REPORT

The Future of Europe:

Disruption, Continuity and Change

6 May 2019

Strategy report setting out the big future challenges for the EU – and Scotland’s contribution to that European future

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The Future of Europe

SCER’s wide-ranging survey of the principal challenges the EU faces, seen both in a Scottish and a broader perspective, is brilliantly timed for the European Parliament election campaign and the new five-year EU institutional cycle. Real issues tackled by real experts: it makes a refreshing change from the shallow slogans of the Westminster Brexit battle. I am sure that, at least in Scotland, Mr Gove was wrong: the country has not had enough of experts. If, as I hope, Westminster finally accepts that the people should have the final say on whether we should take back Mrs May’s Article 50 notification, these considered analyses will help them make a well-informed choice. Let’s hope they are widely read, on both sides of the Border, and more widely across the EU.

John Kerr
Advisory Board Member
Scottish Centre on European Relations

The SCER team is grateful to all those who have made this report possible. Our Strategic Advisory Group for our future of Europe programme gave us insightful comment and advice from the start. All the expert authors in this volume have provided excellent in-depth analysis and been a pleasure to work with – not least in producing high-quality work in a short time frame. The SCER Advisory Board has also continued to support and encourage our work.

We held two main events in connection with this programme of work – one in Edinburgh and one in London. Many thanks to all the speakers and participants, to our Edinburgh co-organiser, the Royal Society of Edinburgh, and to our London co-organiser, the Federal Trust, for excellent, wide-ranging inputs and ideas. The report has been designed in-house by Anthony Salamone.

We are grateful to all our funders – not least to the 90 people who contributed to our crowdfunding for this project at the start of the year. We hope the ideas and analysis in this report will contribute to a broader and deeper debate on the future direction of the EU and Scotland’s contribution to that. And we very much hope to build on this programme of work in our future SCER activities.

The EU still has a strong basis from which it can create a forward-looking, overarching strategy in these turbulent and disruptive times. The EU must regain its confidence that its values, interests and rights can go together rather than be in conflict, even at a time of disruption and change.

This new report draws on a range of expert voices, from Scotland and the EU, to consider the EU’s future at this time of multiple challenges and systemic change. Across seventeen chapters, the report assesses current and future EU strategies, policies, pressures and needs and the extent of solidarity or divergence within the EU.

Each author also considers Scotland’s interests, contribution and approach in their area of focus, and suggests where Scotland can best learn from the EU, and where too, in some areas, it can offer ideas, solutions and examples of a way ahead.

The report makes 40 recommendations under five headings. These recommendations aim to contribute to an ambitious, strategic future of Europe – and to Scotland making a strong, creative contribution to that future.

1. The EU’s Strategic Future

 For the EU:
  • The EU must show renewed and imaginative political leadership as it navigates a divided Union and disruption and change globally. Differentiated integration and flexibility can be part of the answer, as long as it creates a strategic path for the EU; as a pragmatic partial route ahead, it will not be enough.
  • The EU must build on and strengthen its best strategies in key areas, including development, human rights and climate change, and continue to be a leading voice in promoting the benefits of multilateralism. It needs to urgently tackle its own divisions, and find a route to being a stronger global actor.
  • A strong new overarching and inclusive strategy for sustainable development – a green new deal and a 21st century industrial strategy – can impact strongly and guide policy, and help overcome divisions (social, political and economic) at home and internationally.
  • The EU must find new ways to work with citizens and civil society in building the future Europe. A set of European citizens’ assemblies advising on policy should be held as one major contribution to revitalising the role of the EU’s citizens in shaping future EU policy.
 For Scotland:
  • The Scottish government should develop a clear, overarching European strategy and vision, taking as its starting point the current major issues, priorities and strategic debates within, and facing, the EU as it enters its new five-year institutional cycle. This should build on, but go beyond, its existing policies, networks and areas of leadership and be taken forward in alliance with partners within Scotland and at all levels across the EU. As part of this, the Scottish government needs to take a fresh look at its soft power/para-diplomacy and develop a strong and consistent strategic framework for its European and wider para-diplomacy.

2. EU Politics: Democracy, Rule of Law and Human Rights

For the EU:
  • The EU should act to strengthen economic, social, cultural and environmental rights. It must urgently consider how to strengthen its tools to tackle rule of law issues. The EU can learn from individual countries, including Scotland, which are moving forward in specific ways on protecting economic and social rights.
  • The EU should accede to the European Convention on Human Rights.
  • Brexit shows that it is premature to consider EU citizenship a fundamental right. If Brexit happens, the EU and UK should revisit the idea of associate citizenship for UK citizens who wish to retain their EU identity in some form.
For Scotland:
  • If Brexit goes ahead then, so far as within the competence of the Scottish parliament, Scotland should try to mirror human rights developments at the EU level. Scotland should promote, and continue to invest in, its goals of being at the forefront of economic, social and cultural rights.
  • The Scottish government should institute a series of citizens’ dialogues on Europe to promote a genuine public discussion of the key European challenges and ways ahead for the EU. It should also consider launching a citizens’ assembly on the future of Europe and Scotland’s European strategy.
  • The Scottish government should undertake a series of strategic audits of its EU bilateral relations, starting with its priority countries in the EU (and identifying those) – drawing on the example of Ireland’s bilateral audits. It should also look at how to integrate European opportunities and issues into its policy-making and analysis across the board.

3. Youth, Inequality, Media and Culture

For the EU:
  • The EU needs to reform and step up how it communicates, connects and engages with its young citizens. Policy is moving in the right direction, but across all relevant policy areas youth must be more engaged in shaping policy, not just in one-way communication about policy.
  • In engaging youth, helping to create high-quality employment and tackling inequality, the EU must learn rapidly from successful and innovative youth and civil society programmes across the member states. Two particular Scottish programmes are illustrative of how targeted and bottom-up approaches can produce strong results – namely ‘Community Jobs Scotland’ and Scotland’s ‘Community Capacity and Resilience’ fund. A closer and new dialogue with civil society organisations across Europe could provide fresh thinking, offer greater engagement with marginalised groups and act as a fertile seedbed for new ideas.
  • The EU should act more urgently both to ensure media freedom is not curtailed within the EU, and to take action where it already has been. The EU should also continue to emphasise the promotion of media freedom internationally. The EU and its member states should continue their efforts to challenge and better regulate ‘big tech’ companies.
For Scotland:
  • If Brexit does happen, the Scottish government must ensure that the EU-Scotland relationship and collaboration in areas of youth work and youth mobility are maintained, so that both can continue to share ideas and approaches on being more inclusive to their young citizens.
For the UK:
  • The UK must show the UK is open for culture as well as for business. In particular, it must rapidly change its ‘hostile environment’ approach to migration policy.

4. Sustainable Development and a Green New Deal

Eurozone

For the EU:
  • Major eurozone reform, involving a very significant central fiscal, or fiscal coordination, function, is essential to address future asymmetric shocks. The ECB cannot be seen as the only bulwark against such shocks. There is also a real need to continue the process of structural reform and convergence within the eurozone to ensure less heterogeneity in the eurozone economies.
For Scotland:
  • In the current status quo, Scotland should urge the UK to encourage the eurozone to reform and to develop a central fiscal function. If Scotland did choose independence, Scotland and its political institutions should engage actively with the important area of EMU reform, while recognising the limits of its influence. Scotland should consult those smaller EU countries which have retained their own currencies, to consider how they seek to respond to some of the eurozone banking and financial architecture reforms.

EU Industrial Strategy

For the EU:
  • The new EU institutional cycle must be used as an opportunity to establish a bolder, stronger and coordinated industrial policy response across the member states, with far-reaching implications for areas such as trade, competition, research, investment screening and taxation. A failure to grasp this opportunity will most likely encourage (large) member states to go ahead with unilateral actions, with significant risks of single market and external economic policy fragmentation.
For Scotland:
  • Scotland needs to improve significantly its capacity (and influence) to make a proactive contribution to the many strategic debates taking place at EU and global levels concerning industry and trade. This could create the foundations for stronger political leadership in setting out a bolder vision of Scotland’s industrial future. This is significant for both ‘internal’ (to Scotland) and ‘external’ (beyond Scotland) audiences.
  • Scotland can and should address the persistent underperformance of Scotland’s businesses in relation to productivity, innovation, internationalisation and economic growth. A more concerted effort is required to generate the momentum and scale for a Scottish response to global, EU and UK industrial challenges, not least in light of Brexit.
  • Rather than focusing on more traditional, sectoral responses, Scottish policy-makers should target Scotland’s contribution to growth by combining historical expertise with technology-driven responses, with particular focus on addressing the challenges and opportunities of a sustainable, circular economy. The proposed Scottish National Investment Bank can play a vital role here.

Environment and Climate Change

For the EU and Scotland:
  • The EU has much more to do to deliver on its commitments under the Paris Agreement. Scotland has shown leadership by proposing to increase its long-term targets to reduce greenhouse gas emissions by at least 90% by 2050. Both need to act more ambitiously and rapidly to secure carbon neutrality by 2050, as requested by the Paris Agreement.
For the EU:
  • The EU must turn its ambitions to enhance the environmental performance of its agricultural policy into visible and sustained positive ecological impacts – which so far have been lacking. Scotland’s leadership in the field of rural development and its ‘good food’ legislation consultation are to be welcomed and could provide insight for EU policies.
For the UK and Scotland:
  • Both the UK and Scotland have shown persistent lack of compliance with EU law in controlling air quality pollution levels. Both should move rapidly to ensure full compliance.

5. Global and Neighbourhood Challenges

Common Foreign, Security and Defence Policies

For the EU:
  • The EU must prioritise finding a strategic and effective foreign policy consensus on its relationships with Russia, China and the US. Current fragmentation and diversity will not be easily surmounted, and the EU must not sacrifice its values and interests in achieving that consensus.
  • The EU must urgently strengthen its common defence capability and policies. In the face of fragmentation, approaches such as President Macron’s European Intervention Initiative provide constructive flexibility, which may also be helpful in the face of Brexit. But, ultimately, effectiveness needs stronger EU policies shared by most if not all member states.
  • The cyber domain is another major challenge for the EU. Future civilian and military operations will depend to a great extent on the use of critical and space infrastructure, common cyber assets and supply chains. The EU is taking many small steps in the right direction, but much more needs to be done if the EU is to rise quickly enough to the scale of the challenge.
For Scotland:
  • The Scottish government should develop an overarching coherent ‘para-diplomacy’ strategy. This should focus on major European and wider challenges, including protecting and developing an open liberal and multilateral international order. Such a strategy should identify where Scotland can have the most impact in promoting its values and its shared interests.

Migration Policy

For the EU:
  • The vast majority of migrants into the EU are regular, not irregular, migrants. The EU’s fragmented politics over migration and its recent emphasis on root causes of migration risks losing hard won lessons on effective EU development policy. The EU must prioritise an approach that respects its values and brings on board the largest number of member states. In doing that, it must: be realistic and evidence-based about what EU spending can achieve; build strategic action from the bottom-up – balancing long-term interests and values; and revitalise political leadership for EU conflict prevention and peace-building strategies and programmes.
  • In the face of the EU’s demographic challenges and skills needs, the EU should rapidly consider and discuss a more open migration policy. The EU must lead a pan-European debate on this, rather than reacting in a short-term way to perceived populist pressures.
For Scotland:
  • Migration policy should be devolved, at least in part, to Scotland so that the Scottish government can focus on, and respond to, the wide-ranging economic, social, research and cultural needs in Scotland for an open, flexible migration policy (not least if Brexit goes ahead). This could be done, for example, via a ‘regional visas’ approach or through Scottish national insurance numbers.

Development Policy

For the EU:
  • While welcoming the proposed increases in EU development and external funding, there is a risk that the EU’s neighbourhood is prioritised over key development needs and strategies. Civil society must scrutinise the implementation of the proposed new ‘Neighbourhood, Development and International Cooperation Instrument’ (NDICI), assessing whether in practice it addresses the most pressing needs internationally, or rather prioritises the EU’s soft power and security.
  • Policy coherence must be a core priority. While the draft NDICI proposes 25% of the instrument focuses on climate objectives, several member states and EU policies still promote other policies that have negative climate impacts. Even if only applied to mitigation of climate breakdown, root-and-branch policy coherence would be transformative.
For the EU and UK:
  • If Brexit goes ahead, and if the UK retains its prominence in international development, the EU and international development would benefit enormously from including a post-Brexit UK in EU international development strategies and policies. Both the UK and EU should consider making this work.
For Scotland:
  • The Scottish government should aim to make Scotland a policy coherence case study and through that help to influence the EU to implement policy coherence – continuing to develop or sustain a strong Scotland-EU relationship even in the face of Brexit. Scotland’s ‘relational development’ model should be rigorously and independently evaluated and any advantages also presented as a case study.

Trade Policy

For the EU:
  • In the face of challenges, not least from the US and China, to the open, rules-based global trading system, the EU must substantially step up its efforts to defend and play a leadership role in maintaining that open global system. The EU’s emphasis on greater fairness and sustainability in trade, with a new emphasis on social justice, respect for human rights, observing high labour/health and safety and environmental standards, is welcome but patchy in implementation. A more focused, committed strategic trade policy is vital.
  • Europe needs to encourage, more strategically, cutting-edge innovation and the rapid adoption of digital technology, facilitating the emergence of European ‘big tech’ firms capable of competing with American and Chinese competitors.
For Scotland:
  • The Scottish government should play to Scotland’s strengths, including a shared belief in values such as social justice, human rights, more even development as set out in the UN’s sustainable development goals (SDGs) and a fairer distribution of income and assets. Scotland should aim to play an influential role through working closely with others (within the limits of its para-diplomacy) to hold the EU to its promises and make a small but decisive contribution to a fairer and more peaceful world.
  • The Scottish government’s trade board should take on a key – and more widely publicised – role in creating an export culture in Scotland. In particular, the trade board and the Scottish government should look to create a single portal for advising firms, particularly SMEs, on entering, or expanding in, European and international markets.

EU Politics: Disruption, Continuity and Change

Kirsty Hughes | Scottish Centre on European Relations

Introduction

This overview chapter takes a broad look at the EU’s strategic challenges and current political dynamics as the EU enters a fresh institutional cycle with a new Parliament and new presidents of the Commission and Council. It also looks, in its conclusion, at how Scotland’s interests and contribution relate to those future challenges.

1. Europe’s Challenging Times

The European Union faces multiple challenges. These range from political, social, economic and democratic challenges within the EU and its member states to turbulence, disruption and change in the EU’s neighbourhood and globally.

Climate change pressures demand rapid and long-term responses from the EU and other key political actors at a time of major geopolitical shifts. The global multilateral system is under intense pressure in the face of new big power stand-offs between the US and China and a revanchist Russia – leading the EU to aim at its own goal of strategic autonomy (within a multilateral system). Technological developments promise new far-reaching and systemic innovations, while already creating governance and other challenges in the face of the rise of ‘big tech’. The development of artificial intelligence poses security, competitiveness and rights challenges. Cyber security is becoming an ever larger concern.

In the EU’s neighbourhood, conflicts, fragile states and authoritarian regimes raise multiple questions about the EU’s ability to influence and respond in a strategic way, based on its values and interests. Fragmentation and loss of solidarity in the EU over the last decade and more have undermined its ability to develop and maintain serious strategic foreign policies, neighbourhood policies and, to some extent, internal EU policies, let alone ones that fully respect human rights and the EU’s aspiration to be, and remain, a human rights leader.

Migration pressures, the euro crisis, inequality, unemployment (especially youth unemployment), rule of law challenges within the EU, Brexit, the increasing presence of far-right populist parties, the disengagement of the US (even under Obama, turned sharper and more unpredictable and damaging under Trump) – all these and more have created multiple political demands on EU member states and on the EU itself. It is no surprise, perhaps, that the EU has not risen well or enough to all of them.

Ahead of the European Parliament elections, where perhaps a third of its seats may go to populist parties, there are diagnoses a-plenty of the EU’s travails. European intellectuals call for action in the face of right-wing populism’s challenge to our basic, fundamental values (Lévy, Kundera et al 2019). Pessimists diagnose fragmentation that will ultimately lead to the collapse of the EU (Kagan 2019). Some assess more soberly how to move beyond the EU’s decade of polycrisis (European Policy Centre 2019, Dempsey 2019) and others, beyond the EU, address the wider global challenges to democracy and stability that are not unique to the EU at this critical moment (Jones and Torrey 2019).

In the face of loss of solidarity, lack of leadership and substantially varying views across member states about the EU’s future path, the risk is that the EU continues to muddle through – a response that may be more productive in some areas than others but, overall, not adequate to meet these multiple, complex, systemic challenges.

The ‘Long Decade’ 2005-2019

The EU has been through crises and challenges before. Looking back at earlier decades can sometimes suggest a rosier interpretation of the EU’s past than it warrants. The 1990s – after the fall of the Berlin Wall – certainly brought several major strategic developments, including the process of enlargement of the EU to central and eastern Europe, the single market, the creation of the euro, the Schengen border-free zone, justice and home affairs and more.

By 2004, the EU looked to be stepping up as a more powerful, more strategic actor. It had expanded to 25 member states, agreed to open accession talks with Turkey, introduced euro notes and coins, and agreed a constitutional treaty (preceded by the Maastricht and Amsterdam treaties in the 1990s and the Nice treaty in 2001). But the 1990s also saw the appalling wars and ethnic cleansing in the former Yugoslavia, and the first Iraq war. The noughties brought 9/11 and the 2003 Iraq war (amongst others). US politics and foreign policy were already changing and EU member states were divided.

