Brexit (13): The Scottish Dimension – a perspective from CMS Edinburgh

Key points:

• The UK Government has said there will be full consultation with the Scottish Government before the UK triggers Article 50, but appears to be proceeding on the basis that the entire UK (including Scotland) will exit the EU.
• There is considerable resistance to this idea from the Scottish Government/Parliament, given the clear majority in Scotland which voted to remain in the EU.
• Work is under way in Scotland to look in detail at the ways in which Scotland might remain in the EU or re-establish EU membership. These range from a second referendum on Scottish independence, the Greenland option whereby the rest of the UK exits but Scotland remains, to an argument that the Scottish Parliament can veto any UK exit.
• It remains to be seen how the UK government’s proposals for a new relationship with the EU (whatever they may be) will be viewed in Scotland.

Overview

In Scotland the EU Referendum vote was 62/38 in favour of Remain with Edinburgh being 74% Remain. This gives rise to a much talked about scenario in Scotland where “Scotland is forced out of the EU against its will”. The Scottish Government have stated that this scenario was an example of a material change in circumstances which could justify seeking authority to hold a second Scottish Independence Referendum.

Since the outcome of the EU referendum Nicola Sturgeon as the First Minister of Scotland has made a series of statements indicating that it is her wish, and the wish of the Scottish Government, to seek ways in which to preserve continuity of membership of the EU notwithstanding the outcome of the EU Referendum and impending Brexit. The debate at the Scottish Parliament on 28 June 2016 following the Brexit vote gave overwhelming support to the Scottish Government taking steps to secure ongoing membership of the EU. Nicola Sturgeon made it clear that she was not yet looking for explicit parliamentary authority to pursue a Second Scottish Independence Referendum but she also made it clear that this was very much one of the options “on the table”.

The Scottish Government has established an expert committee of 17 members, including politicians, economists and constitutional experts. The committee is chaired by Professor Anton Muscatelli, principal and vice chancellor of the University of Glasgow and also includes Vasco Cal, a former economic adviser at the European Commission and Sir David Edward, a former European Court Judge and David Frost, a former diplomat. The purpose of this committee is to consider the impact of proposed changes to the UK's relationship with the EU on Scottish interests and to provide ongoing advice to Scottish ministers throughout negotiations with the UK and the EU on the best way to secure Scottish interests and objectives.

Nicola Sturgeon and others from the Scottish Government have subsequently held a number of meetings with EU politicians and officials seeking to explore how continuity of EU membership could be achieved. While there has been a willingness by some to engage in such discussions these have not been in the nature of detailed negotiations and there may be reluctance at this stage to allow these to take on a more formal nature given that the UK has not begun the formal process of leaving the EU and the EU does not normally engage at a sub-national basis. Certain EU members, including Spain, have, given their domestic considerations, also expressed some reservations about any engagement with Scotland. On the other hand, a number of politicians across the EU have expressed broad support.

Nicola Sturgeon has also met the new UK Prime Minister Theresa May who has confirmed that the UK Government is “willing to listen to options” on Scotland’s future relationship with the EU and will not trigger Article 50 until she thinks that there is “a UK approach and objectives for negotiations”.

The options?

In order to secure ongoing membership of the EU a number of possibilities have been mentioned with each seeking to achieve this continuity in a different way.

A Scottish Veto?

One suggestion was that the Scottish Parliament could exercise a “veto” over the UK leaving the EU although the Scottish Parliament does not have a formal veto. The crux of the matter is a clause in the Scotland Act of 1998 which established the Scottish Parliament, and provides that the Scottish Parliament cannot contravene EU law which means that compliance with EU law is a devolved matter for the Scottish Parliament. The Scotland Act of 2016 states that “normally” the UK Parliament will not legislate on devolved matters without the consent of the Scottish Parliament.

In order for the UK to leave the EU “cleanly”, it will be necessary for legislation to be passed in Westminster removing that provision of the Scotland Act 1998 and Nicola Sturgeon has made it clear that such consent is unlikely.

This does not, however, amount to a right of veto as the UK Government could either proceed without amending the provision of the Scotland Act, at least in the short term, or legislate without the Scottish Parliament’s consent. Nevertheless, there may be some political considerations that may come into play should such an override be used.

