There appears no avoiding a second Scottish Independence Referendum, unless either Nicola Sturgeon or Theresa May backs down to a humiliating degree. I have been studying in detail the Scottish government’s proposals for Scotland’s future relationship with the EU within the UK after Brexit. Their aim is for Scotland to remain in the European Economic Area as the rest of the UK leaves it (a key marker of hard Brexit). It is worth noting that if the UK went for continued single market membership (soft Brexit) almost all the Scottish government paper would fall.
Theresa May has now rejected these proposals out of hand. This is scarcely surprising, as the Scottish government’s proposals would have involved giving Scotland new powers which are normal attributes of a nation state. In particular, treaty making is a sovereign power – even in proper Federal systems, California or Ontario do not make trade agreements with foreign states as the Scottish government proposal specifically states that Scotland must be able to do (para 187). The paper lists powers currently held in Brussels which fall within devolved competence and should come back to Holyrood, and then others in the category of “citizens rights” which are currently reserved but the Scottish government wish to have devolved to Holyrood. Then there is a third list of powers which would be required by the Scottish parliament to enable Scotland to meet the obligations of remaining within the European Economic Area if the rest of the UK is not in it.
These new powers are, in addition to trade treaty making:
a) import and export control
c) competition, product standards and international property
d) company law and insolvency
e) social security, including to enable reciprocal arrangements with other states
f) professional regulation
g) energy regulation
h) financial services, communications, postal services and currently reserved areas of transport
Simply put, Scotland would need to be able to function as though it were a full sovereign state in every area covered by the European Economic Area agreements, so that there would be no difference to the other members than if they were dealing with another fully sovereign state.
Personally I do not believe the Sturgeon proposals are diplomatically achievable. The argument is made at para 136 that the pending Faroe Islands discussions with the EU on joining EFTA are a precedent for the EU reaching agreement with an entity which is not a sovereign state, with a state as its sponsor. But the difference is of course that the Faroes is an autonomous dependency of an EU member state – Denmark – not of a non EU member state. As in the “Greenland option”, there is no precedent for a territory being in either the EU, EEA or EFTA while the metropolitan is out. Treaties are between states, and while there are plenty of examples of treaties which exclude dependencies of varying status, I cannot think of a single one in the economic sphere which includes the minor and excludes the metropolitan. I do not think it could be done.
At para 123 the Scottish Government acknowledges that its proposals will require other EU states to be “flexible and innovative”. That is an understatement. What the Scottish government seeks to achieve is incredibly difficult, I would say impossible.
To give just one example of the difficulties that would arise, look at the practical shipment of goods, from the Scottish government proposal:
Imports from the European Single Market
153. Goods entering the UK from the European Single Market would be subject to the import regulations appropriate to either jurisdiction (Scotland or the remainder of the UK). The appropriate regulations would be determined by the point at which the goods are to be sold.
154. If the point of sale is Scotland, then there will be no tariff payable due to our EEA membership. If the goods are to be sold in the remainder of the UK they will be subject to whatever regulations apply and tariff is payable under the remainder of the UK’s arrangements with the single market and/or EFTA states. To the extent that any import from the single market is not covered by Scotland’s EEA membership then the relevant regulations and tariff under Scottish and/or rUK law (depending on the devolution settlement in place) will apply.
155. When a consignment contains goods bound for sale in both Scotland and the remainder of the UK, if there is no difference in the treatment of that good (for example, if it is tariff-free) between Scotland and the remainder of the UK, then no additional process is required. Where there is a difference, on entering the UK the point of sale for the relevant proportion of the goods will need to be declared and the relevant tariff paid and regulations followed. If the point of sale is in the remainder of the UK, then the UK-wide regulations and any UK tariff would apply.
Exports to the European Single Market
156. Goods and services could also continue to be exported from Scotland and the UK under different conditions when accessing the European Single Market. Goods and services produced in Scotland, and complying with all relevant EU regulations, would be exported freely to the European Single Market, whilst those from elsewhere in the UK would be required to comply with the terms of the UK’s new trading relationship with the EU.
Agreeing this with the UK government is going to be difficult enough, when it gives firms an obvious incentive to relocate to Scotland. There are all sorts of workarounds which companies will try, such as partial assembling or packaging in Scotland. We might find those Nissans have their wheels and wing mirrors put on here. But then not only have the arrangements to be agreed with the UK, all the other EEA members have to agree to set up and run a system to differentiate between Scottish (still overwhelmingly through English ports) and English exports, and ensure themselves no corporate cheating is involved.
I warned from the start that this exercise was not in the realms of practical possibility. If Nicola’s aim was to prove that Scotland is viewed with contempt by Westminster, and has no choice except hard Brexit or Independence, then that has now been resoundingly achieved and we can move quickly on to another referendum in 2017.
But I do not like this approach. Rather than a joyous uphill march to the fantastic possibilities of unlocking the potential to construct a new state for this wonderful nation, it paints Independence as a dire necessity because nothing else works and everything is going to pieces. Independence as a little lifeboat in freezing mountainous seas as the UK Titanic plummets beneath the waves.
My criticism of the last official referendum campaign was that it was exceptionally cautious. The motto seemed to be “Vote for Independence and Nothing will Change!”. You will keep the Queen, keep the Pound, keep NATO, nothing will be any different. That is hardly a rallying cry. This time the motto seems to be “Vote for Independence and We May Be Slightly Less Doomed”.
Frankly I have had enough of this havering. Impossible proposals for Scotland to remain first in the EU, and then a fallback to the EEA, as the UK exits. A “national conversation” as a blatant ploy to keep the SNP troops quiet and believing they are doing something. It is time to re-invoke the energy that burst through from the people in the last referendum campaign and moved us up from 32% to 46% support. The demand for a more egalitarian society that rejects neo-liberalism at home and neo-conservatism abroad. For an open, outward looking country, harnessing its extraordinary resources of renewable energy and an amazingly talented and educated population. A chance to ditch the baggage of the UK’s past and build on our dreams.
Let’s get back to that. Some of us never stopped campaigning for Independence. It is time for the SNP to make the leap of faith and come back into the fray of a full on Independence campaign. Enough of the EU related sophistry. Let’s free this country.
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