the Scottish government’s quest for indenednece. On a broader constitutional level, the arguments above illustrate that the implications of Brexit on Scotland have the potential to continue even after independence.
This post represents the views of the author(s) and not those of the Brexit blog, nor of the LSE.
The UK’s attitude to sterling is not feasible. The RoI joined the then EEC as a sterling country, later floated the punt, and then joined the Euro. There is no reason that Scotland should receive a lesser deal than the then Irish Free State on secession.
There are other issues for Scotland, military, NATO, Fastlane Base – again Ireland’s secession arrangement in 1922 apply.
The real issue is the formation of a border – again Ireland’s experience is noteworthy – HMG had far fewer posts than Ireland – they weren’t concerned about illegal importation coming into the UK add the fiscal risk was small (RoI is about the population of Manchester).
This is compounded by Scotland’s necessity to use the Channel ports, Ireland’s experience here will be instructive!
I think one of the more interesting things in Brexit and Scottish Independence is how as individuals and governments we spend vast amounts of intellectual capital, (and further down the line; economic capital) resolving problems that we have not yet created.
I wouldn’t want to suggest that Independence from the UK or EU doesn’t solve what some people would identify as problems, but I still can’t help thinking it is absolutely bizarre that we are trying to look at ways to mitigate damage we haven’t even caused – but want to cause: How can we create barriers to freedom of movement between nations and reduce peoples rights – but not too severely. How can we create extra regulation for businesses to follow, extra trade barriers and costs- but not too much?!
Following Brexit, some on the pro-indy side are, disingenuously, trying to argue that re-joining the EU will eliminate some of these problems by joining the bigger market with common rules. Of course the UK is the more integrated and considerably more important market for Scotland in terms of volumes of trade so we would certainly still be creating more problems than we are resolving.
I completely understand the identity politics of independence and the issues with how democratic the UK/EU are at representing Scotland/UK respectively. I nonetheless can’t help concluding that we should put more energy into reconciling the identity politics, i.e. supporting rather challenging our UK/European identities and campaigning for more accountability within these frameworks than jettisoning them and dealing with the inevitable fallout: Let’s not create problems to solve, but spend time solving the problems we already have.
aoco “The UK’s attitude to sterling is not feasible. The RoI joined the then EEC as a sterling country, later floated the punt, and then joined the Euro. ” I found this statement somewhat incredible, so checked it using Wikipedia.
https://en.wikipedia.org/wiki/Irish_pound
It does indeed seem to be the case that the Free State used sterling up to 1928, 6 years after the independence was achieved. The cognoscenti will notice that 1928 is still rather before the EEC came into being. It seems that after that the Irish pound was pegged for 50 years to pound sterling, so I suppose this is what aoco means.
Of course an independent Scotland could continue to use some currency pegged to pound sterling. Indeed my guess is that this is almost certainly what it would be forced to do, at least for the first few years. Then of course this would have two consequences: a. the Scottish government would have its monetary policy dictated by London; b. Scotland could not join the Euro. Since (unlike when Ireland joined back in 1973) the EU requires commitment to the EMU from its new members, this would be a rather serious problem. If the SNP wish to pretend that a government from a newly independent Scotland only has to turn up in Brussels to have the EU roll out the red carpet and agree to an opt-out on monetary union, I hope the people of Scotland will see through this.
If you “hope the people of Scotland will see through this”, then you are obviously taking a prejudiced view of the whole question, therefore there is no real need to take anything you say seriously.
Jams: “then you are obviously taking a prejudiced view of the whole question, therefore there is no real need to take anything you say seriously” It’s true that I disagree with you on Scottish independence. If you think that nothing unionists have to say is worth taking seriously, I think you are probably on the wrong blog and should head for Wings over Scotland …
One important step to overcome: gaining approval from each EU members.
French constitution requires formal steps to allow enlargement of EU. Either national referendum or parliaments vote with a minimum threshold of 60% of ays in the Assemblée Nationale and 60% in Sénat.
Other nations have their own procedures.
Not taking into account that formal step is not an option.
It’s not that I don’t think you are worth taking seriously. It’s that your obvious bias is not allowing you to provide a realistic view of the subject. Your reply, which does not actually deal with the point I raised, but is instead just a diversionary tactic, only reinforces my negative view of the value of your comments.