Nor was internal EU politics always smooth. Germany and the UK were keener on enlargement than France. The Irish rejected the Nice treaty first time around. The constitutional convention and treaty were meant to overcome actual and perceived democratic deficits in the EU (recognised in the 2001 Laeken declaration in ringing political tones), but was rejected in French and Dutch referendums in 2005. And the UK gained its most significant opt-outs in the 1990s too – from Schengen and from the euro (followed later by its opt-ins to justice and home affairs) – ones that perhaps cemented its uneasy semi-outsider status. Yet the EU looked, then, like a confident and strategic actor in ways that currently it does not.

Some of today’s current challenges have their roots, in part, in these earlier years. The much larger EU, as it expanded towards 28 member states, had to find a new modus vivendi. The constitutional treaty, after its Franco-Dutch rejection, was reintroduced in technocratic fashion as the Lisbon treaty in 2009 – not a way to resolve the EU’s democratic deficits. Crucially, the eurozone was not well designed enough, and too large, to cope in the face of the global economic crisis after 2008. And terrorist attacks had a big impact and created insecurity, while leading to challenges to human rights in the EU and globally – as the balance between rights and security tipped the wrong way.

Enlargement and the neighbourhood: Where enlargement had once seemed like the EU’s most positive and influential neighbourhood policy, attitudes changed and politicians changed through this ‘long decade’. Merkel and Sarkozy did not take the strategic view of Turkey’s accession that Schröder and Chirac had done. Apart from Croatia’s accession, there was the opposite of urgency as far as the western Balkans path towards membership was concerned – and no such path for Ukraine. The euro crisis then started to dominate all, with damaging effects on the EU’s internal political relations and solidarity, and major negative economic effects across several economies, most but not all in southern Europe – and whose economic and political repercussions remain today.

The Arab Spring brought initial hope, and the EU recognised, for a while, that its approach to its neighbourhood had too often been driven more by its interests than its values. But turmoil and conflict followed, with several authoritarian rulers staying in or regaining power. The continuing Syrian conflict has had multiple impacts, most of all for its own people. But it also saw the US (and its EU allies) sidelined as Russia stepped in to prop up the Assad regime – and Turkey too heading in a more authoritarian direction, and pursuing its own interests in its interventions in Syria. The EU now looks more tentative and, once again, more interest-driven in its neighbourhood.

The Euro crisis: The euro crisis has dominated the EU agenda for much of the last decade. In aiming to protect the euro above all else, the EU, particularly under the leadership and decisions of Angela Merkel and Nicolas Sarkozy, imposed harsh solutions on the weaker members of the eurozone, most of all – though not only – Greece. In doing so, they also created political and democratic divisions in ways that were the opposite of creating solidarity or consensus, together with a damaging and long-lasting impact on the economies affected, not least through high levels of unemployment, particularly youth unemployment (Hughes 2011). Ironically, just as a major green new deal might have provided a route through then, so it may today (see below).

Certainly, the great financial crisis of 2007-2008 found the EU and eurozone ill-prepared for dealing with it and exposed serious design flaws, not least in the case of Greece (Anton Muscatelli, chapter 10 of this report). There have been substantial reforms since then, but these are not sufficient. One key reform that is still needed is to create a genuine, centralised fiscal function, but this remains divisive and unacceptable politically within the eurozone (Muscatelli, chapter 10). It represents a serious and deep divide, one that even the Franco-German relationship cannot currently resolve, and with continuing political and economic impacts.

Migration challenges: 2015 saw the migration crisis develop – termed by many, rightly enough, more a political and values crisis in the EU than an actual migration crisis (Hughes 2017, Pontus Odmalm, chapter 5, Andrew Sherriff, chapter 15, Cathy Ratcliff, chapter 16 of this report). It was a moment that rapidly showed up or created divisions within the EU as member states split over whether to welcome, discourage, block or move on refugees and asylum seekers. Those divisions remain central amidst today’s multiple EU challenges, even while migration flows have fallen. They also saw the EU focus on short-term responses, mostly, in the end, driven by home ministries and EU leaders, not by development, humanitarian or foreign affairs strategies (or else foreign policy strategies started to be diverted and warped towards securitisation of migration – putting EU security interests ahead of economic interests or human rights). The EU’s own demographic needs as its population ages have also barely figured in the divisive wrangling over how to handle, including whether and how to export, the EU’s migration challenge (Merritt 2019).

Democracy and rule of law: Concerns over weakening of democracy and rule of law within the EU have grown in the last decade. The EU has always been reluctant to intervene in or comment on the state of democracy in member states once they are inside the EU – a reluctance not matched in the economic sphere, especially in the euro crisis. But as Viktor Orbán’s illiberal democracy has taken root in Hungary since 2010, and as Poland too has moved to undermine its judiciary since 2015, the EU has, up to a point, intervened.

Orbán’s encouragement of anti-immigrant, anti-Muslim, anti-Semitic sentiment is well documented (Shattuck 2019). Yet in the early years of the euro crisis, the EU did little in the face of his moves to limit media freedom and undermine judicial freedoms, while notably protesting more about his efforts to undermine the independence of Hungary’s central bank. And only this year, in the run-up to the European Parliament elections, did the European People’s Party (EPP) finally suspend Orbán’s party, Fidesz, from its group. The European Parliament as a whole did, however, launch an Article 7.1 procedure in September 2018 (ie on there being a clear risk of a serious breach of the EU’s values by a member state) and called for a Council decision, but the Council has so far not moved on this (Marzocchi 2019, Maria Fletcher and Tobias Lock, chapter 2 of this report).

In the case of Poland, the Law and Justice (PiS) party came to power in 2015. Its moves to undermine the independence of Poland’s Supreme Court and so weaken the rule of law have rightly drawn major criticism. The European Commission opened a rule of law Article 7 case in December 2017 (preceded by a first phase approach in January 2016), on the basis there was a clear risk of a serious breach of the rule of law by the Polish government, followed by a hearing in June 2018. The Commission also launched a new infringement procedure in April 2019 over fresh Polish disciplinary proceedings for its judiciary.

But the EU member states have shown little willingness to move to the so-called nuclear option within Article 7 of suspending Poland’s voting rights (Fletcher and Lock, chapter 2). This leaves the EU in a situation where it is tougher on countries aspiring to joining the EU than it is on member states – and struggling to find ways to defend democracy within the EU from populist and illiberal politics in some of its member states. The EU also stood back from commenting on the imprisonment and trial of Catalan politicians – yet Amnesty International has called for the release from pre-trial detention of leading Catalan figures Jordi Sànchez and Jordi Cuixart (Amnesty International 2018).

Where the EU has provided more constructive challenge is to the behaviour of ‘big tech’ through initiatives such as the general data protection regulation, and other market dominance and behaviour challenges to the large big tech companies (Alistair Burnett, chapter 9, David Gow, chapter 17 of this report). This is a huge and still changing area with implications for democracy, media and culture across the EU (including viability of traditional media, reliability of media and media freedom). Simplistic solutions for combating fake news or outsider interference in elections can easily prove unhelpful, as seen recently with Facebook’s move to inhibit pan-European advertising by bodies not registered in each target country – a move that ran into immediate opposition in Brussels, just as European Parliament election campaigning was taking off. Yet there are pluses as well as minuses from the changing media landscape – Scotland’s vibrant social media during its independence referendum in 2014 one positive example (Burnett, chapter 9).

Brexit: As the EU emerged from the depths of the euro crisis, 2016 brought fresh challenges – the UK voted to leave the EU while, in the US, Trump was elected president, rapidly and unpredictably creating disputes with neighbours both north and south and further afield, moving into a simmering trade war with China (Gow, chapter 17, Daniel Kenealy, chapter 14 of this report).

The EU’s response to Brexit was remarkably unified, well-structured and transparent – with unity perhaps easier to keep in the face of a spiralling political crisis in the UK that, by 2019, started to look like a failing political system (Hughes 2019a). Nonetheless, Brexit has absorbed a large and unwelcome amount of political attention.

And losing, in fractious manner, one of the EU’s largest economies, supposedly (until 2016) a stable, mature democracy, a not insignificant foreign and security policy actor, a major contributor to EU development funding (Ratcliff, chapter 16) and, for proponents of free markets and free trade, an ally on that score, was not welcome for most in the midst of so many other substantive challenges. The departure (or not) of the UK has already impacted on alliances within the EU, not least the formation of the so-called Hanseatic league focused on defending the eurozone’s neo-liberal policies and emphasising liberal, free market economic policies (Anthony Salamone, chapter 4 of this report).

In the face of the UK’s political failings, in particular its government’s inability to agree a common approach to Brexit let alone find backing for it at Westminster, it is also hard to criticise the EU for not adopting a more strategic approach to how to create a new partnership with a large country on its borders. And, despite the several areas and policy positions where the UK’s absence will be felt, in other ways, the UK’s opt-outs have made it a more marginal player as the EU has struggled with the euro crisis and migration challenges – with the UK’s euro and Schengen opt-outs leaving it deliberately on the sidelines.

Indeed, the UK’s own ‘hostile environment’ approach to migration has impacted negatively on both EU citizens coming to work in the UK and non-EU migrants – damaging the UK’s international reputation even further in the process (from culture to soft power to economics and foreign policy (see Nick Barley, chapter 8 of this report)).

Nonetheless, it is not a small issue for the EU – as right-wing populists gain in support in several EU member states – to see a far-right eurosceptic, English nationalist ideology take hold in England (Sionaidh Douglas-Scott, chapter 3 of this report). And Scotland and Northern Ireland’s vote for ‘remain’ has intensified other constitutional pressures, with Nicola Sturgeon, Scotland’s First Minister arguing, in mid-April, another independence referendum was desirable in the next two years.

Public opinion in the UK has moved consistently towards ‘remain’ since the start of 2018, but there has been a lack of opposition to Brexit or leadership on a ‘people’s vote’ from the Labour party (it was never going to come from the Conservatives), leaving that to smaller parties including the Lib Dems, Scottish National Party (SNP), Greens and more recently the new Change UK party (as both Tories and Labour have started to fracture at the edges). Whether Brexit goes ahead will also have an impact both on debates about Scottish independence and its relationship to the EU (Michael Keating, chapter 6 this report) and about Irish reunification.

The current six-month extension of Article 50 may yet lead to the UK revoking it, but this is an open question and all is still to play for. While some in the EU27 are wary of a politically divided and unstable UK staying in (and some of these political fractures may take years to work through), others (not least Ireland – and President Tusk who has proved a welcome ‘remain’ voice) would welcome a UK change of heart, not least if it was part of a return to a more normal, mature democratic politics (Hughes 2019b). Even in the latter case, it is hard to see when or whether, in the next few crucial years, the UK may contribute in any serious or strategic way to debates over the EU’s future.

2. Where Next for Today’s EU?

Overall, in the 14 years from the rejection of the EU’s constitutional treaty in 2005 to European Parliament elections in 2019, where right-wing populists look set to hold a substantial number of seats, it has been a challenging ‘long decade’. The confident, strategic EU of 2004 has been replaced by a more fractured EU in 2019. Some argue that the EU has, in fact, come well through these crisis years – finding a way to be more powerful and assertive in the face of the euro and migration challenges. But the EU did not handle the euro crisis so well, and short-term ‘fortress Europe’ responses to migration challenges are not the route to a serious long-term migration and demographics strategy, nor is it a route to defeating populism.

Yet the EU is also still, or can be, a major player across key international and domestic issues. From climate change, to the unfolding new global power politics, from inequality and poverty in the EU and internationally to promoting human rights and multilateralism, the EU has a central role to play. But whether it can and will play this role, to what extent, and how successfully given the US’s retreat from Europe and its current unpredictability, is uncertain. This is the EU’s overarching challenge. Where the EU goes next will depend on how well it faces up to this challenge.

Differentiation, Fragmentation, Solidarity and Strategy

The EU has never been a fully united player across its member states and institutions. It has, however, been able to find strategic direction and impetus, at different times, from the leadership of different (alliances of) member states and institutions, and from different substantive issues and projects. But the current divides within the EU are cause for serious concern, and solutions will require considerable political imagination and creativity as well as leadership.

The Franco-German relationship has long been central to the EU’s direction – or lack thereof. But alliances across smaller and larger states and with the EU institutions have been vital too. The current Franco-German relationship is not in a strong state – though in Berlin it is seen as doing better than the view from Paris. The tentative or implicit deal, that Macron, after his 2017 election as president, would introduce structural labour market reforms and then Germany would respond on substantive eurozone reforms, has simply not been followed through in any substantive way.

Macron’s big picture, wide-ranging and quite centralising European vision (seen in his two big European speeches to date and in EU newspaper op-eds (see Macron 2019)) to some extent grates in Berlin. And, too, Macron has simply fallen foul of Germany’s changing politics with the rise of the Alternative für Deutschland (AfD) party and the twilight of Angela Merkel’s time as Chancellor with the new party chair, Annegret Kramp-Karrenbauer (2019), showing herself to be wary on engaging too readily with Macron’s European renaissance (in an article in early March for Welt am Sonntag).

In Paris, there is talk of differentiated integration, concentric circles and pragmatic coalitions on different issues as a way ahead in the unpromising circumstances of EU divisions. Certainly, these divisions can be exaggerated – the EU has long faced North-South stand-offs on some issues or divides between budget net contributors and recipients. But the East-West divide is of concern, even if it should not be caricatured (Lehne 2019) and the economic and political fallout of the euro crisis is still being felt in southern Europe, deepening the old North-South divide.

One other feature of some, at least, of the current divisions is that, whereas the EU has tended to find its way through many issues through compromise and consensus, some of the louder, more populist voices in the EU – now running from Poland via Hungary to Italy – aim to gain political leverage at home by standing firm against any compromise (while also potentially weakening the EU in the process, as an added benefit from a eurosceptic point of view (Odmalm, chapter 5 of this report)).

There are, too, real divisions on matters of substance. There is major disagreement on the eurozone’s next steps. A centralised fiscal function looks vital (Muscatelli, chapter 10) but neo-liberal northern states disagree. These are global debates too – since the global economic crisis, neo-liberalism has been rightly criticised, but no clear strategic route ahead has yet found consensus.

Leading on a green new deal: The EU is in a position to lead around sustainable development as the best strategic path ahead. To do this, it would need major new thinking on industrial strategy in the 21st century (Alison Hunter and Fabian Zuleeg, chapter 12 of this report). This has, of course, been proposed in a joint Franco-German statement/manifesto (Franco-German manifesto 2019) but with considerable pushback from Brussels and the Commission concerned, not least, about protectionism. Yet the EU has to find a way to combine its support for open markets and free trade with ensuring it has strategic influence (economic and political) in the rapidly and profoundly changing global context – and not simply stick to neo-liberal tenets (Gow, chapter 17). That includes creating the conditions both to regulate ‘big tech’ (Burnett, chapter 9) and to allow the development of European companies that can compete on the global stage in the face of the US and China moving into positions of dominance from big tech to AI.

But finding agreement on such a new strategy will not be easy. And it will need to encompass a more inclusive approach, if it is to avoid being seen to focus on big companies and globalisation alone (something some European business leaders are now supporting (Financial Times 2019)). A green new deal has been proposed at several points in the last decade (and from various different political directions). Any strategic 21st century trade and industrial policy will need to be situated in the context of creating a stronger net-zero emissions EU economy with higher and earlier targets (CAN Europe 2019). It will also need to ensure the EU’s range of climate and environment policies contribute more strongly to the Paris Agreement (Annalisa Savaresi and Miranda Geelhoed, chapter 13 of this report). Avoiding divisions within the EU through avoiding more ambitious climate targets must not be any implicit part of the EU’s approach – and the European Commission’s November 2018 proposals on a net-zero target for 2050 are a step in the right direction (European Commission 2018).

Tackling inequality and poverty in the EU and internationally: Any comprehensive green new deal will need to be a strategy that is created for and with the EU’s citizens, not least in tackling inequality and poverty across the EU (getting worse on some indicators (Lindberg 2019)). It will need to work with the EU’s youth in a bottom-up way – allowing younger people and civil society to shape policy not just be part of periodic, sometimes top-down, policy dialogues (Craig Wilson, chapter 11, and Paul Reddish, chapter 7 of this report). Within and beyond its borders, for the EU to impact positively at home and internationally, the EU’s development and trade policies will need to be fit for purpose and to move forward more progressively. The EU’s commitment to the UN sustainable development goals (SDGs) is, of course, welcome. But there are serious concerns that some of the EU’s political and policy directions risk moving backwards, unlearning key development lessons, and focusing more on the EU’s fears and divisions on migration or concerns in its own neighbourhood (Ratcliff, chapter 16).

Stronger foreign policy: At the same time, this requires positioning the EU more strongly in terms of wider foreign and defence policy in the shifting global power order, no easy task (Kenealy, chapter 14). The EU has a global strategy (EU 2016) and a broad goal of strategic autonomy. But its current divides, and some of its policy choices, do not allow the EU to be on the front foot, especially where the major powers of the US, China and Russia all have their own agendas, and where none of them is directly supportive of the EU, or even deliberately obstructive or divisive (Kenealy, chapter 14).

Divisions and fragmentation on migration have impacted on to development policy and human rights (Sherriff, chapter 15, Fletcher and Lock, chapter 2, Ratcliff, chapter 16). And from differences of view over Russian sanctions, in the face of its annexation of Crimea and intervention in eastern Ukraine, to the 16+1 China grouping, connecting China with 16 EU member states (now in fact 17, with Greece joining in April), the EU does not currently look like it is moving in the direction of more unity, even despite the European Commission labelling China a ‘systemic rival’ on investment earlier this year. The EU also faces systematic attempts from US president Trump to create divisions, not least where, on substantive issues such as the Iran nuclear deal and climate change, Trump has broken or withdrawn from previous policy agreements.

