Last Thursday’s referendum may have answered one question, but it has spawned many more. How does the UK leave the EU? When do we leave? What does leave mean? And what does it all mean for Scotland?
In theory, the ‘how’, at least, is clear. The process is set out in Article 50 of the Treaty on European Union – the EU’s constitution. The UK Government must give formal notice of its intention to leave to the European Council (the other members). This kick-starts negotiations on the terms of exit.
‘When’ is less clear. From the point that notice is given, Article 50 allows 2 years for agreement to be reached. Even then, disentangling UK law from EU law could take much longer. David Cameron has said the process shouldn’t start until autumn, after his successor is elected as Tory leader and appointed Prime Minister. But the UK may not get to dictate the timing. Already there is pressure from the EU to act more quickly.
What Leave means will be decided in negotiations between the UK and the EU. It’s possible that the UK could still be in the EU single market, without tariffs on goods and services. But that would almost certainly mean being subject to EU law and regulation, including on freedom of movement for EU citizens and workers. The Leave campaign never did define their intentions, but ‘taking back control’ – the campaign mantra – suggests a looser relationship. Besides, the EU seems in no mood to sweeten the deal. They desperately want to avoid other countries following suit.
In all of these negotiations, there is no formal role for the Scottish Government or the Scottish Parliament. Legally, it doesn’t matter that every local authority in Scotland voted to remain in the EU. This was a UK-wide poll, and Scotland is part of the UK. At least for now.
On Friday, Nicola Sturgeon expressed her determination to secure Scotland’s “continuing place in the EU, and in the single market in particular”, insisting that her government be “fully and directly involved in any and all decisions”. The UK Government will need to involve the Scottish, Northern Irish and Welsh Governments if it is to secure wider agreement for the Brexit deal. How fully they do so may depend on whether they can find common cause. It’s hard to see any deal for the UK that would be compatible with Nicola Sturgeon’s ambitions.
So, another independence referendum is back on the table. It’s not inevitable, nor is it certain that independence would win. But if it did, Scotland would be faced with negotiating its own EU membership. This could be through a formal application process or – since we are in uncharted waters already – through parallel negotiations to the Brexit deal. It’s impossible to say how long these negotiations would take. Even if Scotland had to apply as a new member, and follow the formal process of accession to the EU, we wouldn’t have to wait in line – there is no such thing as a queue for new membership. Although accession is normally a long process, it’s not difficult to see Scotland’s membership being fast-tracked. After all, having been part of the EU for over 40 years, Scotland already satisfies the criteria for membership.
Even then, big questions remain. New members are expected to adopt all the rules and features of EU membership. That could mean having to adopt, or at least commit to, the Euro – a prospect that may look less unattractive today than in 2014. It could also mean adopting free movement and open borders within the European Schengen Area. This is a less attractive prospect, as it could mean border controls between an independent Scotland and the rest of the UK. The conditions and features of Scotland’s EU membership would also be shaped by the kind of relationship that evolves between the UK and the EU in the coming months and years. Clearly, Scotland would not be a new member like any other. Past experience suggests that the EU can be pragmatic in applying its own rules – where there is a political will, there is a way.
There are few certainties on the path ahead. The prospect of Scotland being taken out of the EU against its will may well trigger a second independence vote. But even if Yes wins this time, the conditions of EU membership could influence whether Scots want back in.
Nicola McEwen is Professor of Territorial Politics at the University of Edinburgh and Associate Director of the Centre on Constitutional Change. A longer version of this post appeared in the Sunday Mail.