One point being ignored, as it is not really a formally provable contention, is that the EU may well be quite keen to resolve any problems with Scottish membership in order to give England a mild ‘bloody nose’. It would of course be denied by all, even if such motivation actually existed.
One thing that perhaps Remainers and Leavers can agree on is that it is stupid and divisive to hold a referendum on a crucial issue when the country is split 50-50. (Personally I voted for Ed Milliband in 2015 purely on this basis.)
This lesson appears to have passed Nicola Sturgeon buy. Suppose she does win by a small margin? … then she has all those historic quotes about the need for a second referendum so that people can change their mind.
I don’t think many ‘leavers’ would agree with you. In any case, 50%+1 satisfies the requirements of democracy – unless you are opposed to democracy in questions where you look likely to lose – as seems to be the case.
There is no doubt the EU would open a rapid membership procedure for Scotland. It would be a win-win scenario for the EU I would take all of the time estimates and cut them in half. Scotland would be welcomed into the EU with open arms.
John Paget: “It would be a win-win scenario for the EU I would take all of the time estimates and cut them in half. Scotland would be welcomed into the EU with open arms.” I suppose it depends what price the Scottish government is willing to pay, and how enthusiastic the new Scottish Europeans are going to be. If the Scottish government is willing to concede Euro membership as soon as practically possible and a hard land border with the rest of the UK, then negotiations might not be too tricky. But otherwise I wouldn’t count on pressure from German car-makers and Italian prosecco manufacturers to force the EU27 to take short cuts and allow special opt-outs.
“As soon as is practically possible” could be a very long time, as is the case with Sweden, unless it looked like being advantageous to Scotland. There are stringent requirements for taking on the Euro, and if they are not met, there can be no accession.
Jams: ““As soon as is practically possible” could be a very long time, as is the case with Sweden, unless it looked like being advantageous to Scotland. ” A lot of water has passed under the bridge since Sweden joined the EU, such as the 2008 financial crisis and Brexit. I think none of this will encourage the EU27 to enlarge the pool of member nations who belong, but don’t want to be on board with EMU.
The point of the 2008 financial crisis is that it led to prolonged discussions which were greatly complicated by the fact that several member nations were half-in, half-out. The point of Brexit is that it showed the EU that endlessly offering opt-outs to member nations to keep them on board is not really productive.
If the newly independent Scots come along to Brussels with a shopping-list of opt-outs then I think they are going to find it tough.
You are 100% correct on that Alias. Scotland could join the EU or a lesser commitment like EEA easily…if it was happy to have a hard customs border with the rest of the UK.
Choosing to put in that hard border with the rest of the UK really does seem an astonishingly extreme position to take though. The lack of importance and attention this issue has been given from the SNP seems to me to be one of the most disingenuous parts of their campaign.
As far as I have seen, apologies if I have missed the memo on this, the SNP haven’t set out an official party position on what they intend to do on this incredibly important issue. Are they planning on just going straight for a hard border, causing damage to the economy, in the hope for quicker EU membership? Or are they going to do less damage to the economy and negotiate a customs union with the rest of the UK, thus creating a problem that Brexit has shown is all but impossible to solve without accepting a range of disadvantages – before EU membership can be obtained?
Brian: “Scotland could join the EU or a lesser commitment like EEA easily…if it was happy to have a hard customs border with the rest of the UK.” I don’t even think that can be assumed. Anything requiring the consent of 27 different countries is liable to be derailed if one of them chooses to grandstand or hold out for concessions in other areas. I certainly don’t have a crystal ball which tells me how relations between the Visegrad Group and the rest of the EU are going to be in 2027, and I don’t think the SNP does either.
In any case you need to remember that there are other nations wanting to join the EU. I wouldn’t bet too heavily that a plan to fast-track the newly independent Scots ahead of everyone else would go down well in all the EU capitals.
The issue of a hard border is more fraught than it may at first seem. Basically, many of the Scottish Border Counties voted strongly last time to remain in the UK. If there is to be a border then they may well wish it to be north of them.
It is all very well for Ms Sturgeon to argue that Scotland has been pulled out of the EU by a majority in England but what if the Border Counties or Shetlands argue that they are being pulled out of the UK by a majority in central Scotland? Should they each be allowed their own independence referendum?
As I have already pointed out many of Ms Sturgeon’s previous stances can be used against her when the situation is reversed. She was broadly supportive of the EU taking a hard line in negotiations against the UK so she can hardly complain when the remaining UK takes a hard line against Scotland. Most importantly, if the second referendum goes in her favour, people are more than entitled to ask for a third decider. The lady herself is on record voicing the opinion that “People have a right to change their mind”.