The EU must not be a bystander: The EU faces major and multiple challenges. Its internal divides make finding a powerful, strategic way through those challenges very hard. To make a reality of the goal of strategic autonomy in a world that still respects multilateralism and to find a new, focused strategic dynamic within the EU and globally is tough. But the EU cannot afford to be a bystander. It can build on existing strengths and successes – from competition and trade policy (including regulatory challenges to big tech) to much of its climate and development policies, to some of its eurozone reforms.

But it will need imaginative, acute political skills and leadership to see how to handle and build relations with more difficult and obstructionist countries both within and beyond the EU. The EU must also avoid stalling or going in the wrong direction in the face of such obstructionism. Flexibility and differentiated integration, handled carefully, can be part of the way through at the current time. But some fights, such as over the rule of law, will need to be faced straight on.

More debate across the EU can also be a constructive way to find solutions and sideline those who prefer stalemate to progress. Citizens’ debates can be one part of this, but more imaginative routes ahead would include finding ways for greater civil society roles in shaping policy – including a serious look at the role of citizens’ assemblies (which take a central role in developing core policy proposals, not simply in discussing ideas). Citizens’ assemblies at EU level might pose challenges, but a policy process whereby politicians, officials and experts have to advise a citizens’ assembly could be powerful democratically as well as in the resulting policy outcomes (Organ 2018).

The EU needs to rediscover its political and strategic skills despite the formidable political challenges to doing so at this juncture in the EU and internationally. Muddling through pragmatically will get the EU somewhere, but it will not be enough; and it will risk allowing fractures to deepen at home and the EU to be sidelined internationally. The EU has 60 years of experience in finding a path ahead. And while current challenges look exceptional, the EU can and should find a strategic route through its own divisions and to tackle these multiple challenges.

3. Scotland’s Interests and Contribution

Despite its divisions, the EU still has a strong basis from which it could create a more forward-looking overarching strategy in these turbulent and disruptive times. The EU needs to regain confidence in its values and be confident that its values, interests and rights can work together rather than be in conflict, even at a time of disruption and change. The EU needs to build on its best strategies in development, human rights and climate change and continue to be a leading voice in promoting the benefits of multilateralism. It needs to urgently tackle its own divisions, and find a route to being a stronger global actor. A strong new overarching and inclusive strategy for sustainable development – a green new deal or a 21st century industrial strategy – can shape and guide policy, have major impact (and help overcome divisions) at home and internationally.

There are different views and politics within the EU over such an agenda, and it will need to be fought and argued for. Scotland is, for now, a country within the EU – though not a state. Yet it has, as this report shows, a range of interests in, and contributions it can make to, these vital policy developments and debates, as well as to the EU’s overall future strategy. It also has a range of ways to engage in European policy networks and debates both at governmental level and through civil society, business, NGO, research, union and other networks.

The Scottish government’s European policy in the last three years has inevitably been dominated by Brexit. But Scotland already makes a wide-ranging contribution to many key areas concerning the future of Europe. From ambitious climate targets and renewable energy policies to culture, to policies on youth and inequality to a human rights strategy aimed at becoming a leading role model, Scotland has much to contribute to EU networks and debates.

Yet, at the same time, Scotland lacks a clear overarching European strategy. The Scottish government has taken some key steps in recent years, including setting up its network of hubs in Berlin, Dublin and Paris while also expanding its Brussels office (Salamone, chapter 4), and developing its Nordic/Baltic and its Arctic policies (Kenealy, chapter 14). And it is, of course, constrained by its devolved powers – having an external affairs remit, but with foreign policy reserved to UK level. Nonetheless, Scotland’s approach to para-diplomacy has waxed and waned over the years (Keating, chapter 6). Its current European approach could perhaps best be described as sectoral and pragmatic rather than a strategic, extensive para-diplomacy.

There is scope, whatever happens with Brexit – and indeed with independence – to consider a more strategic approach. This would be in Scotland’s interests. There is much material both within existing policies and through the actions of the full gamut of non-governmental actors to build a more coherent and ambitious European strategy. 2019 is a vital moment for the European Union given the substantive challenges it faces and, more specifically, as it enters a new five-year institutional cycle.

Scotland does not need to imitate the UK government and be on the sidelines of those debates; and its current engagement in a predominantly sectoral way is not allowing the creative, big picture contribution that Scotland could make to strategic EU debates to be heard. Scotland is, of course, only one voice amongst many, but other state and non-state actors across the EU have shown how to engage, network and influence. And Scotland is well-engaged in many EU networks.

What the Scottish government now needs to do is to step up strategically with a new European strategy, working in alliance with partners at all levels across the EU and domestically. It needs to identify its interests, goals, priorities and values, and create a clear strategic approach for the coming years. Through creating a coherent, high-impact policy framework, Scotland can protect and promote its European relationships and contribute to the EU’s path ahead.

This new strategy needs to be rooted in domestic participation and debates too. The Scottish government should look at creating citizens’ dialogues, following the example of President Macron in France. It should also consider establishing a fully-fledged citizens’ assembly on Europe (this could relate to the initiative announced by Nicola Sturgeon in mid-April to establish a broad remit citizens’ assembly to consider Scotland’s constitutional future). The Scottish government should undertake a strategic bilateral audit of its key EU relations, and consider how to ensure, across its policy areas, it is ‘thinking Europe’ (Salamone, chapter 4).

By the end of 2019, there will be a new European Parliament, a new Commission president and a new European Council president. They will, with the EU member states, be setting the direction of the EU for the next crucial five years. Scotland should aim to make its own constructive and strategic contribution to that new direction.

I would like to thank David Gow for his perceptive comments on this chapter, and the Strategic Advisory Group to SCER’s future of Europe programme for providing many insights into the contemporary EU and into Scotland’s European role, many of which I have drawn on in this chapter.

References

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Maria Fletcher | University of Glasgow
Tobias Lock | National University of Ireland, Maynooth

Introduction

This chapter looks at human rights in the EU and Scotland. It begins with a summary of the historical development of human rights protection within the scope of EU law and, next, highlights some of the current challenges the EU faces and its current aspirations as a human rights actor. This chapter then assesses Scotland’s recent activity in the field of human rights protection and, against the backdrop of European Union human rights protection, suggests how and to what extent it might lead or follow vis-à-vis the European Union and other states/sub-states. Scotland, and two prominent areas of recent activity, are next highlighted.

Interestingly, both the EU and Scotland are placing prominence on better protection of social rights, and while elite-level political ambitions are admirable, legal constraints are equally considerable. Nonetheless, there is some scope for cross-fertilisation to push agendas onwards and upwards in terms of rights protection.

The European Union: Achievements and Developments

While there was no overt reference to human rights in the founding treaties (European Commission 2018) of what we know today as the European Union, human rights emerged from the late 1960s onwards through judicial and political discourse.

The European Court of Justice (CJEU) first articulated a new constitutional account of the role of human rights in the Community (today, EU) legal order. From 1969 in Stauder (CJEU 1969), later consolidated in Internationale Handelsgesellschaft (CJEU 1970) and Nold (CJEU 1977), the court declared that respect for fundamental rights – inspired by the common constitutional traditions of the member states and international human rights treaties on which they collaborated – was to be part of the general principles of Community law and would be protected by the court.[1]

The EU’s political institutions backed up this judicial development in a 1977 Joint Declaration of the European Parliament, Council and Commission on fundamental rights, which asserted that that they too would respect these fundamental rights, as general principle of EC law, in the exercise of their powers.

It was not until the early 1990s, with the Treaty of Maastricht amendments, that the constitutional treaty framework for human rights protection began to take shape. For the first time, formal treaty recognition was given to human rights and fundamental freedoms as part of EU law, a development that coincided with the expansion of EU competences to policies having a direct impact on individuals’ human rights, such as criminal and civil law cooperation, policing and immigration and asylum.

This was followed in 1997 by the Treaty of Amsterdam, which affirmed that the European Union was ‘founded on’ respect for human rights[2] and which significantly enhanced the equality principle in EU law by empowering the EU institutions to adopt legislation to combat discrimination across a range of grounds – sex, race or ethnic origin, religion or belief, disability, age or sexual orientation – within the fields of existing EU competences.[3] The Treaty of Amsterdam also introduced the ‘suspension of rights’ mechanism for any EU member state which was found responsible for a serious and persistent violation of the EU’s founding values – which include human rights[4] – amended several years later by the Treaty of Nice to cover situations involving a risk rather than actual violation of rights.[5]

Following a novel and inclusive process of consultation and negotiation, the EU Charter of Fundamental Rights and Freedoms was drafted and ‘proclaimed’ in 2000, at the time of the Treaty of Nice. The charter offers a full articulation of the range of civil, political, economic and social rights which should be protected within the scope of EU action. Significantly, it was given binding legal status by the Treaty of Lisbon in 2009. At the same time, the Treaty of Lisbon introduced an obligation for the EU to accede to the European Convention on Human Rights.[6]

These constitutional developments were, over time, complemented by institutional changes such as the establishment of a network of independent experts on fundamental rights (now defunct) and the EU Fundamental Rights Agency. In short, as the EU has evolved, it has done so with increasing reference to the value of, and need to protect, human rights.

EU Shortcomings

Despite the EU’s ambitions in the field of human rights, one can identify a number of legal and actual shortcomings as far as the current level of protection is concerned.

Limited reach of the Charter: The Charter of Fundamental Rights is primarily binding on the institutions of the EU. It is only binding on the member states when they are implementing Union law. This is the case when a member state institution is either applying EU law (CJEU 2013) – for example, when executing a European arrest warrant – or where a member state is restricting EU fundamental freedoms (CJEU 2014a) – for example, a member state restricting the advertising for certain products from other member states for reasons of child protection. Thus, the large number of rights – compared with most domestic bills of rights – guaranteed by the charter can only be invoked before the national courts in a limited set of circumstances.

Failure to accede to the ECHR: The Treaty of Lisbon, in Article 6(2) TEU, provides an explicit legal basis for the accession of the EU to the European Convention on Human Rights (ECHR).[7] Indeed, it places the EU under a duty to accede. Such accession would have the objective of increasing the effectiveness and coherence of fundamental rights protection in Europe by subjecting the EU to external scrutiny by the Strasbourg court; but, as of today, this has yet to take place. After negotiation and the conclusion of a draft accession agreement, the Commission asked the CJEU for an opinion on its compatibility with the EU treaties. To huge surprise and criticism, the CJEU in Opinion 2/13 (CJEU 2014b) found it wanting on a number of grounds, including that it ran counter to the autonomy of the EU legal order. There are currently no accession negotiations taking place.

Striking a balance between mutual trust and fundamental rights: The Area of Freedom, Security and Justice (AFSJ) encompasses a range of particularly sensitive policy fields, including immigration, asylum, border control, civil and criminal law cooperation and cross border policing. As such, it is an area of EU action in which special consideration must be given to human rights and yet the EU has struggled to do so (Heikkilä et al 2015), hampered by a strong security focus, a lack of coherence and a lack of solidarity among member states.

One particularly challenging stumbling block has been the underpinning organising principle of mutual recognition, which works on the basis of an assumption of trust in other member states’ legal systems and standards to effect quasi-automatic acceptance of judicial decisions. For instance, member states have to execute each other’s arrest decisions unless they can invoke one of the exceptions laid down by EU secondary law; such exceptions do not include fundamental rights. The problem is that the foundation of trust is not solid. Member states may be bound by the same rules, including, harmonised rules within the framework of the AFSJ or general principles of EU law and obligations pursuant to the ECHR and the EU Charter of Fundamental Rights, but in reality this does not always secure equivalent protection of rights. A key question then is where and how human rights fit into a legal framework that has mutual recognition and trust at its core.

The court has grappled with this question in the last decade, more recently acknowledging that mutual trust is not ‘blind’ and therefore can and should be rebuttable but, in view of the fundamental character of the principle of mutual recognition, it must only be rebutted and limited in exceptional circumstances. The CJEU (2011), following a judgment of the European Court of Human Rights (2011) to broadly the same effect, first accepted that exceptions to the principle of mutual recognition on fundamental rights grounds, even in the absence of explicit provisions in secondary law, were possible in the context of EU asylum law. A similar finding (CJEU 2016) in the context of criminal law followed in 2016, where fundamental rights concerns could prevent the transfer of a criminal suspect under the terms of the European Arrest Warrant Framework Decision. In general terms, such non-execution of mutual recognition instruments in the field of asylum and criminal justice, where fundamental rights are so clearly at stake, should be treated as a signal of serious problems.

Weak protection of social rights in the charter: Apart from its limited applicability in the member states, the charter has a further – less apparent – weak point: the protection of social rights. While its solidarity chapter contains a long list of provisions dealing with social issues – protection of employees, social security and social assistance, health care, and more – these are often mere ‘principles’ and not ‘rights’. This difference is significant in that, in contrast to rights, charter principles require prior implementation by the legislator or the executive and are ‘judicially cognizable only in the interpretation of such acts and in the ruling on their legality’.[8] This means that the protection they offer is weaker than that offered by other charter provisions, in particular those embodying civil and political rights.

That said, the charter has been in force for less than ten years now and the case law on its reach is still developing. For instance, recently the CJEU (2018b) recognised that Article 31(2) of the Charter giving every worker a right to the limitation of maximum working hours, to daily and weekly rest periods and to annual leave was horizontally effective (it could be invoked not only against the Union and the member states, but also against private employers). It remains to be seen if developments in this direction could lead the way towards a healthier recalibration of the balance between economic and social rights in the EU.

Rule of law crisis: The ongoing rule of law crisis in certain EU member states, Hungary and Poland in particular, reveals a further shortcoming. It raises serious doubts over whether the EU possesses adequate means of addressing instances of human rights and rule of law backsliding in its member states. The only means of sanctioning such backsliding is provided for by Article 7 of the Treaty on European Union. That article provides for a two-step procedure: the European Council can – with the consent of the European Parliament – determine that there is a ‘clear risk’ of a serious breach of the EU’s values by a member state. Such a finding does not have any immediate legal consequences. Only if, in a second step, the European Council finds unanimously, and with the consent of the European Parliament, that there has been a ‘serious and persistent breach’ of these values by a member state, can that member state’s voting rights be suspended – the so-called “nuclear option”. However, this latter consequence requires a further vote in the Council, this time acting by qualified majority.

In the case of Hungary, Article 7 TEU has not yet been activated, to considerable criticism. In the case of Poland, the European Commission issued a reasoned proposal at the end of 2017, endorsed by the European Parliament, calling, for the first time in the history of the Article 7 TEU procedure, for the European Council to adopt a ‘nuclear option’ decision against Poland. At the time of writing (European Commission 2017b) no such decision has been taken. The political and practical burdens of Article 7 TEU apparently severely limit its use as an effective legal tool. Meanwhile, other legal routes (CJEU 2018a) to try to (indirectly) challenge these problematic state reforms in the courts have been found.

Migration Crisis

The EU’s policies towards asylum seekers and migrants from third countries has raised further human rights concerns (Human Rights Watch 2018). Particular criticisms relate to the EU’s policy of externalisation, where third (allegedly safe) countries such as Turkey agree to host potential asylum seekers even though reception conditions and the asylum system in these countries are hardly compliant with EU human rights standards.

In addition, detention centres in some EU member states suffer from overcrowding and conditions that are in violation of human rights. Finally, the EU is criticised for not doing enough to prevent migrant deaths in the Mediterranean.

EU Ambitions

Recent years have seen the EU focus more attention on better protection of fundamental social rights. After a relatively modest start with the non-binding Community Charter on Fundamental Social Rights for Workers in 1989, adopted by all member states apart from the UK, the inclusion of numerous social provisions in the EU Charter of Fundamental Rights – binding since 2009 and the Treaty of Lisbon’s entry into force – marked an important step despite its deficits noted above.

More recently, in late 2017, the European Parliament, Council and Commission solemnly proclaimed the European Pillar of Social Rights (European Commission 2017a). It spells out a number of economic and social rights in a (non-legally binding) document. A clear focus is on employment objectives, but it contains broader commitments concerning housing and access to essential services. Further evidence of the EU’s commitment to the advancement of social rights can be found in the EU’s external human rights policy (European Parliament 2018).

Commitments and ambitions aside, it is clear that the EU as a human rights actor faces considerable hurdles and challenges – be they political or legal.

Scotland and Human Rights

The Scottish government is generally supportive of human rights and pursues a policy of embedding human rights into its day-to-day business. That high-level ambition does not lead to human rights compliance in all cases, however. Recently, the Council of Europe’s Commissioner for Human Rights (Council of European 2018) called on Scotland to increase the age of criminal responsibility in order to better protect the rights of children. Another common critique (Human Rights Consortium 2018) of Scotland’s human rights record relates to high levels of poverty in the country.

That said, Scotland has recently seen the adoption of measures that have the potential of putting it, in some ways, at the forefront of the development of human rights protection in Europe. Two developments of particular relevance are the introduction of a ‘right to social security’ in the Social Security (Scotland) Act 2018 and the report of the first minister’s advisory group on human rights leadership. Both are particularly innovative in the field of economic, social and cultural rights, which the above discussion identified as one of the weak points in the human rights protection guaranteed by EU law.

