Brexit has irreversibly changed the debate around an independent Scotland in the EU.
There is no question now of Scotland and the rest of the UK (rUK) as two equal partners in an EU of 29. Instead, Brexit is one of the factors behind an increase in support for independence while also raising difficult issues about a future rUK-Scotland border. At the same time, substantial analysis does now exist around the questions of how quickly and on what basis an independent Scotland could join the EU.
Overall, it could be said independence is a story of multiple transitions. But there has been rather less discussion recently of the key question of the transitions an independent Scotland would face – from the UK to the EU, and more generally to building all the institutions and structures of an independent state. This is a gap that needs filling.
Brexit impact and lessons
The chaotic Brexit process of the last four years does not seem to offer many lessons on leaving the rather different union of the UK – apart from the most obvious one of making sure you know and agree, realistically, where you want to get to and how, not just what you’re leaving.
But Brexit is not irrelevant. The future UK-EU relationship, whether based on a Brexit deal or a no-deal WTO split on 1 January next year, will determine a substantial part of an independent Scotland’s future relationship with rUK if Scotland did join the EU. Indeed, independence in the EU would mean the future Scotland-rUK trade relationship was clear – it would be the EU-rUK one (albeit in some areas, notably in parts of the vital area of services, there would be scope for additional rUK-Scotland agreement on access).
And Brexit may also, despite all the chaos, suggest some possible routes ahead on transition.
In three months’ time, Britain will no longer be in the EU’s customs union or its single market. England, Scotland and Wales will face customs and regulatory checks and rules on exporting and importing goods to and from the EU. Even with a no-tariff deal, it will be a substantial and negative long-term economic shock – and one likely to show up as well in some immediate chaos and queues at ports and elsewhere.
Northern Ireland’s special status as agreed in the EU-UK Withdrawal Agreement is now in some doubt due to Boris Johnson’s internal market bill which threatens to break international law by over-riding some parts of the Northern Ireland protocol. But if Johnson digs himself out of that hole (which he must do to get a free trade deal), then the divorce deal of the Withdrawal Agreement will ensure an open border on the island of Ireland and a customs and regulatory border between Britain and Northern Ireland in the Irish Sea (a less hard border with an EU-UK free trade deal removing tariffs).
Transition choices for an independent Scotland
Fast forward to a scenario of a ‘yes’ in an independence referendum, say in 2023, followed by two years or more of divorce talks. As soon as Scotland is an independent state, its government can apply to join the European Union – a process that at its fastest would take 4-5 years (including ratification of the accession treaty).
Then the question is: how does Scotland manage its relations with rUK and the EU in those intervening years, post-independence, pre-EU accession. One answer (which I myself have suggested in earlier articles) is that Scotland, while it goes through the EU accession process, could agree – as other EU neighbours and candidate countries have done – a specially tailored association agreement with the EU to cover trade and other areas of cooperation in the meantime.
But such an agreement will take some time to negotiate. It could conceivably be done in 6-12 months, perhaps faster if there were some informal talks with the EU while rUK-Scotland divorce talks were taking place. But there will be a gap, even if only of a few months, where Scotland could risk having a hard border with the EU and with rUK.
This is where transition starts to come in. One option would be for Scotland to stay in the UK’s internal market (despite the current controversy over creating that internal market) and to remain part of the UK-EU trade deal (if there is one). This would avoid overnight customs posts at the Scotland-rUK border on Independence Day. And the Scotland-EU border would remain the same as it would have been before independence (i.e. with the checks associated with a free trade deal or with WTO tariffs in the case of no deal between UK and the EU).
This could give Scotland time to agree an association agreement with the EU and put in place relevant customs and regulatory checks with rUK. The UK and EU would need to agree with this transition if Scotland were somehow to remain part of the UK-EU trade deal – and other countries would need to accept this (as they did for the Brexit transition of staying in the EU’s customs union). And the UK government would need to agree that Scotland remained temporarily in its internal market.
But would this just be a very short 3-6 month transition or might it be longer? There could be a case for it being longer. That would allow Scotland’s EU accession talks to move rapidly forward across different chapters (with some issues, notably currency and the deficit, likely to take longer). And it would allow rUK-Scotland issues that may need negotiating after independence to be discussed. Would rUK agree to such a transition – or might it refuse during the independence referendum campaign and then not back down?
There would be advantages to rUK, too, in not facing an immediate hard border. And for both sides, there is little point negotiating an in-depth interim trade agreement between rUK and Scotland if it is going to be rapidly replaced by the UK-EU trade deal (or WTO relationship) once Scotland joins the EU.
So there would be a choice for an independent Scotland of what to aim for: transition to the EU with an association agreement with the EU until it joins; or, for some of that time, a transition period where it stays part of the UK-EU trade deal and part of the UK internal market, if that is feasible.
Internal Market Bill creates hazards ahead too
But there is a potentially major fly in the ointment here which comes back to the UK government’s current internal market bill. The bill drives a coach and horses through devolved powers and means that any divergences in laws and regulations between England and Scotland would, mostly, not stop English products having market access rights to Scotland. Yet Scotland would be in the process of ensuring all its regulations met EU laws again – so if England had diverged substantially, at least in some areas, there would be a risk of considerable undercutting or competitive advantage to English goods. And if English goods, in the Scottish market, didn’t meet EU regulatory standards then Scotland’s accession process or a potential association agreement would be hampered.
Shorter transition or the EEA route?
This would suggest that a short transition of staying in the UK internal market and UK-EU trade deal for just a few months before establishing a harder border would be preferable to a longer one. Certainly, an independent Scotland would not want to spend even a few months in a situation as a third country where it had a new hard border with rUK while still having a hard border with the EU. So, this transition process does, if possible, need to be agreed in some form or other ahead of actual independence.
Once an independent Scotland had an association agreement with the EU and eventual EU membership, its border with the EU would become progressively more open. Ironically, the customs and border expertise that Scotland would have developed to manage its 1 January 2021 border with the EU, alongside the rest of the UK, could then be transferred to manage its external EU border with rUK.
It has been suggested that Scotland could transition via the European Economic Area (EEA). But this is not an obvious route. The EEA is not intended as a transitional body – which is why EU candidate countries have instead agreed association agreements with the EU to manage their relationship while talks progress. And joining the EEA would not, either, be an overnight matter – Scotland would have to first join EFTA, then ask to join the EEA (which needs the agreement of all its 30 member states – the EFTA 3 and the EU 27). And Scotland would have to adjust all its laws and regulations to be entirely in conformity with the EU’s single market again and have appropriate border controls with rUK (and other countries) in place.
Transitions are at the heart of independence
In the end, transition would have to be managed. If Scotland became legally and constitutionally independent, it would leave the UK. And it would be expected (if Scottish public opinion remains pro-EU as now) – as other small European states before it – to sooner or later join the EU.
Across all its various dimensions, independence is about a whole range of transitions – economic, political, democratic, social and cultural. Considering how those transitions could and should be managed, and what their implications, timings and costs and benefits are, needs to become a more central part of the debate.
Further reading: James Mitchell, The ‘Scottish Question’ revisited, Jimmy Reid Foundation, October 1