The “Greenland Option”

Under this scenario the bulk of the UK would be outside the EU with Scotland (and potentially other parts such as Northern Ireland and Gibraltar) within the EU. The rest of the UK could become "externally associated" with the EU and it has been noted that the Treaty of Rome provides for associate status.
The precedent that is normally cited is that of Greenland which remains part of Denmark but is not part of the EU. In 1985 Greenland seceded from the European Economic Community (EEC) (as the forerunner of the EU), while Denmark remained within the EEC. The situation of Scotland (even if combined with Gibraltar and/or Northern Ireland) would be quite different, however, given the relative scale of the parts of the UK that would be outside the EU when compared to Greenland, which is geographically separate and has a small population.

While a possible precedent, it is unclear how exactly this approach could be structured in practice and it would inevitably require a great degree of co-operation both within the UK and with the EU and in this context the UK Attorney General Jeremy Wright has insisted that, notwithstanding Theresa May’s comment about listening to options, “all of the UK” would be leaving the EU. This solution would almost inevitably also require considerable constitutional change within the UK and further devolution of powers from Westminster.

Scottish Independence within the EU

There are conceptually a number of ways in which EU membership for an independent Scotland might be achieved. The two more likely alternatives would be either for Scotland to apply as a new applicant or for Scotland (potentially with other parts of the current UK) continuing as member of the EU (ie where effectively for EU purposes England & Wales etc have withdrawn from the UK). Both of these options have some challenges.

In either event the constitutional precedent in Scotland would be that independence would require an affirmative vote in a referendum in Scotland along the lines held in September 2014 (at which time the vote was 55/45 against independence). In order to get to this point not only would the Scottish Parliament require to approve legislation, but there would almost certainly also need to be a delegation of powers by the UK Government given that the constitution is a matter reserved to Westminster. This is what happened in relation to the 2014 Scottish Independence Referendum. There is, however, a view in some quarters that the approval of the UK Government is not necessarily required and this point has not been tested.

Whilst Nicola Sturgeon has indicated that preparatory work on the requisite legislation for a second independence referendum was to commence, the timing of any referendum would depend on a number of factors but the stated aim of the Scottish Government has been that if there is a referendum this is held within the 2 year period between the triggering of Article 50 by the UK and the UK formally leaving the EU. Politically it would also be preferable that at the time any referendum is held that there is a level of clarity on the terms of the UK’s departure and the basis of any continued EU membership for Scotland. This would suggest that any referendum is likely to be held in the latter half of 2018 at the earliest.

If Scotland were to apply as a new independent country this process could not in theory begin until it was independent and at that point any application might logically be at the “back of the queue”. In reality there are likely to be discussions at a number of levels between representatives of the Scottish Government and the EU on the terms and timelines of such an application.

If Scotland (together with potentially Gibraltar and Northern Ireland) was to seek to assume the UK’s current membership of the EU then that would involve a bespoke set of negotiations with the UK Government and with the EU leading to the secession of England and Wales from the EU. This really would look like uncharted territory and there would likely need to be a detailed consideration of international as well as EU law.

Scotland within the UK and out of the EU

It is possible that the outcome of negotiations involving Scotland, the UK and the EU could be Scotland remaining part of the UK and outside the EU. This could happen because it is viewed that there is insufficient support in Scotland for a new independence referendum or the second referendum rejects independence. There is no visibility on what the ongoing constitutional relationship between the UK and Scotland will be but there is likely to pressure on the UK from the Scottish Government and others for greater autonomy for Scotland, for instance in relation to migration where it has been mooted that Scotland could, within parameters set by the UK, set its own migration policy. There are other powers currently exercised at an EU level in areas such as agriculture and fisheries that it has been mooted would be transferred to the devolved administrations in the UK.

Conclusion

We are at the beginning of a process which is likely to be lengthy and the outcome of which is both constitutionally and politically uncertain. It is not yet clear what the preferred outcome for the UK of Brexit negotiations will be and it is also unclear what the response of the EU and its individual states will be. However, in the context of Scotland there is a clear political will by both the Scottish Government and the Scottish Parliament for Scotland to remain within the EU. At this stage, it is not clear whether this will be the outcome but what is clear is that the Scottish Government is currently seeking to take all steps which it can to achieve that goal.