The Right to Social Security

The Social Security (Scotland) Act 2018 has been described as being without parallel in its expression of a particular vision of what a social security system should be (O’Cinneide 2019). It embodies a rights-based approach to social security in Scotland and is thereby reflective of international human rights law.[10]

The Social Security (Scotland) Act 2018 grounds social security – as far as it is devolved to Scotland – in a right to social security, which, in the words of the Act, ‘is itself a human right and essential for the realisation of other human rights.’ Coupled with other social security principles mentioned alongside it, this marks a departure from the approach in UK-wide social security law.

The effects of the ‘right to social security’ are not yet entirely clear, but it is very likely that the rights-based approach will frame political and legal arguments on the distribution of social security payments in Scotland. It is, therefore, not merely a symbolic step, but also a substantive one.

Despite that, the legal effects of the Social Security (Scotland) Act 2018 are curtailed. First, it only applies to those aspects of social security that are devolved (currently amounting to around 15% of the overall welfare budget). Second, there is an ambiguity latent in the Act in that the right to social security is listed as one of the ‘Scottish social security principles’ and according to the Act ‘breach of the principles does not of itself give rise to grounds for any legal action’. The justiciability of the right to social welfare is therefore severely limited.

Nonetheless, the overall approach is innovative and – if it proves successful – may well provide a positive example leading other European states to adopt similar rights-based approaches.

Future Developments in Scotland

The Social Security (Scotland) Act 2018 may, in time, prove to be only a first step towards greater protection of economic, social, cultural, and environmental rights in Scotland. In January 2018, the Scottish first minister, Nicola Sturgeon, appointed an advisory group on human rights leadership which was tasked with leading ‘a participatory process to make recommendations on how Scotland can continue to lead by example in human rights, including economic, social, cultural and environmental rights.’

These political efforts and resulting commitments were motivated by Brexit and the resulting disappearance of the Charter of Fundamental Rights from Scots law. Under the Scotland Act 1998 – while the UK is still an EU member state – the Scottish parliament is not able to adopt legislation that contravenes EU law, including EU fundamental rights. After Brexit, this will change, not only because of the mere fact of the UK having left the EU, but particularly because the UK parliament singled out the Charter as the only major piece of EU law that would not be carried over into UK law, as so-called ‘retained EU law’, post-Brexit.[11]

The advisory group (2018a)[12] recommended the adoption of an Act of the Scottish Parliament that would 1) restate the civil and political rights already contained in the UK’s Human Rights Act 1998; 2) introduce key social, economic and cultural rights, the right to a healthy environment and specific rights belonging to children, women, persons with disabilities, on race and rights for older persons and for the LGBTI communities into Scots law.

Crucially, the Act would contain schedules outlining the content of these newly introduced rights and would stipulate a duty on the Scottish government to ‘progressively realise’ those rights using ‘the maximum of available resources’.

The first minister endorsed the report and announced (Advisory group 2018b) that she would set up a national task force in early 2019 to start implementing the recommendations.

If the Act is adopted as recommended, it would oblige all three branches of government to give effect to the rights protected by it. The Scottish parliament would be under an obligation to give effect to rights in subsequent legislation and its human rights committee would be given an enhanced role in pre-legislative scrutiny. The Scottish government would need to give effect to these rights in two stages: initially, its obligations would be limited to a duty to give due regard to these rights; later, this duty would mature into a duty to comply with the rights. Finally, the judiciary would be enabled, as a last resort, to review compliance with the rights protected by the Act.

If the advisory group’s recommendations are followed, Scotland could become a leader in the protection of human rights – particularly economic, social, cultural and environmental rights – in Europe.

Conclusion: Potential for Cross-Fertilisation

The above discussion has shown that both Scotland and the EU have high ambitions to be human rights leaders even though their practical record does not always live up to that ambition. They have in common that they operate under similar constraints in that they are not able to enact human rights laws that are applicable in all circumstances due to their limited competences.

There is, notwithstanding these limitations and the complexities of human rights protection more generally, potential for cross-fertilisation.

So far as within the competence of the Scottish parliament, Scotland can try to mirror human rights developments at the EU level and thereby remain in step with them. The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill – partly struck down by the UK Supreme Court (2018) in December 2018 – contained a clause granting the Scottish government powers to bring EU law introduced after Brexit into Scots law for a period of three years after exit day. This provision was considered to be within the competence of the Scottish parliament and the Scottish government (2019) announced that it would bring forward legislation with the same effect. It nonetheless shows an openness on part of the Scottish parliament to the idea of keeping in step with developments at the EU level despite Brexit.

Cross-fertilisation could equally happen the other way around over time, even though it would probably be harder to achieve in practical terms. It is possible to distinguish two scenarios. First, the EU might take inspiration from developments in Scotland and other states around promoting the protection of economic, social, cultural and environmental rights, after all the ‘common constitutional traditions of the member states’ are a recognised source of EU fundamental rights There would be obvious limits in legal terms: as far as the EU institutions are concerned, they can only act within the powers conferred upon them and the social sphere is largely not covered by those powers. But we have seen that non-legal initiatives in relation to the protection of social rights are underway at the EU level, which is a first and important step. As far as the potential for Charter reform is concerned, this would require treaty change and there is no discernible willingness on the part of the member states to go down that route, certainly, at the moment.

The second scenario would see individual member states – be it at the state or sub-state level – take inspiration from developments in Scotland outlined above. There is some potential for this. For instance, the Irish Convention on the Constitution recommended in 2014 that economic, social and cultural rights should be better protected in Ireland. Yet so far this proposal has not been taken forward by the political elites. A positive experience in Scotland in this regard might change this.

The EU’s record on human rights advancement and protection is certainly patchy, despite the supportive rhetoric, ambitions and the legal arsenal at its disposal. Where constitutional frameworks are not complete and indeed intertwined – as with the EU and Scotland – it is often the judicial branch that plays a crucial role in identifying, interpreting and applying fundamental rights exceptions and protections.

Information-sharing and mutual-learning through engagement in bodies such as the European Network of Equality Bodies may assist with cross-fertilisation and take on a particular resonance for Scotland and the UK following withdrawal from the EU.

References

Advisory Group (2018a) ‘Recommendations for a New Human Rights Framework to Improve People’s Lives: Report to the First Minister’, First Minister’s Advisory Group on Human Rights Leadership, 10 Dec 2018, https://humanrightsleadership.scot/wp-content/uploads/2018/12/First-Ministers-Advisory-Group-on-Human-Rights-Leadership-Final-report-for-publication.pdf

Advisory Group (2018b) ‘Update – Recommendations for a New Human Rights Framework to Improve People’s Lives: Report to the First Minister’, First Minister’s Advisory Group on Human Rights Leadership, 10 Dec 2018, https://humanrightsleadership.scot/wp-content/uploads/2018/12/First-Ministers-Advisory-Group-post-10th-December-update.pdf

CJEU (1969) Case C-29/69 – Stauder v Stadt Ulm, Judgment of the Court of 12 November 1969, Court of Justice of the European Union, http://curia.europa.eu/juris/liste.jsf?language=en&jur=C,T,F&num=29-69&td=ALL

CJEU (1970) Case C-11/70 – Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel, Judgment of the Court of 17 December 1970, Court of Justice of the European Union, http://curia.europa.eu/juris/liste.jsf?language=en,T,F&num=11-70

CJEU (1977) Case C-4/73-DEPE – Nold KG v Commission, Order of the Court of 11 January 1977, Court of Justice of the European Union, http://curia.europa.eu/juris/liste.jsf?language=en,T,F&num=C-4/73

CJEU (2011) Joined Cases C‑411/10 and C‑493/10, Judgment of the Court (Grand Chamber) of 21 December 2011, Court of Justice of the European Union, http://curia.europa.eu/juris/document/document.jsf?text=&docid=117187&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=1447238

CJEU (2013) Case C‑617/10 – Åklagaren v Hans Åkerberg Fransson, Judgment of the Court (Grand Chamber) of 26 February 2013, Court of Justice of the European Union, http://curia.europa.eu/juris/document/document.jsf?docid=134202&doclang=EN

CJEU (2014a) Case C-390/12 – Pfleger and Others, Judgment of the Court (Third Chamber) of 30 April 2014, Court of Justice of the European Union, http://curia.europa.eu/juris/liste.jsf?language=en&num=C-390/12

CJEU (2014b) Opinion 2/13 of the Court (Full Court) of 18 December 2014, Court of Justice of the European Union, http://curia.europa.eu/juris/document/document.jsf?text=&docid=160882&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=1446956

CJEU (2016) Joined Cases C‑404/15 and C‑659/15 PPU, Judgment of the Court (Grand Chamber) of 5 April 2016, Court of Justice of the European Union, http://curia.europa.eu/juris/document/document.jsf?text=&docid=175547&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=1447662

CJEU (2018a) Case C-216/18 PPU – Minister for Justice and Equality, Judgment of the Court (Grand Chamber) of 25 July 2018, Court of Justice of the European Union, http://curia.europa.eu/juris/liste.jsf?language=en&td=ALL&num=C-216/18%20PPU

CJEU (2018b) Joined Cases C-569/16 and C-570/16, Judgment of the Court (Grand Chamber) of 6 November 2018, Court of Justice of the European Union, http://curia.europa.eu/juris/document/document.jsf?text=&docid=207330&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=1447775

Council of Europe (2018) ‘Commissioner Urges Scotland’s Government to Increase the Age of Criminal Responsibility’, Letter (6 Dec 2018), Commissioner for Human Rights, 20 Dec 2018, https://www.coe.int/en/web/commissioner/-/commissioner-urges-scotland-s-government-to-increase-the-age-of-criminal-responsibility

ECHR (2011) Case of MSS v Belgium and Greece, Application No. 30696/09, Judgment (Grand Chamber) of 21 January 2011, European Court of Human Rights, https://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=001-103050&filename=001-103050.pdf&TID=cwvzdogrzt

European Commission (2017a) European Pillar of Social Rights, 18 Oct 2017,
https://ec.europa.eu/commission/sites/beta-political/files/european_pillar_of_social_rights.pdf

European Commission (2017b) ‘Rule of Law: European Commission Acts to Defend Judicial Independence in Poland’, 20 Dec 2017, http://europa.eu/rapid/press-release_IP-17-5367_en.htm

European Commission (2018) About the EU: EU Treaties, 4 Jun 2018, https://europa.eu/european-union/law/treaties_en

European Parliament (2018) ‘Enhancing EU Actions on Economic, Social and Cultural Rights within its Human Rights Policy’, PE 603.838, Feb 2018,
http://www.europarl.europa.eu/RegData/etudes/STUD/2018/603838/EXPO_STU(2018)603838_EN.pdf

Heikkilä, M, Mustaniemi-Laakso, M, Egan, S, Finlay, G, Lewis, T, Heschl, LM, Salomon, S, Planitzer, J, Sax, H (2015) ‘Critically Assessing Human Rights Integration in AFSJ Policies’, FRAME, 31 Oct 2015, https://repository.gchumanrights.org/handle/20.500.11825/107

Human Rights Consortium Scotland (2018) ‘Submission to the UN Office of the High Commissioner for Human Rights’, Sept 2018, https://www.ohchr.org/Documents/Issues/EPoverty/UnitedKingdom/2018/NGOS/HumanRightsConsortiumScotland.pdf

Human Rights Watch (2018) ‘Towards an Effective and Principled EU Migration Policy: Recommendations for Reform’, Jun 2018, https://www.hrw.org/news/2018/06/18/towards-effective-and-principled-eu-migration-policy

O’Cinneide, C (2019) ‘The Social Security (Scotland) Act 2018? – A Rights-based Approach to Social Security?’, Edinburgh Law Review, 23 117(119)

Scottish government (2019) Continuity Bill Update, 5 Apr 2019, https://www.gov.scot/news/continuity-bill-update

UK Supreme Court (2018) The UK Withdrawal from the European Union (Legal Continuity)(Scotland) Bill – A Reference by the Attorney General and the Advocate General for Scotland, Judgment, [2018] UKSC 64, 13 Dec 2018, https://www.supremecourt.uk/cases/uksc-2018-0080.html

[1] Some years earlier, the CJEU had affirmed the principles of direct effect and of primacy of EU law, after which certain national courts began to express concerns about the effects which such case law might have on the protection of constitutional values such as fundamental rights. If EU law was to prevail even over domestic constitutional law, it would become possible for it to breach fundamental rights.
[2] Articulated today in Article 2 of the Treaty on European Union (TEU).
[3] Then Article 13 EC, now Article 19 TFEU.
[4] Article F.1 TEU (Treaty of Amsterdam).
[5] Article 7 TEU (Treaty of Nice).
[6] Article 6(2) TEU.
[7] Discussions on accession had been on the EU agenda for decades. In 1994, in Opinion 2/94, the Court insisted that the treaties lacked the appropriate legal competence provisions for accession.
[8] Article 52(5) of the EU Charter of Fundamental Rights.
[10] See Article 22 of the Universal Declaration of Human Rights; Article 9 of the International Covenant on Social, Economic and Cultural Rights; and Articles 12 and 13 of the European Social Charter.
[11] See s. 5(4) European Union (Withdrawal) Act 2018.
[12] Tobias Lock was a member of the First Minister’s Advisory Group on Human Rights Leadership.

Sionaidh Douglas-Scott | Queen Mary, University of London

The EU’s Strategy, Challenges and Opportunities

In general, citizenship involves being a member of a particular national community. It usually includes certain rights or privileges not granted to non-members, such as the right of political participation in a community – including voting, participating in government and receiving state protection. Citizenship usually also involves obligations, such as the duty to pay taxes, or to fight in time of war, and notably has been, almost everywhere, territorial, and associated with states.

The legal concept of EU citizenship was formally introduced in 1993 by the Treaty of Maastricht, although it has earlier origins in the 1984 Fontainebleau European Council discussions on a ‘People’s Europe,’ and the 1974 EEC Paris summit.

EU citizenship now has formal constitutional status in EU law. EU citizenship is exceptional and noteworthy for granting citizenship, and associated rights, of a supranational community. In this way, it appears to move beyond the association of citizenship and statehood. Notably, however, it is not free-standing but derivative from existing national citizenship. Article 9 of the Treaty of European Union (TEU) provides ‘Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.’ EU citizenship is also addressed in Articles 20-24 of the Treaty on the Functioning of the European Union (TFEU). The citizens’ rights directive (2004/38/EC) spells out and gives further details of the ways in which EU citizens and their families may exercise rights of free movement and residence, and permitted restrictions on those rights on grounds of public policy, public security or public health.

EU citizens acquire a bundle of legal rights by virtue of their status. The majority of these rights are enjoyed by EU citizens who have exercised rights of free movement throughout the EU, but a limited number of rights may be relied on by EU citizens against their member state of nationality in the absence of cross-border movement.

In 2001, in the Grzelczyk case, the European Court of Justice (ECJ) held that EU citizenship was destined to be ‘the fundamental status of nationals of the Member States.’1 However, this was not a status embraced by ‘leave voters’ in the 2016 EU referendum, and European citizenship is sometimes seen as having a weak affective dimension in contrast to national citizenship. This is partly because of a perceived lack of both an EU identity and EU demos (or people). Indeed one view2 asserts the no-demos thesis, arguing there can be no effective democracy in the EU because the EU lacks a demos.

In contrast, supranationalists affirm the existence of a European demos and understand the EU as entailing a progressive transfer of loyalty from the states to the Union. However, a third, increasingly popular, view asserts that the EU is a community of peoples as well as of states – that Europe is a ‘demoi-cracy’ (a polity of multiple demoi or peoples) and should be evaluated as such (Nicolaidis 2012). These diverse views illustrate the varied and fluid approaches to EU citizenship, and of course have implications for the solidarity displayed for EU citizens of other member state nationalities.

A current challenge for EU citizenship is that of combatting extreme nationalist views, especially any which might surface in the May 2019 European Parliament elections. If anti-European parties win a significant minority of seats they might align tactically enabling them to, for example, prevent sanctions against Russia, block the EU’s international trade agenda or severely restrict migration. This might threaten the EU’s capacity to demonstrate resolve, cooperation and leadership, as well as its ability to protect its citizens (Dennison and Zerka 2019).

Notwithstanding these challenges, it should be remembered that EU citizenship is unique in being the only model in the world to bring together people of different nationalities through the legal concept of a supranational citizenship. This is a great achievement, although, undoubtedly, it has not reached its full potential.

Scotland’s Interests, Contribution and Influence

When the UK leaves the EU, if Brexit goes ahead, it will cease to be an EU member state. As a result of this, UK nationals will lose their EU citizenship, and non-UK EU citizens who wish to live/work in the UK will lose their EU-derived rights to do so. EU citizenship is derivative of member state nationality, and not a self-contained status enjoyed independently of it.

However, until the UK leaves, EU law continues to apply and should be enforced in the UK. But notably, although provisions on EU citizenship apply to the UK, the UK has opted out of most EU immigration law, including the Schengen Accords, which create a common European area and framework for visas and border control. At present, as a result of the UK’s EU/EEA (European Economic Area) membership, EU/EEA/Swiss nationals, and dependents, are exempted from the need for immigration leave. After five years’ continuous residence, they acquire a permanent right to reside in the UK under the EEA Regulations.3

As the law stands at present, immigration control and EU treaty negotiations are reserved matters for the UK government under the Scotland Act 1998. Therefore, absent further devolution of immigration policy, there is only limited scope for Scotland to obtain a differentiated settlement from the rest of the UK on EU citizenship. However, notably, in December 2016, the Scottish government published its proposals for a differentiated solution for Scotland, in its paper, ‘Scotland’s Place in Europe’,4 making a case that even in the event of a ‘hard Brexit’ in the rest of the UK, Scotland could retain its single market membership. Such a differentiated solution seems however to have been rejected by the UK government, and, in March 2017, the Scottish parliament voted in favour of holding a second independence referendum in Scotland within the next few years.