I have just released that this is a non-problem.
Nicola Sturgeon and the SNP were strong supporters of the People’s Vote campaign under the banners “People didn’t know what they were voting for” and “People have a right to change their mind”.
So obviously Nicola Sturgeon is a lady of integrity. Either she will set out exactly what a vote to leave the UK means at the time of referendum or else she will give people a chance to vote again once it becomes clear what they actually voted for.
TJ: “So obviously Nicola Sturgeon is a lady of integrity. Either she will set out exactly what a vote to leave the UK means at the time of referendum … ”
Let me try to answer this in a way with which I hope Scottish Nationalists and Unionists can agree. I suppose Nicola Sturgeon or the SNP will indeed want to publish plans for what is supposed to happen after a vote on independence. They have this advantage over the Brexiteers after the EU Referendum, namely that they are actually likely to be representing the Scottish side during future negotiations, so there won’t be a Theresa May figure trying to implement a result in a referendum she originally wanted to go the other way.
On the other hand, there is the problem that (as with Brexit negotiations) it takes two to tango. The SNP can publish extravagant claims about what kind of deal will be reached with the rest of the UK, but the rest of the UK will get a say too, and (just like the EU after Brexit) negotations may be tough.
Furthermore, unlike Brexit, it is not clear what the default position is. There are a number of tricky issues which are pretty much zero-sum (meaning that where one side gains, the other side loses), such as the division of the national debt, oil revenues, and overseas assets. What is supposed to happen if the rest of the UK demands conditions on such issues which the Scottish government find unacceptable? With the Brexit negotations the default position was fairly clear, namely the dreaded No-Deal with the UK taking back control at the cost of trade barriers. But what would No Deal look like in Scottish Independence negotations? I don’t know.
My suggested solution is that, if the Westminster government consents a second Scottish Independence, the Scottish and Westminster governments need to get together like adults before the referendum and negotiate. At least the position if there is a vote for independence but subsequent negotiations break down needs to be clarified. Then the Scottish people will have a better idea what they are voting for.
But there is a huge lot more to be done before a second Scottish referendum can be held without risking the kind of chaos that happened after the EU referendum …
“ the Scottish and Westminster governments need to get together like adults before the referendum and negotiate”
Seriously? The Westminster Government doesn’t want the SNP to win the vote. It doesn’t want to act as if the SNP might win the vote. The SNP have a major problem with defining what independence would look like if they win. Why would the Westminster Government wish to help them out? The Remain campaign’s best strategy is to play continuous videos from 2019 of Nicola claiming that “People didn’t know what they voted for when they voted Leave”.
TJ: “The Westminster Government doesn’t want the SNP to win the vote. It doesn’t want to act as if the SNP might win the vote.” Perhaps not. But if there is going to be a vote, then the politicians need to act as if the SNP might win. This is what I mean by “getting together like adults”. I agree that politicians behaving like adults is not very likely, but that is unfortunate, since it would mean that if there were a referendum there is a serious risk of getting into negotiations where no-one knows what the parameters are.
Suppose the SNP had won in 2014 but in the subsequent negotiations Scotland and the rest of the UK could not have agreed on a way of dividing up the national debt or oil. Can anyone tell me what would have happened?
If I may be permitted to preach a bit, I would expand on my previous reply to TeeJay to say that people on both sides of the Scottish independence debate, especially politicans in London and Holyrood, need to think about what things are most important, and that is friendly relations, either between Unionists and Nationalists within Scotland, or between Scotland and the rest of the UK. I personally would prefer Scotland to remain part of the UK, but I would rather have Scotland independent with a clean break accepted by the vast majority of its people and friendly relations with the rest of the UK, than Scotland part of the UK with half of its population feeling permanently trapped within a union they do not want. I hope that those who want Scottish independence would nevertheless share my horror at the prospect of a narrow Independence win in a Scottish referendum followed by Brexit-style strife in the Scottish population and years and years of messy negotiations.
That’s why I think, if there is going to be a referendum, it is really important to a. make sure it is much better at delivering a result respected by the losers than the EU referendum, b. create detailed contingency plans to guide negotiations in the event of a vote for independence. I do hope that politicians on all sides will be able to agree on that.