EU/EEA Citizens from Elsewhere in the EU Who Reside/Work in the UK

At present, there are about 3.5 million EU/EEA nationals in the UK who will have to use the UK’s ‘settlement scheme’[5] to remain in the UK beyond Brexit. About 223000 of those EU citizens live in Scotland.[6]

If a withdrawal agreement[7] is concluded between the UK and EU, EU nationals will be able to work and settle in the UK much as at present until 31 December 2020 (the end of the transition period foreseen in the draft withdrawal agreement, but possibly extendable). After that date, EU citizens entering the UK would need a work visa. EU citizens who will have been in the UK for five years or more by 31 December 2020 can apply for ‘settled status’.[8] However, EU citizens with settled status will lose that status – and their right to stay in Britain – if they leave the UK for more than five years. Notably, if the UK leaves without a deal, the Home Office has stated that the EU settlement scheme will still run. However, there would be some important changes, including that the cut-off date for arriving in the UK would be the Brexit date, not 31 December 2020.

The impact of Brexit on EU citizens in the UK also depends on the future relationship between the UK and EU. For example, if the UK joins the EEA, in a ‘Norway-style’ arrangement, free movement of persons would still continue under Part III of the EEA agreement. However, EU citizenship is not protected under the EEA, which could affect for instance residence rights for family members of the EU citizen (see for further elaboration the Ruiz Zambrano case of the ECJ[9]).

Specific Scottish Issues

The 2017 UK government white paper argued that an important UK strength is ‘our identity as one nation’.[10] Yet both before and since devolution, the UK’s four nations have developed distinct legal, cultural and social identities, and of course both Scotland and Northern Ireland voted remain in the 2016 referendum, evidencing perhaps a greater embrace of EU identity and citizenship.

Differences are especially evident in the field of immigration. EU citizens make a vital contribution to Scotland and to its economy, society and culture, and ending free movement of people will have a negative impact on Scotland’s wider economy and society as a whole.[11] Indeed, EU migration helped reverse the trend of a declining population that was a key concern in the early years of the Scottish parliament. EU citizens have become a crucial part of Scotland’s labour market, and EU workers have been crucial to many sectors, ranging from agricultural workers, through hospitality, to skilled engineers and scientists in high-growth sectors.[12]

The UK government immigration white paper,[13] released in December 2018, sets out a post-Brexit immigration vision. It proposes visas for EU citizens after Brexit and future post-Brexit EU migrants would need to meet the £30000 immigration threshold for a Tier 2 Visa application. Such restrictions would considerably cut international migration to Scotland, with far-reaching consequences for the economy. For example, three-quarters of social care services in Scotland currently have vacancies, according to Scottish Care, with 44% relying on the EU as a recruitment source. If these new immigration targets were to be implemented, it is unlikely that such vacancies would be filled.[14]

It has been suggested that, were Scotland given direct control over immigration and asylum, this could provide a solution, forestalling post-Brexit drastic reductions in immigration. Such control could take the form of ‘regional visas’ or the special use of Scottish national insurance numbers. The City of London Corporation published a report on regional visas, highlighting that such systems exist elsewhere.[15] However, the UK government has stated that it would not devolve immigration policy to Scotland.[16]

Notably and ironically, EU citizens were unable to vote in the 2016 EU referendum, as this franchise was determined nationally, as relating to the Westminster parliament franchise. In contrast, however, EU citizens have the right to vote in the Scottish parliament and local government elections, which are devolved matters under s.3 of the Scotland Act 2016, and the Scottish government has said it will ‘protect the electoral franchise for EU citizens in Scotland.’ The Scottish parliament could also decide to continue the current status of EU citizens regarding higher education (not charging fees, for example). Furthermore, on 5 April 2019, the Scottish government launched its ‘Stay in Scotland’ campaign, a package of support to help EU citizens stay in Scotland, building on earlier support and advice it had given to EU citizens in Scotland.[17]

However, whatever steps are taken, undeniably, there are already signs of a ‘hostile environment’ for EU citizens in the UK, rendering the UK, and by default Scotland, a less attractive location for EU citizens.[18]

UK Nationals Resident in Other EU States Post-Brexit

There are currently about 1.3 million UK citizens[19] in other EU member states. Post Brexit, they will lose their EU citizenship (unless they have another EU nationality) and will be treated as third-country nationals, unless the UK agrees their status as part of the withdrawal agreement.

The withdrawal agreement guarantees British citizens lawfully resident in EU member states roughly the same rights as they have at present. They can continue to live, work and travel (although these rights would cease after a leave of absence of more than five years). The same would apply to British citizens moving to the EU during the transition period, but not to British citizens moving after any transition has ended. It is unclear whether British citizens living in EU countries will be able to move freely to other EU countries after Brexit, which would be dealt with in the negotiations on the UK’s future relationship with the EU.

Under a ‘no-deal’ Brexit, British citizens would be in a less favourable situation. In July 2018, the EU stated that it would be member states, and not the EU, which decided what rights to grant British citizens in their states, so the level of disruption depends on what those states do.[20] A recently leaked European Commission paper[21] revealed many different approaches, levels of preparedness and openness from the EU27, Iceland, Norway, Lichtenstein and Switzerland, in the event of a no-deal Brexit. The most generous countries – Denmark, Norway, Cyprus, Austria, Slovakia, Italy, Bulgaria, Malta, Croatia and Romania – will offer permanent national ‘regularisation’ to British citizens. Switzerland has concluded a bilateral agreement with the UK preserving the rights of citizens covering any scenario. UK nationals already have an automatic right to reside in Ireland under the common travel area that covers the UK, Ireland, the Isle of Man and the Channel Islands. The British government’s attitude to the 3.3 million EU nationals living in the UK is said to be a key factor in how some member states will treat UK citizens.

Additionally, the EU long-term residents directive (directive 2003/109/EC) grants long-term resident status to third-country nationals who have resided legally and continuously within EU member states for five years. However, applicants must provide evidence of stable and regular resources, without recourse to social assistance schemes, and meet certain integration conditions, such as language requirements. This status is less likely to be available to UK residents who exercised free movement rights via lower-paid professions, who are less able to provide evidence of stable and regular resources. Long-term residence status might also have an impact on family life, as it provides far stricter family reunion rules than at present. Those UK citizens who wished to remain working in an EU state, but did not yet benefit from long-term resident status, could face quotas and discrimination against them as non-EU citizens. Following Brexit, the EU could impose visa requirements on UK citizens. Although the EU does not currently impose visa requirements on wealthy third-country nationals such as the USA, it expects reciprocity, so to benefit from visa waiver, the UK should exempt EU citizens from visa requirements. Under the EU’s returns directive (directive 2008/115/EC) those British citizens who had no right to stay in the EU could be expelled, by force if necessary, and could be detained pending removal.

Therefore, not only are UK nationals elsewhere in the EU, in some cases, in danger of losing residence rights in other EU states, but, even if they can continue to reside, on loss of EU citizenship they may well suffer loss of pension and other benefits which they currently enjoy in EU law. This will be in great contrast to the present situation, whereby generations of UK citizens have never known the restrictions that visa requirements place on travel, either from a business or personal perspective. If UK citizens are no longer able to exercise these legal rights, it will not only establish physical barriers, but it will inhibit engagement with the countries and peoples of the EU.[22]

UK Nationals Who Have Not Exercised Free Movement Rights

It is not necessary to migrate to another member state to benefit from EU citizenship. All UK nationals are EU citizens by virtue of being a citizen of a member state of the EU (ie the UK). This will be lost when the UK leaves the EU. Indeed, in the absence of further negotiated rights, UK nationals could be in a worse situation than some other third-country nationals for whom there exist non-discrimination clauses in EU agreements (eg Russia, Morocco).

What does it mean to deprive UK nationals of EU citizenship? It is a very valuable benefit. The European Movement UK has argued that Brexit risks being the first time that the whole population of a modern state loses citizenship without that nation being involved in armed conflict or ceasing to exist. Human rights protections and prohibitions exist if a person is deprived of national citizenship – indeed in some situations international law prohibits the deprivation of national citizenship. Article 15 of the Universal Declaration of Human Rights states that everyone has the right to a nationality and no one shall be arbitrarily deprived of his or her nationality. But is deprivation of EU citizenship to be likened to loss of national citizenship or to government expropriation of a valuable property? If the latter, might the government be financially liable for this loss? Certainly, UK nationals risk losing the following rights as a result of losing EU citizenship:

  1. Rights of free movement, residence and the right to work and study in other EU states.
  2. Rights to vote/stand for the European Parliament will be lost, as well as the right to vote/stand in European Parliament and local elections while resident in other EU states.
  3. Rights to do business with other EU states without barriers, even if not personally leaving the UK (eg selling insurance/financial services over the phone or online to another EU state from the UK).
  4. Many other rights which accrue from EU membership, such as workers’ rights (ie equal pay for work of equal value for men and women, working time measures and so on). Although the UK government has stated that it will initially ensure the status of these in UK law through the EU Withdrawal Act 2018, it has also said that it will decide whether to repeal or amend them. Due to parliamentary sovereignty, it could repeal whichever it chose. There would be no guarantee (of the sort that currently exists through EU membership) that they will be maintained.

Associate Citizenship?

In December 2016, European Parliament Brexit coordinator, Guy Verhofstadt, proposed a form of EU ‘associate citizenship’ that would allow individuals to ‘keep free movement to live and work across the EU, as well as a vote in European Parliament elections’.[24] This idea was supported by Luxembourg MEP Charles Goerens, who proposed associate citizenship on payment of a membership fee – in return for some rights currently guaranteed by Articles 21-22 of the Treaty on the Functioning of the EU. As Goerens recognised, this would need EU treaty amendment before it could become reality.

But it is not very clear what associate European citizenship would actually entail, and the extent to which it would differ from EU citizenship itself, or even be open to third-country nationals with long-term residence status. What might be the position of Scotland? Nicola Sturgeon stated that she ‘would not rule out associate citizenship of the EU for Scotland’ (McDonald 2016). However, in the event, only the ECJ could provide a clear and authoritative answer on this matter. Several attempts have been made to bring the matter before the Luxembourg court – for example in litigation commenced in the Netherlands, but the Dutch courts have failed to make any reference to Luxembourg and so the matter has not been settled, nor featured in the withdrawal negotiations conducted between the EU and UK government.

Conclusion

Brexit is built around a paradox concerning citizenship and identity. In voting to leave the EU, many voters were rejecting not only the EU, but also the concept of an EU citizenship and identity. Yet the UK, as a union and devolved state, itself lacks a clear and fixed identity – it is as much a demoi-cracy as the EU.

For some time, many Scots have been relatively comfortable with multiple identities (McCrone 2002), and able to understand themselves as simultaneously Scottish (and/or eg Glaswegian or Aberdonian), British (and/or Protestant, Catholic, Jewish, Muslim, Buddhist, Atheist, etc), and European – thus acknowledging an inclusive and outward-looking identity. Of course, many in England similarly embraced multiple identities. Yet, also clearly visible has been the rise of a distinctly English nationalism less open to multiple identities and multiculturalism, and specifically exclusive of a European identity. As Anthony Barnett writes: ‘It was England’s Brexit’ (2017).

Because of this, the EU referendum has presented a threat to harmonious social relations, requiring those who found no conflict in conceiving of themselves as simultaneously Scottish/British and European to opt between British and European, thus implying multiple identity is not possible.

But what then does it mean to be British? Indeed, this question provokes some irony in that the majority English choice to leave the EU, and assert a supposedly independent global presence, has raised the crucial question of what Britishness might mean in the 21st century. In point of fact, Britishness has for some time been in decline. As a source of identity, it appeared to diminish in Scotland from the 1980s (Bechhofer and McCrone 2010), while devolution dislocated the traditional association of Britishness with the unitary state. A growth in identifying as European of course also played its part.

British identity is of course a subject for another article, but it should be noted that Brexit does not settle the identity question, but instead shifts the focus from one contested form of citizenship and identity (EU) to another (British). Seen in this light, Brexit has imposed a restriction on Scotland – confining it within the UK union and a British identity, rather than within the EU and European identity – when many Scots were comfortable with both. And by so doing, in its rejection of an EU identity, Brexit presents a clear challenge for Scotland – how may it achieve the immigration it needs, if it is to have no say in immigration policy?

Perhaps, most significantly, Brexit has revealed the frailty and tenuity of EU citizenship. For all the talk of demoi-cracy, and of peoples, it has proved very easy for a state (the UK) to remove this citizenship from a group of peoples, even against their will, when they voted against Brexit, as did the majority of Scottish voters. The ECJ’s reference in Grzelczyk to EU citizenship as a ‘fundamental status’ has turned out to be sadly premature.

References

Barnett A (2017) The Lure of Greatness: England’s Brexit and America’s Trump (Unbound Books)

Bechhofer, F and McCrone, D (2010) ‘Choosing national identity.’ Sociological Research Online, 15(3), 1–13

Dennison and Zerka (2019), The 2019 European election: how anti-europeans plan to wreck Europe and what can be done to stop it, European Council On Foreign Relations, February 2019

McCrone, D (2002) ‘Who do you say you are? Making sense of national identities in modern Britain’. Ethnicities, 2(3), 301–320

McDonald, H (2016) ‘Nicola Sturgeon will not rule out “associate citizenship” of EU for Scotland’, The Guardian, 28 November 2016, https://www.theguardian.com/politics/2016/nov/28/nicola-sturgeon-will-not-rule-out-associate-citizenship-of-eu-for-scotland

Nicolaidis K (2012) ‘The idea of European Demoicracy’ in Dickson and Eleftheriaids, Philosophical Foundations of European Union Law (OUP, 2012)

[1] Case C-184/99 Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve [2001] ECR-458
[2] See for example German Constitutional Court, Maastricht judgement of 12 Oct 1993
[3] Immigration Act 1988 s.2.7, subject to s.2(2) ECA 1972 and Immigration (EEA) Regs 2006 reg 15 4 Scotland’s Place in Europe, available at: http://www.gov.scot/Resource/0051/00512073.pdf
[5] Further details of the UK Government’s ‘Settled Status’ scheme are available at https://www.gov.uk/settled-status-eu-citizens-families
[6] See Office For National Statistics, Migration Statistics Quarterly Report: February 2019
[7] Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union, 14 November 2018 TF50 (2018).
[8] This scheme will be now be free of charge for all applications following a policy change by the UK government in January 2019.
[9] In ECJ case C‑34/09 Ruiz Zambrano Belgium was required to grant a work permit to the 3rd country national carer of an EU Citizen who had yet to exercise his right of free movement throughout the EU, so as not to deprive the EU Citizen of the genuine enjoyment of the substance of his rights (the family might otherwise have had to leave the EU altogether).
[10] The United Kingdom’s exit from, and new partnership with, the European Union, CM 9417, Foreword.
[11] See further, Protecting the rights of EU Citizens: Scottish Government Response to UK Government Citizens’ Rights Paper, 27 July 2017.
[12] See further, Scottish Parliament Culture, Tourism, Europe and External Relations Committee: EU Migration and EU Citizens’ Rights 3rd Report, 2017.
[13] HM Government: The UK’s future skills-based immigration system, December 2018, Cm 9722.
[14] See further: UK immigration policy after leaving the EU: impacts on Scotland’s economy, population and society, report by independent Expert Advisory Group on Migration and Population, for Scottish Government, 28 February 2019.
[15] See further: Options for Differentiating the UK’s Immigration System, report Scottish Parliament Culture, Tourism, Europe and External Affairs Committee, 2017; also Dr Eve Hepburn, Immigration policy – the countdown to Brexit (SPICe Briefing, 24 January 2019).
[16] Eg Robert Goodwill, UK Minister of State for Immigration, to the Scottish Affairs Committee, ruled out devolving immigration policy: ‘Applying different immigration rules to different parts of the UK would complicate the immigration system, harming its integrity, and cause difficulties for employers with a presence in more than one part of the UK.’
[17] Further details of the Stay in Scotland campaign are available at https://www.gov.scot/news/stay-in-scotland/.
[18] For some perceptions from EU nationals in the UK see ‘The ‘Hostile Environment’ (and why the3million opposes settled status)’ https://www.the3million.org.uk/hostile-environment
[19] See ‘Brits abroad: how many people from the UK live in other EU countries?’ available on the Full Fact website at https://fullfact.org/europe/how-many-uk-citizens-live-other-eu-countries/
[20] Reconfirmed by Michel Barnier in a letter to Brexit Secretary Stephen Barclay on 25 March 2019, viewable at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/790471/Ares_2019_2069376_-_MB_-_Barclay.pdf. The only exception is for the coordination of social security measures for a limited time.
[21] See further on this: https://www.theguardian.com/politics/2019/apr/04/leaked-file-shows-stark-contrasts-for-britons-in-eu-after-no-deal-brexit
[22] See further, Scottish Parliament Culture, Tourism, Europe and External Relations Committee: EU Migration and EU Citizens’ Rights 3rd Report, 2017. [24] See further eg, ‘European Parliament’s chief Brexit negotiator demands Theresa May back Britons who want to keep EU citizenship’, The Independent, 8 April 2017.

Anthony Salamone | Scottish Centre on European Relations

Introduction

The EU is comprised of a fabric of states and peoples with diverse perspective and interests. (See PDF)

Pontus Odmalm | University of Edinburgh

Introduction

The 2019 European Parliament elections are likely to be a stress-test for EU institutions and party alliances, as well as for domestic-level politics. Two issues stand out in particular: first, the potential for populist radical right parties (PRR) to exploit the second-order status of these elections and, second, the indecisiveness of mainstream parties to come up with unified (and possibly consistent) counter-narratives. The PRR traditionally played minor roles during national elections, prioritising instead local and supranational contests. Around the early 2000s, however, this type of party stopped being a mere irritant and now constitutes a serious challenge to conventional party families. Scotland has (so far) been exempt from any significant PRR ‘threat’ to the status quo. But a lack of supply does not necessarily mean there is no demand for these parties or the solutions they offer.

This chapter initially discusses the changing nature of the PRR, and how the 2019 elections fit with their long-term objectives. It then outlines particular obstacles the political mainstream faces when it engages with parties who do not play by conventional rules. Finally, the chapter reflects on the Scottish ‘exception’ and whether it can be sustained in the long term.

The populist radical right (PRR) has become a fixture across the EU. Often referred to as a distinct ‘family’, the PRR umbrella nevertheless includes parties with a wide range of different backgrounds and ideologies. The anti-immigration stance is a common denominator, but also obscures the variety of challengers that exist. The United Kingdom Independence Party (UKIP), for example, is associated with a hard form of euroscepticism coupled with chauvinistic attitudes to migrant integration. Yet it started out as a populist actor aiming to rid the British economy of excessive state and supra-state interference. The Dutch Party for Freedom (Partij voor de Vrijheid, PVV), on the other hand, journeyed from a conservative-liberal position to one characterised by nationalism and populism. On the other side of the spectrum, the Sweden Democrats (Sverigedemokraterna, SD) has been distancing itself from a far-right and white nationalist past (some might even say rewriting its party history).

Their electoral feats echo these makeovers, but also point to variation depending on the level contested. UKIP peaked in the 2015 UK general election (with almost 13% of the vote), having achieved single-figure results previously, only to then implode following the 2017 election. PVV’s performance, conversely, is remarkably volatile and results vary from one election to the next. The most consistent of the three is perhaps the Sweden Democrats, which trebled its support since first entering parliament in 2006 (from 5.7% to 17.5%). This shift in voters’ preferences has taken place within the broader context of dwindling support for mainstream parties and a gradual move towards contesting so-called value issues. These developments put the political mainstream in a precarious situation, since it has to compete on a variety of fronts and on a variety of new issues (see various contributions in Odmalm and Hepburn 2017). That said, if only national-level performances are taken into account, then it potentially underestimates the PRR’s greater appeal. It might also overlook long-term objectives to mainstream party images and key electoral messages. This year’s European Parliament elections might therefore be an important path-divider for how we conceptualise and understand the PRR party family. Scotland is many ways an outlier in comparative perspective. It largely lacks a populist – as well as radical right – challenger, and its population is remarkably sedate in terms of the immigration ‘issue’. But whether this continues to be the case is a different question (Ford and Goodwin 2014).

This chapter discusses the evolving nature of the PRR, and how its metamorphosis presents challenges to the centre-right as well as to the centre-left. In particular, it considers how to reach internal consensus regarding the type of issue immigration constitutes, and which position to adopt in light of a seemingly unstoppable political force. It concludes by suggesting that it might be time to bring back ideology to the political conversation. That is, the electorate benefits from knowing why parties want what they want and not just what they want.

Evolving Nature of the Populist Radical Right

A majority of western European party systems were characterised by their ‘frozen’ nature up until the late-1970s. Conflict took place on a material left-right axis, where parties lined up according to their views on state involvement in the economy. Consequently, it meant fairly stable and predictable positions which ran along a socialist-capitalist divide. The available space for so-called non-material issues was minimal. Equally small was the space for anti-immigration challengers to exploit. The latter is partly explained by the pan-European decision to halt labour migration, which followed the 1973 oil crisis. Patterns would later shift – towards family-reunification and asylum-type migration – but one should not forget the different context at the time. Flows, for example, were relatively low (ca 650000 asylum applications across the EU in 1970-1974, compared to 650000 in 2017 alone), and globalisation had not quite kicked off. Taken together, then, questions of immigration control and integration management were not salient enough for either parties or voters (see various contributions in Weinar et al 2019).

However, the political environment had become more favourable to the PRR by the early 2000s. Several developments are important to note. Following 9/11, immigration went from a labour market and humanitarian concern to one increasingly characterised by securitisation. Levels of undocumented migration were on the rise, and numerous EU states were turning away from multicultural solutions to migrant integration. Furthermore, public opinion was heading in a restrictive and assimilationist direction. As such, there were ample opportunities for PRR parties to grow. But while all these developments were under way, the electoral successes of the PRR were often varied and limited to single digits. This mismatch is often credited to the cordon sanitaire mainstream parties set up to distance themselves from radical competitors. Several PRR parties also pushed reactionary positions on gender equality and national identity, which ran counter to mainstream narratives. In other words, the PRR struggled to break free from its pariah and niche status (see various contributions in Mudde 2017).

What can be observed over the past fifteen to twenty years is consequently a process of mainstreaming – on the one hand, of restrictive and assimilationist positions, and on the other, by the PRR itself. The latter’s key aim of reducing numbers is taking root across the EU, particularly among Conservative and Christian Democratic parties. In the Netherlands, both the People’s Party for Freedom and Democracy (VVD) and the Christian Democratic Appeal (CDA) emphasise a need for social cohesion and the dangers posed to Dutch society by taking on too many migrants and refugees who do not share fundamental values. A similar, albeit delayed, development took place in the 2017 Swedish election. The centre-right (except for the Centre Party) adopted a hard-line approach to asylum and family reunification migration. Given the asylum peak, which preceded the election, it was perhaps expected but they also tightened up their rhetoric on integration. A greater responsibility to secure work, accept Swedish values and become part of the community was placed on migrants. But the centre-left, especially the Social Democrats, changed its rhetoric as well, particularly regarding the impact of migrant labour. By providing a cheap (and sometimes illicit) work force, migrants were said to undercut collectively-bargained wage levels and working conditions. At the same time, several PRR parties realised they had to tone down references to biological racism and cover up active (or dormant) links to the far-right in order to broaden their appeal.

UKIP, PVV and SD are indicative examples of this transformation. Immigration is still understood as a ‘threat’, but in relation to welfare states, labour markets, and progressive western values rather than to supposed ‘racial purity’. Protecting what is ‘ours’ from the undeserving ‘other’ is therefore increasingly important. This narrative poses two distinct challenges. First, the categories perceived as undeserving change over time as well as between contexts. But it is perhaps safe to say ‘Muslims’ and ‘asylum seekers’ constitute particular buzzwords for most of the contemporary PRR. These groups can experience challenges with integration (economic as well as social) and are often subject to discrimination (explicit or implicit), which means their entry to the labour market can be delayed or obstructed. And when these chauvinist frames are combined with narratives of constituting a threat to liberal lifestyles, they consequently act as potent rallying calls for a cause which only the PRR is willing and able to defend. That said, there is perhaps a gap between the mainstreaming process at the party level and that of the rank-and-file. The latter typically lags behind any elite shifts and is often characterised by overtly racialised views.

Second, these discursive shifts also mean that contestation has moved closer and closer to the natural habitat of the political mainstream. Questions concerning immigration and integration are no longer understood as distinct policy areas, which can be kept separate from other domains. This is arguably a key feat of the PRR, as it forces mainstream parties to engage with issues outside their comfort zones and where there are ample opportunities to get it electorally wrong.

Political Mainstream and Immigration

Once immigration and integration become politicised, parties must respond in one way or the other. While the PRR provides a consistent narrative on the negative impacts of ‘mass immigration’, mainstream parties tend to limp from one strategy to the next. One expects the political mainstream to, perhaps, offer a counter-narrative to the narrative of impending societal collapse or draining of resources. However, mainstream parties either try to outdo the PRR (the UK and the Netherlands) or downplay immigration as an electoral issue (Sweden).

An important part of the explanation lies in the cross-cutting nature of immigration, and the challenges involved when trying to pin it down to any one policy area. As competition becomes increasingly multi-dimensional, it consequently presents mainstream parties with a novel set of challenges, which are crystallised once immigration and integration are factored in. For the centre-right, they bring long-standing tensions regarding the role of the state to the fore. In particular, whether (or not) immigration control and asylum processing are better handled by state or non-state actors. The United Kingdom, in particular, has struggled to get the balance right. Border control and residence checks have been partially outsourced over the last ten years. However, following a series of mishaps – in particular the failed Operations Vaken, Mayapple and Nexus – the management of borders was brought back to the state and into the realm of the Home Office.

At the same time, integration has moved away from being a concern related to labour markets to one associated with social cohesion and subscribing to host society values – which requires an active and involved state. The centre-left struggles with dilemmas of its own, particularly regarding labour migration, which is typically understood as a capitalist tool to suppress wages and split the indigenous working class. The state, in this approach, should therefore adopt a more engaged role in order to not create chaos in the labour market. Although asylum and family reunification tend to play well with centre-left ambitions of internationalism and humanitarianism, the 2015-2016 spike in numbers significantly tested its commitment to these ideals (Odmalm and Bale 2015). Subsequent general elections (in 2017: Britain and the Netherlands; and in 2018: Sweden) highlighted a new normal in terms of the positions mainstream parties adopt.

Several centre-left and centre-right parties have moved in a restrictive and more demanding direction since then, and often echo the PRR’s rhetoric when justifying these shifts. The PRR is conversely better placed to engage with questions of immigration and integration as it already holds authoritarian and state-centric positions, and is largely unaffected by any conflicting views regarding the appropriate role of the state. However, it is important to note the different contexts in eastern and central Europe. The PRR in, for example, Poland and Hungary, is not only more authoritarian but also more draconian compared to many of its western European counterparts. Recent stances by Viktor Orbán and Fidesz (on academic freedom and electoral competition) and by Law and Justice (on women’s and LGBT rights) suggest the threat comes from three different directions – from the migrant ‘other’, as well as the internal (minorities) and supranational ones (the EU). These stances go against the founding principles of the EU, which has meant increased tension within the European Parliament’s centre-right party family, the European People’s Party (EPP), and within the European Parliament itself (Pytlas 2016).

These shifts and comparative differences further underscore the blurred edges between ‘mainstream’ and ‘PRR’ parties. They also signal important changes in the way parties compete with each other and for the type of issues they consider to be salient. On the one hand, the drift rightwards means the available choice is often between ‘restrictive’ and ‘more restrictive’ positions, with few alternatives in-between. On the other, traditional questions concerning the redistribution of resources have become superseded by issues of national identity, societal values and security, all of which are challenging to articulate concrete policy solutions to.

These developments put mainstream parties in a particularly difficult position. They must engage with questions of high importance to the electorate, but in a way that does not (further) legitimate the PRR’s narrative. They must also grapple with issues that strike to the very core of who they are as a party. Taken together, it points to a new political environment in which old proposals and solutions no longer suffice. In particular, focusing on ‘deliverables’ and ‘competence’ might not resonate with voters who demand ‘vision’ and increasingly distrust the political mainstream.

PRR and the 2019 European Parliament Elections

This understanding becomes even more prevalent once the EU is framed as a faceless and unaccountable entity which is far removed from everyday chores. But the European Parliament elections are likely part of the longer game the PRR will play. It allows them to test the waters in terms of acceptability, framing and blame allocation. In other words, their aim could well be set on future general elections, and the European Parliament contest serves as a dry-run for those campaigns. Given their increased levels of grassroots activity, as well as having a significant presence on social media, one should expect amplified online mobilisation dominated by post-truth and diversion tactics. By taking advantage of the d’Hondt system of proportional representation, the PRR might also be able to consolidate its influence across the EU. Thereby, ample opportunities will arise to challenge and obstruct the workings of the European Parliament.

The stakes are therefore high and mainstream parties could benefit from considering the question of whether it is time to bring back ideology to the political game. Vision for the good society has taken a back seat in recent elections. The consequence is an ideological wilderness, where votes struggle to distinguish one party from the next. Yet most PRR parties cannot rely on a similar track record of accomplishment that the mainstream can. However, they compensate for this shortcoming by having clear ideas of the type of society they want – namely, one characterised by (ethnic) homogeneity, strong national sentiments and a welfare state for the deserving.

If the political mainstream is to engage with these issues, it has to perform a delicate balancing act between communicating what policies it has in mind, and why it thinks these are necessary in the first place. Both messages require an ideological steer in order to make sense to the electorate. Yet it also involves a process of careful reflection. Mainstream parties need to figure out what type of party they are and then agree on its direction. Second, given the mixed success of adopting a restrictive stance on immigration and an assimilationist approaches to integration, it is worth thinking about alternative strategies. One of these is having a clearer grasp of the policies and regulations in place, particularly regarding labour mobility and migrants’ access to welfare services. This is particularly important in an era characterised by disinformation and so-called ‘fake news’.

Conclusion

The 2019 European Parliament elections are likely to see more intense campaigning and a heightened sense of urgency, particularly by the PRR, which have identified it as an important venue for capturing the disaffected and disillusioned voter. But there is also reason to believe the political mainstream is increasing its European emphasis – including with the goal of limiting or blocking any electoral success of the PRR. The Brexit referendum and the subsequent political chaos in the UK led eurosceptic and PRR parties to tone down their rhetoric on potentially leaving the EU, and also appears linked to rising support for the EU in several member states. Yet Brexit and the profile and impact of the PRR do pose big challenges to the mainstream for how they conceive of, communicate and focus their own European goals and politics. This May’s elections are therefore an important path-divider in contemporary European politics and an opportunity for mainstream parties to reflect on who they are and the solutions they offer the electorate.

Although PRR parties are present in several member states, Scotland remains largely untouched by any challengers to the political status quo – Scotland has one UKIP MEP from the 2014 elections (now defected to the Brexit party), but whether either of the two Brexit parties will regain this seat is open to doubt. Furthermore, the PRR is not present in either the Scottish parliament or in any of the local councils. The fact that immigration policy is reserved to the UK level, that Scottish politics is characterised by a civic understanding of nationalism and it has a strong(er) attachment to Europe are often put forward to explain the Scottish exception. That said, both the EU and independence referendums (with 38% voting ‘leave’, and 45% voting ‘yes’ – and a third of those ‘yes’ voters supporting ‘leave’) suggest a few caveats to this narrative (What Scotland Thinks 2014). There might be some latent demand for a party with a stronger anti-EU, anti-immigration rhetoric or possibly for one with both anti-EU and anti-Union rhetoric. If such a populist, right-wing party emerged, it could pose challenges to existing ones, perhaps through pushing a harsher line on immigration and integration – especially if none of the established parties advocates a more hard-line approach, although effectively the current UK Conservative government does do that.

However, for a PRR-type party to succeed in ways similar to their results in some other EU countries, it would first need to overhaul current understandings of belonging to the ‘imagined’ Scottish community, which are based on residence rather than heritage. Such a party would also need to identify a corrupt regional elite which is then pitted against the ‘pure’ people. But in 2009, UKIP only polled 5% of the vote in Scotland in the European Parliament elections. While this increased to just over 10% in 2014, some blamed that on the SNP treating the last (sixth) MEP seat as a contest between the SNP and UKIP. Broadly, the Scottish public appear more at ease with managing multiple identities – of being Scottish and/or British and/or European. In contrast, in many ways Brexit has exposed difficult and divisive questions of English identity and English nationalism. By also taking Scotland away from the EU and forcing a choice in some sense between British and European identities, it has created a new debate and challenge to what Britishness means (as discussed in chapter 3 of this report).

Nonetheless (as argued in chapter 15 of this report), it is hard to imagine Scotland is automatically immune to such pressures, not least having seen developments in recent years in a number of Nordic EU member states, the Netherlands and Germany. But political leadership is one key part of the answer. On migration and integration, Scotland has overall had constructive leadership and so, for now, does not see the sort of populism prevalent in England and in several EU member states. The European Parliament elections will tell us much about where populist parties may or may not go next – in the EU and in the UK and Scotland.

References

Ford, R and Goodwin, M (2014) Revolt on the Right: Explaining Support for the Radical Right in Britain, London: Routledge

Mudde, C (2017) The Populist Radical Right: A Reader, London: Routledge

Odmalm, P and Bale, T (2015) ‘Immigration into the Mainstream: Conflicting Ideological Streams, Strategic Reasoning and Party Competition’, Acta Politica, 50(4): 365–378

Odmalm, P and Hepburn, E (eds) (2017) The European Mainstream and the Populist Radical Right, London: Routledge

Pytlas, B (2016) Radical Right Parties in Central and Eastern Europe, London: Routledge

Weinar, A, Bonjour, S and Zhyznomirska, L (2019) (eds) The Routledge Handbook of the Politics of Migration in Europe, London: Routledge

What Scotland Thinks (2014) ‘Do You Support or Oppose Stricter Controls on Immigration?’, 12 May 2014, http://whatscotlandthinks.org/questions/do-you-support-or-oppose-stricter-controls-on-immigration

Michael Keating | Centre on Constitutional Change

Scotland and Europe

The relationship between the Anglo-Scottish and the European unions was first broached in the early 1970s, on the UK’s accession to the European Communities. The minority report to the Kilbrandon Commission on the Constitution argued that EEC membership would leave little scope for legislative devolution within the United Kingdom (Crowther-Hunt and Peacock 1973). Jim Sillars’ Scottish Labour Party favoured as much self-government as would allow Scottish direct representation in the EEC’s decision-making bodies, which soon became ‘independence-in-Europe’.

When devolution finally came about at the end of the last century, the European dimension was incorporated, as the new institutions were obliged to act within European law. The European framework then allowed a more permissive domestic settlement than otherwise would have been possible. The UK internal market was secured through the EU single market and externalities and overspills between UK and Scottish policies in matters such as environment policy and agriculture reduced. Provision was also made for them to influence European policy, notably via the Joint Ministerial Committee (Europe).

Subsequently, there were two perspectives on Europe. The Labour-Liberal Democrat coalition invested in the Europe of the Regions movement, including the Committee of the Regions and the Regions with Legislative Powers. This movement peaked before the convention on the future of Europe, but achieved little in the Lisbon Treaty and has since atrophied. The other perspective is independence-in-Europe, pursued by the SNP after its conversion to Europe in the mid-1980s, and the Greens. This was the proposal presented in the independence referendum of 2014, sparking a debate over whether and under what conditions an independent Scotland could be a full member state. Unionists insisted that membership would be, at best, very difficult. The Yes side warned that, without independence, Scotland could be taken out of Europe against its will. In the event, it was the latter that occurred (unless Brexit is halted at this late stage).

Scottish Opinion and Europe

For the SNP and the Greens, independence within the EU was a logical choice. EU membership would retain the single market with the rest of the UK as well as the EU, and keep open the border with England and Northern Ireland. There would be regulatory harmonisation. Yet the SNP never really spelled out what kind of Europe they favoured. They tended towards an intergovernmental EU, with strong safeguards for national sovereignty, rather than the more federal or supranational vision. At one point, the euro seemed the answer to the vexed currency question, but this was dropped with the onset of the euro crisis. The plans that were finally set out in the independence white paper envisaged joining the EU on exactly the same terms as the UK, including the opt-outs on the euro, the Schengen free travel area and justice and home affairs. Scotland would also continue to use the pound sterling. All this would have left Scotland in the shadow of the UK, rather than staking out its own position in Europe.

Another difficulty for the independence movement is that, while the connection between independence and Europe was logical, it largely escaped the voters. Analysis of the Scottish Social Attitudes Survey I carried out in the mid-2000s showed no connection between support for independence and for Europe. What it did show was a strong relationship between support for more devolution and moderately pro-European sentiment, suggesting that voters were attracted by post-sovereigntist ideas of divided authority and multilevel government (Keating 2009). The British Election Study similarly found no correlation between voting for independence in 2014 and voting remain in 2016 (Prosser and Fieldhouse 2017).

There was, of course, a strong overall majority in Scotland for ‘remain’ and remain majorities among both Yes and No voters from 2014, while England and Wales voted ‘leave’. This has allowed the SNP to claim a mandate for another independence referendum, given that they had said in advance of the 2016 Scottish election that they would regard such an outcome as a material change in circumstances legitimating putting the question again.

Independence Again?

There were three main obstacles to this. First, the UK government and parliament would have to agree to a referendum, as it had done for 2014; the government flatly refused. Second, if Scotland were independent within the EU and the rest of the UK outside the EU, there would be a hard border, negating the central logic of the independence-in-Europe strategy. Third, the Brexit referendum result had not given a boost to the independence cause. Support remained around 45%, the same as in 2014. Indeed, almost a third of SNP voters had chosen leave. The snap UK general election of 2017 dealt a fatal blow to the idea of an independence referendum before Brexit, as the SNP lost a substantial number of voters (mostly pro-Brexit) to the Conservatives. Although the Scottish parliament voted in favour of a referendum, this was not immediately followed up.

Yet, while support for independence had stalled around 45%, there were changes beneath the surface. As the SNP lost its pro-Brexit voters to the Conservatives, it became a more unambiguously pro-European party. The Scottish Conservatives, whose leaders had been largely pro-remain, now had to deal with a largely pro-leave constituency. Labour in Scotland, whose voters had divided in 2016 in much the same way as the SNP, had to accommodate a remain majority and a substantial leave minority, just as they had to in England and Wales. There is also evidence that, for the first time, support for independence and for Europe are beginning to align, although they are still far from coinciding (Montagu 2019). As Labour’s pro-independence voters have largely migrated to the SNP, the various movements have cancelled each other out and there is as yet no majority for independence-in-Europe. Eurosceptics in the SNP are less vocal than in the aftermath of the 2016 referendum and the options have clarified.

It is significant that leading leave voices within the SNP, such as Jim Sillars and Alex Neil, favour the European Economic Area (EEA), which would be regarded as europhile in England. The EEA also offers the advantage that Scotland would be outwith the common agricultural policy and the common fisheries policy, a symbolically (if not substantively) important issue in Scotland. The EEA might be a permanent option or a short-term one, pending a decision to rejoin the EU. The idea of EEA membership for the UK has been heavily criticised, mainly because it requires acceptance of single market policies without a say in making them. It would be difficult also for the EEA, as it would unbalance the area and introduce the toxic politics of Brexit into a zone in which the issue has mostly been successfully depoliticised. Norwegians have just learnt to live with ‘fax democracy’. EEA is essentially an option for small states which will never be big players, but seek to use soft power and influence. Scotland, with a less rancorous debate over Europe, a smaller size and a social model closer to the EFTA states, would be less disruptive of EFTA and the EEA than would the United Kingdom. EEA membership would also allow Scotland to negotiate a trade agreement with the United Kingdom, assuming that the UK had not remained in the customs union, in which case Scotland could be in that as well.

Whatever the relationship with the EU, Scotland would need to be clear on its own vision of Europe. Recently, the SNP leadership has been talking more about shared sovereignty, perhaps overcoming its previous reservations about federal ideas. It has also sided with those pressing for a more ‘social Europe’, countering austerity and neo-liberalism. As Europe moves either to closer integration or to a more explicitly two-speed or multi-speed model, Scotland would have to decide where it fits. The SNP’s policy on the currency has not, in spite of recent attempts, been clarified; sharing a currency with the UK would surely preclude closer integration in EU banking and monetary initiatives.

Differentiated Brexit

Independence is not the only proposal the Scottish government has made in response to Brexit. They also suggested a differentiated arrangement, which would have left Scotland in the single market on EEA terms, although in a customs union with the UK. This was immediately turned down by the UK, and there was a conspicuous lack of support from the European Commission and other member states. The UK government talked of a ‘red, white and blue Brexit’ and insisted that the whole United Kingdom must leave together. The Scottish government’s proposals were feasible but complex, and would have required the devolution of all powers relevant to the single market. In that case, one might argue that it would be better to go for independence, whether in the EU or EEA.

It is true that the UK government and the EU agreed on a special arrangement for Northern Ireland, which contained many of the features to which they had objected in the case of Scotland. While the UK insisted that this was a mere temporary backstop, they would need to be incorporated into the final UK-EU trade agreement in some form if the objective of keeping the border open were to be met. The politics, however, were different. The Irish government, as a member state, was able to insist on a differentiated arrangement for Northern Ireland as part of the withdrawal agreement, while Scotland had no such sponsor. The EU was also alive to the sensitive nature of anything to do with Northern Ireland and to the precariousness of the political settlement there. The fact, in any case, is that differentiated arrangements for Scotland were not part of the negotiation.

External Association

In the absence of a formal arrangement with the EU, it might be possible for Scotland to align voluntarily with EU regulations in matters of devolved competence, even where this means divergence from the UK. The initial UK response to Brexit appeared to make this very difficult. It argued that those competences that are both devolved and Europeanised were not really devolved at all. Scotland, Wales and Northern Ireland were just implementing EU policies. After Brexit, these would become UK policies, which the devolved institutions would continue to administer. Later, the formulation was changed to say that EU ‘frameworks’ would be replaced by UK frameworks. Consequently, the first version of the EU Withdrawal Bill proposed to take all existing EU law back to Westminster, with powers then being ‘released’ to the devolved bodies as appropriate. This betrayed a serious misunderstanding of how these competences worked within the existing settlement. They were not part of administrative devolution, which has its own provisions within the devolution acts. The devolved UK bodies, rather, had the same scope for policy-making within the European frameworks as do member states, and there have been substantial differences in the application, for example, of the common agricultural policy. In the event, the UK government retreated a long way and the final EU Withdrawal Act reverses the assumption that the powers will revert to Westminster and provides only for a time-limited reservation, pending the agreement of legislative or non-legislative frameworks.

At present, we know very little how all this will work, but it potentially allows Scotland to look to Brussels rather than London for guidance on policies. One vision of Brexit is a hyper-globalised one, abolishing tariffs and slashing regulations. Although UK ministers have now, for the most part, backed away from this, it remains an option should a long-term trade agreement not be reached. In that case, Scotland might opt to retain more demanding agricultural, environmental and, where they fall within its competences, social regulations. While this might entail a competitive disadvantage in UK markets, it would ease access to European ones. The Scottish Continuity Bill contains provisions giving Scottish ministers powers to bring Scottish regulations into alignment with European ones, whenever the latter change. This element of the bill survived the challenge in the UK supreme court. There is also provision to retain the EU Charter of Fundamental Rights in relation to devolved matters, even though it is the element of retained EU law that is not retained in the UK’s Withdrawal Act.

One matter in which successive Scottish governments have shown a particular interest is migration and freedom of movement. There is a broad cross-party consensus in the Scottish parliament that the nation faces a severe demographic challenge and needs to rebuild its population. There are also sectoral challenges, notably in the agriculture, fisheries and hospitality industries, in the health service and in higher education. So far, the UK government has refused to countenance territorially-differentiated policies in immigration or freedom of movement of workers. Yet such arrangements do exist in some federal states. It would be difficult for Scotland alone to remain within the EU/EEA regime of free movement of labour, as that is a matter for independent states and the EU, and involves reciprocal rights. It would, however, be possible for the UK to allow Scotland a margin of manoeuvre in setting rules for non-UK, including European, citizens wishing to work there. Student mobility is another area where Scotland might have its own arrangements, depending on what the EU continues to provide.

More broadly, EU membership has encouraged the development of networks across economic actors, local government and civil society. Some of these have been encouraged by European project funding, which will end. It will therefore take some conscious effort to ensure that the networks do not atrophy.

Scotland in Europe and the World

Post-Brexit, many activities currently managed within European institutions and frameworks will become part of external policy or para-diplomacy. Scotland’s efforts in this field have waxed and waned, as is also the case with other sub-state governments. Para-diplomacy has multiple objectives, including promotion of trade and investment, culture, education, policy learning and the promotion of desirable causes like environmentalism and human rights. Para-diplomacy, the external projection of internal competences, is sometimes distinguished from proto-diplomacy, which is about preparing the way for independence. Clearly, the latter is likely to cause conflict with the central state, and there were tensions between the two governments during the 2014 referendum.

Para-diplomacy can also cause friction, as has happened at various times since the 1980s over Scotland’s distinct efforts in inward investment. For the most part, however, since devolution relations have been relatively harmonious, even with governments of different political complexions at the two levels. Scottish representatives have been incorporated into UK embassies and the permanent representation to the EU without undue difficulties; such arrangements would be unthinkable in Spain or between Canada and Quebec. Partly in response to Brexit, the Scottish government is expanding and strengthening its external presence. Connections in Brussels will be important if Scotland aspires to match European policies and regulations and be aware of what is coming up. So will contacts in member state capitals. Yet the line between para-diplomacy and proto-diplomacy is not always a clear one and, in so far as Scotland and the UK are pursuing different policy objectives, there is always room for conflict. If they are following radically different trajectories in relation to Europe, this may be exacerbated. The old consensual model may be more difficult to sustain.

Before Brexit, there were mechanisms for a Scottish input into EU policy-making, through the Joint Ministerial Committee (Europe) and official networks. While these were widely criticised as lacking in power, they did provide a regular forum for consultation. There was also a Scottish government presence in Brussels, allowing for advance information on upcoming initiatives and for networking. After Brexit, the European mode of policy-making will give way to foreign policy and traditional diplomacy, in which the devolved governments have no role whatever. This has raised the question of how Scotland, Wales and Northern Ireland can feed into international negotiations, primarily over trade but also about the environment, human rights and linked fields.

There is also the question of how the devolved governments will feed into the overarching institutions that are intended to supervise the future relationship. Otherwise, Brexit could lead to a recentralisation as the UK uses its monopoly over foreign policy to intrude into devolved competences. The Welsh government has actively promoted a model of cooperative federalism, in which devolved governments will have a role across domestic and external policies. Frameworks to replace the European ones would be handled by a UK Council of Ministers, in which the UK government would not always have the last word. The Scottish government has been less enthusiastic, emphasising autonomy and safeguarding, rather than sharing, powers. Although Scotland and Wales have cooperated over many Brexit-related matters, this is an important difference in approach which could militate against a longer-term coalition. The facts that Wales voted leave and that the Northern Ireland institutions have not been operative since early 2017 also work against a coherent response to centralising forces.

Stands Scotland Where It Did?

Scottish devolution can be seen in two ways. It is a pragmatic compromise between the historic positions of independence and union. Alternatively, it is a coherent programme for the transformation of the UK into a form of asymmetrical federation. EU membership has played a vital role in managing this ambiguity and taking the edges off the nationalist-unionist conflict, especially given the elite consensus in favour of Europe. If the UK should move towards the hyper-globalist, neo-liberal mode of political economy or towards the transatlantic pole, this could exacerbate its internal territorial tensions as Scotland cleaves to the European social model. So far, intergovernmental discussions have focused on the mechanics of intergovernmental institutions after Brexit or the details of policy competences. This is largely because of a lack of consensus on the big issues and broad principles. Yet, if these larger questions are not resolved during the Brexit process, they could seriously undermine an already fragile British union.

References

Crowther-Hunt, Lord and Peacock, AT (1973) ‘Memorandum of Dissent’, Royal Commission on the Constitution, 1969-1973, Paper No Cmnd 5460

Keating, M (2009) The Independence of Scotland: Self-Government and the Shifting Politics of Union, Oxford: Oxford University Press

Montagu, I (2019) ‘Is Brexit a Springboard or a Balancing Act for Nicola Sturgeon?’, What Scotland Thinks, 22 Jan 2019, http://blog.whatscotlandthinks.org/2019/01/is-brexit-a-springboard-or-a-balancing-act-for-nicola-sturgeon

Prosser, C and Fieldhouse, E (2017) ‘A Tale of Two Referendums – The 2017 Election in Scotland’, British Election Study, 2 Aug 2017, http://www.britishelectionstudy.com/bes-findings/a-tale-of-two-referendums-the-2017-election-in-scotland

Kirsty Hughes | Scottish Centre on European Relations

Introduction

This overview chapter takes a broad look at the EU’s strategic challenges and current political dynamics as the EU enters a fresh institutional cycle with a new Parliament and new presidents of the Commission and Council. It also looks, in its conclusion, at how Scotland’s interests and contribution relate to those future challenges.

1. Europe’s Challenging Times

The European Union faces multiple challenges. These range from political, social, economic and democratic challenges within the EU and its member states to turbulence, disruption and change in the EU’s neighbourhood and globally.

Climate change pressures demand rapid and long-term responses from the EU and other key political actors at a time of major geopolitical shifts. The global multilateral system is under intense pressure in the face of new big power stand-offs between the US and China and a revanchist Russia – leading the EU to aim at its own goal of strategic autonomy (within a multilateral system). Technological developments promise new far-reaching and systemic innovations, while already creating governance and other challenges in the face of the rise of ‘big tech’. The development of artificial intelligence poses security, competitiveness and rights challenges. Cyber security is becoming an ever larger concern.

In the EU’s neighbourhood, conflicts, fragile states and authoritarian regimes raise multiple questions about the EU’s ability to influence and respond in a strategic way, based on its values and interests. Fragmentation and loss of solidarity in the EU over the last decade and more have undermined its ability to develop and maintain serious strategic foreign policies, neighbourhood policies and, to some extent, internal EU policies, let alone ones that fully respect human rights and the EU’s aspiration to be, and remain, a human rights leader.

Migration pressures, the euro crisis, inequality, unemployment (especially youth unemployment), rule of law challenges within the EU, Brexit, the increasing presence of far-right populist parties, the disengagement of the US (even under Obama, turned sharper and more unpredictable and damaging under Trump) – all these and more have created multiple political demands on EU member states and on the EU itself. It is no surprise, perhaps, that the EU has not risen well or enough to all of them.

Ahead of the European Parliament elections, where perhaps a third of its seats may go to populist parties, there are diagnoses a-plenty of the EU’s travails. European intellectuals call for action in the face of right-wing populism’s challenge to our basic, fundamental values (Lévy, Kundera et al 2019). Pessimists diagnose fragmentation that will ultimately lead to the collapse of the EU (Kagan 2019). Some assess more soberly how to move beyond the EU’s decade of polycrisis (European Policy Centre 2019, Dempsey 2019) and others, beyond the EU, address the wider global challenges to democracy and stability that are not unique to the EU at this critical moment (Jones and Torrey 2019).

In the face of loss of solidarity, lack of leadership and substantially varying views across member states about the EU’s future path, the risk is that the EU continues to muddle through – a response that may be more productive in some areas than others but, overall, not adequate to meet these multiple, complex, systemic challenges.

The ‘Long Decade’ 2005-2019

The EU has been through crises and challenges before. Looking back at earlier decades can sometimes suggest a rosier interpretation of the EU’s past than it warrants. The 1990s – after the fall of the Berlin Wall – certainly brought several major strategic developments, including the process of enlargement of the EU to central and eastern Europe, the single market, the creation of the euro, the Schengen border-free zone, justice and home affairs and more.

By 2004, the EU looked to be stepping up as a more powerful, more strategic actor. It had expanded to 25 member states, agreed to open accession talks with Turkey, introduced euro notes and coins, and agreed a constitutional treaty (preceded by the Maastricht and Amsterdam treaties in the 1990s and the Nice treaty in 2001). But the 1990s also saw the appalling wars and ethnic cleansing in the former Yugoslavia, and the first Iraq war. The noughties brought 9/11 and the 2003 Iraq war (amongst others). US politics and foreign policy were already changing and EU member states were divided.

Nor was internal EU politics always smooth. Germany and the UK were keener on enlargement than France. The Irish rejected the Nice treaty first time around. The constitutional convention and treaty were meant to overcome actual and perceived democratic deficits in the EU (recognised in the 2001 Laeken declaration in ringing political tones), but was rejected in French and Dutch referendums in 2005. And the UK gained its most significant opt-outs in the 1990s too – from Schengen and from the euro (followed later by its opt-ins to justice and home affairs) – ones that perhaps cemented its uneasy semi-outsider status. Yet the EU looked, then, like a confident and strategic actor in ways that currently it does not.

Some of today’s current challenges have their roots, in part, in these earlier years. The much larger EU, as it expanded towards 28 member states, had to find a new modus vivendi. The constitutional treaty, after its Franco-Dutch rejection, was reintroduced in technocratic fashion as the Lisbon treaty in 2009 – not a way to resolve the EU’s democratic deficits. Crucially, the eurozone was not well designed enough, and too large, to cope in the face of the global economic crisis after 2008. And terrorist attacks had a big impact and created insecurity, while leading to challenges to human rights in the EU and globally – as the balance between rights and security tipped the wrong way.

Enlargement and the neighbourhood: Where enlargement had once seemed like the EU’s most positive and influential neighbourhood policy, attitudes changed and politicians changed through this ‘long decade’. Merkel and Sarkozy did not take the strategic view of Turkey’s accession that Schröder and Chirac had done. Apart from Croatia’s accession, there was the opposite of urgency as far as the western Balkans path towards membership was concerned – and no such path for Ukraine. The euro crisis then started to dominate all, with damaging effects on the EU’s internal political relations and solidarity, and major negative economic effects across several economies, most but not all in southern Europe – and whose economic and political repercussions remain today.

The Arab Spring brought initial hope, and the EU recognised, for a while, that its approach to its neighbourhood had too often been driven more by its interests than its values. But turmoil and conflict followed, with several authoritarian rulers staying in or regaining power. The continuing Syrian conflict has had multiple impacts, most of all for its own people. But it also saw the US (and its EU allies) sidelined as Russia stepped in to prop up the Assad regime – and Turkey too heading in a more authoritarian direction, and pursuing its own interests in its interventions in Syria. The EU now looks more tentative and, once again, more interest-driven in its neighbourhood.

The Euro crisis: The euro crisis has dominated the EU agenda for much of the last decade. In aiming to protect the euro above all else, the EU, particularly under the leadership and decisions of Angela Merkel and Nicolas Sarkozy, imposed harsh solutions on the weaker members of the eurozone, most of all – though not only – Greece. In doing so, they also created political and democratic divisions in ways that were the opposite of creating solidarity or consensus, together with a damaging and long-lasting impact on the economies affected, not least through high levels of unemployment, particularly youth unemployment (Hughes 2011). Ironically, just as a major green new deal might have provided a route through then, so it may today (see below).

Certainly, the great financial crisis of 2007-2008 found the EU and eurozone ill-prepared for dealing with it and exposed serious design flaws, not least in the case of Greece (Anton Muscatelli, chapter 10 of this report). There have been substantial reforms since then, but these are not sufficient. One key reform that is still needed is to create a genuine, centralised fiscal function, but this remains divisive and unacceptable politically within the eurozone (Muscatelli, chapter 10). It represents a serious and deep divide, one that even the Franco-German relationship cannot currently resolve, and with continuing political and economic impacts.

Migration challenges: 2015 saw the migration crisis develop – termed by many, rightly enough, more a political and values crisis in the EU than an actual migration crisis (Hughes 2017, Pontus Odmalm, chapter 5, Andrew Sherriff, chapter 15, Cathy Ratcliff, chapter 16 of this report). It was a moment that rapidly showed up or created divisions within the EU as member states split over whether to welcome, discourage, block or move on refugees and asylum seekers. Those divisions remain central amidst today’s multiple EU challenges, even while migration flows have fallen. They also saw the EU focus on short-term responses, mostly, in the end, driven by home ministries and EU leaders, not by development, humanitarian or foreign affairs strategies (or else foreign policy strategies started to be diverted and warped towards securitisation of migration – putting EU security interests ahead of economic interests or human rights). The EU’s own demographic needs as its population ages have also barely figured in the divisive wrangling over how to handle, including whether and how to export, the EU’s migration challenge (Merritt 2019).

Democracy and rule of law: Concerns over weakening of democracy and rule of law within the EU have grown in the last decade. The EU has always been reluctant to intervene in or comment on the state of democracy in member states once they are inside the EU – a reluctance not matched in the economic sphere, especially in the euro crisis. But as Viktor Orbán’s illiberal democracy has taken root in Hungary since 2010, and as Poland too has moved to undermine its judiciary since 2015, the EU has, up to a point, intervened.

Orbán’s encouragement of anti-immigrant, anti-Muslim, anti-Semitic sentiment is well documented (Shattuck 2019). Yet in the early years of the euro crisis, the EU did little in the face of his moves to limit media freedom and undermine judicial freedoms, while notably protesting more about his efforts to undermine the independence of Hungary’s central bank. And only this year, in the run-up to the European Parliament elections, did the European People’s Party (EPP) finally suspend Orbán’s party, Fidesz, from its group. The European Parliament as a whole did, however, launch an Article 7.1 procedure in September 2018 (ie on there being a clear risk of a serious breach of the EU’s values by a member state) and called for a Council decision, but the Council has so far not moved on this (Marzocchi 2019, Maria Fletcher and Tobias Lock, chapter 2 of this report).

In the case of Poland, the Law and Justice (PiS) party came to power in 2015. Its moves to undermine the independence of Poland’s Supreme Court and so weaken the rule of law have rightly drawn major criticism. The European Commission opened a rule of law Article 7 case in December 2017 (preceded by a first phase approach in January 2016), on the basis there was a clear risk of a serious breach of the rule of law by the Polish government, followed by a hearing in June 2018. The Commission also launched a new infringement procedure in April 2019 over fresh Polish disciplinary proceedings for its judiciary.

But the EU member states have shown little willingness to move to the so-called nuclear option within Article 7 of suspending Poland’s voting rights (Fletcher and Lock, chapter 2). This leaves the EU in a situation where it is tougher on countries aspiring to joining the EU than it is on member states – and struggling to find ways to defend democracy within the EU from populist and illiberal politics in some of its member states. The EU also stood back from commenting on the imprisonment and trial of Catalan politicians – yet Amnesty International has called for the release from pre-trial detention of leading Catalan figures Jordi Sànchez and Jordi Cuixart (Amnesty International 2018).

Where the EU has provided more constructive challenge is to the behaviour of ‘big tech’ through initiatives such as the general data protection regulation, and other market dominance and behaviour challenges to the large big tech companies (Alistair Burnett, chapter 9, David Gow, chapter 17 of this report). This is a huge and still changing area with implications for democracy, media and culture across the EU (including viability of traditional media, reliability of media and media freedom). Simplistic solutions for combating fake news or outsider interference in elections can easily prove unhelpful, as seen recently with Facebook’s move to inhibit pan-European advertising by bodies not registered in each target country – a move that ran into immediate opposition in Brussels, just as European Parliament election campaigning was taking off. Yet there are pluses as well as minuses from the changing media landscape – Scotland’s vibrant social media during its independence referendum in 2014 one positive example (Burnett, chapter 9).

Brexit: As the EU emerged from the depths of the euro crisis, 2016 brought fresh challenges – the UK voted to leave the EU while, in the US, Trump was elected president, rapidly and unpredictably creating disputes with neighbours both north and south and further afield, moving into a simmering trade war with China (Gow, chapter 17, Daniel Kenealy, chapter 14 of this report).

The EU’s response to Brexit was remarkably unified, well-structured and transparent – with unity perhaps easier to keep in the face of a spiralling political crisis in the UK that, by 2019, started to look like a failing political system (Hughes 2019a). Nonetheless, Brexit has absorbed a large and unwelcome amount of political attention.

And losing, in fractious manner, one of the EU’s largest economies, supposedly (until 2016) a stable, mature democracy, a not insignificant foreign and security policy actor, a major contributor to EU development funding (Ratcliff, chapter 16) and, for proponents of free markets and free trade, an ally on that score, was not welcome for most in the midst of so many other substantive challenges. The departure (or not) of the UK has already impacted on alliances within the EU, not least the formation of the so-called Hanseatic league focused on defending the eurozone’s neo-liberal policies and emphasising liberal, free market economic policies (Anthony Salamone, chapter 4 of this report).

In the face of the UK’s political failings, in particular its government’s inability to agree a common approach to Brexit let alone find backing for it at Westminster, it is also hard to criticise the EU for not adopting a more strategic approach to how to create a new partnership with a large country on its borders. And, despite the several areas and policy positions where the UK’s absence will be felt, in other ways, the UK’s opt-outs have made it a more marginal player as the EU has struggled with the euro crisis and migration challenges – with the UK’s euro and Schengen opt-outs leaving it deliberately on the sidelines.

Indeed, the UK’s own ‘hostile environment’ approach to migration has impacted negatively on both EU citizens coming to work in the UK and non-EU migrants – damaging the UK’s international reputation even further in the process (from culture to soft power to economics and foreign policy (see Nick Barley, chapter 8 of this report)).

Nonetheless, it is not a small issue for the EU – as right-wing populists gain in support in several EU member states – to see a far-right eurosceptic, English nationalist ideology take hold in England (Sionaidh Douglas-Scott, chapter 3 of this report). And Scotland and Northern Ireland’s vote for ‘remain’ has intensified other constitutional pressures, with Nicola Sturgeon, Scotland’s First Minister arguing, in mid-April, another independence referendum was desirable in the next two years.

Public opinion in the UK has moved consistently towards ‘remain’ since the start of 2018, but there has been a lack of opposition to Brexit or leadership on a ‘people’s vote’ from the Labour party (it was never going to come from the Conservatives), leaving that to smaller parties including the Lib Dems, Scottish National Party (SNP), Greens and more recently the new Change UK party (as both Tories and Labour have started to fracture at the edges). Whether Brexit goes ahead will also have an impact both on debates about Scottish independence and its relationship to the EU (Michael Keating, chapter 6 this report) and about Irish reunification.

The current six-month extension of Article 50 may yet lead to the UK revoking it, but this is an open question and all is still to play for. While some in the EU27 are wary of a politically divided and unstable UK staying in (and some of these political fractures may take years to work through), others (not least Ireland – and President Tusk who has proved a welcome ‘remain’ voice) would welcome a UK change of heart, not least if it was part of a return to a more normal, mature democratic politics (Hughes 2019b). Even in the latter case, it is hard to see when or whether, in the next few crucial years, the UK may contribute in any serious or strategic way to debates over the EU’s future.

2. Where Next for Today’s EU?

Overall, in the 14 years from the rejection of the EU’s constitutional treaty in 2005 to European Parliament elections in 2019, where right-wing populists look set to hold a substantial number of seats, it has been a challenging ‘long decade’. The confident, strategic EU of 2004 has been replaced by a more fractured EU in 2019. Some argue that the EU has, in fact, come well through these crisis years – finding a way to be more powerful and assertive in the face of the euro and migration challenges. But the EU did not handle the euro crisis so well, and short-term ‘fortress Europe’ responses to migration challenges are not the route to a serious long-term migration and demographics strategy, nor is it a route to defeating populism.

Yet the EU is also still, or can be, a major player across key international and domestic issues. From climate change, to the unfolding new global power politics, from inequality and poverty in the EU and internationally to promoting human rights and multilateralism, the EU has a central role to play. But whether it can and will play this role, to what extent, and how successfully given the US’s retreat from Europe and its current unpredictability, is uncertain. This is the EU’s overarching challenge. Where the EU goes next will depend on how well it faces up to this challenge.

Differentiation, Fragmentation, Solidarity and Strategy

The EU has never been a fully united player across its member states and institutions. It has, however, been able to find strategic direction and impetus, at different times, from the leadership of different (alliances of) member states and institutions, and from different substantive issues and projects. But the current divides within the EU are cause for serious concern, and solutions will require considerable political imagination and creativity as well as leadership.

The Franco-German relationship has long been central to the EU’s direction – or lack thereof. But alliances across smaller and larger states and with the EU institutions have been vital too. The current Franco-German relationship is not in a strong state – though in Berlin it is seen as doing better than the view from Paris. The tentative or implicit deal, that Macron, after his 2017 election as president, would introduce structural labour market reforms and then Germany would respond on substantive eurozone reforms, has simply not been followed through in any substantive way.

Macron’s big picture, wide-ranging and quite centralising European vision (seen in his two big European speeches to date and in EU newspaper op-eds (see Macron 2019)) to some extent grates in Berlin. And, too, Macron has simply fallen foul of Germany’s changing politics with the rise of the Alternative für Deutschland (AfD) party and the twilight of Angela Merkel’s time as Chancellor with the new party chair, Annegret Kramp-Karrenbauer (2019), showing herself to be wary on engaging too readily with Macron’s European renaissance (in an article in early March for Welt am Sonntag).

In Paris, there is talk of differentiated integration, concentric circles and pragmatic coalitions on different issues as a way ahead in the unpromising circumstances of EU divisions. Certainly, these divisions can be exaggerated – the EU has long faced North-South stand-offs on some issues or divides between budget net contributors and recipients. But the East-West divide is of concern, even if it should not be caricatured (Lehne 2019) and the economic and political fallout of the euro crisis is still being felt in southern Europe, deepening the old North-South divide.

One other feature of some, at least, of the current divisions is that, whereas the EU has tended to find its way through many issues through compromise and consensus, some of the louder, more populist voices in the EU – now running from Poland via Hungary to Italy – aim to gain political leverage at home by standing firm against any compromise (while also potentially weakening the EU in the process, as an added benefit from a eurosceptic point of view (Odmalm, chapter 5 of this report)).

There are, too, real divisions on matters of substance. There is major disagreement on the eurozone’s next steps. A centralised fiscal function looks vital (Muscatelli, chapter 10) but neo-liberal northern states disagree. These are global debates too – since the global economic crisis, neo-liberalism has been rightly criticised, but no clear strategic route ahead has yet found consensus.

Leading on a green new deal: The EU is in a position to lead around sustainable development as the best strategic path ahead. To do this, it would need major new thinking on industrial strategy in the 21st century (Alison Hunter and Fabian Zuleeg, chapter 12 of this report). This has, of course, been proposed in a joint Franco-German statement/manifesto (Franco-German manifesto 2019) but with considerable pushback from Brussels and the Commission concerned, not least, about protectionism. Yet the EU has to find a way to combine its support for open markets and free trade with ensuring it has strategic influence (economic and political) in the rapidly and profoundly changing global context – and not simply stick to neo-liberal tenets (Gow, chapter 17). That includes creating the conditions both to regulate ‘big tech’ (Burnett, chapter 9) and to allow the development of European companies that can compete on the global stage in the face of the US and China moving into positions of dominance from big tech to AI.

But finding agreement on such a new strategy will not be easy. And it will need to encompass a more inclusive approach, if it is to avoid being seen to focus on big companies and globalisation alone (something some European business leaders are now supporting (Financial Times 2019)). A green new deal has been proposed at several points in the last decade (and from various different political directions). Any strategic 21st century trade and industrial policy will need to be situated in the context of creating a stronger net-zero emissions EU economy with higher and earlier targets (CAN Europe 2019). It will also need to ensure the EU’s range of climate and environment policies contribute more strongly to the Paris Agreement (Annalisa Savaresi and Miranda Geelhoed, chapter 13 of this report). Avoiding divisions within the EU through avoiding more ambitious climate targets must not be any implicit part of the EU’s approach – and the European Commission’s November 2018 proposals on a net-zero target for 2050 are a step in the right direction (European Commission 2018).

Tackling inequality and poverty in the EU and internationally: Any comprehensive green new deal will need to be a strategy that is created for and with the EU’s citizens, not least in tackling inequality and poverty across the EU (getting worse on some indicators (Lindberg 2019)). It will need to work with the EU’s youth in a bottom-up way – allowing younger people and civil society to shape policy not just be part of periodic, sometimes top-down, policy dialogues (Craig Wilson, chapter 11, and Paul Reddish, chapter 7 of this report). Within and beyond its borders, for the EU to impact positively at home and internationally, the EU’s development and trade policies will need to be fit for purpose and to move forward more progressively. The EU’s commitment to the UN sustainable development goals (SDGs) is, of course, welcome. But there are serious concerns that some of the EU’s political and policy directions risk moving backwards, unlearning key development lessons, and focusing more on the EU’s fears and divisions on migration or concerns in its own neighbourhood (Ratcliff, chapter 16).

Stronger foreign policy: At the same time, this requires positioning the EU more strongly in terms of wider foreign and defence policy in the shifting global power order, no easy task (Kenealy, chapter 14). The EU has a global strategy (EU 2016) and a broad goal of strategic autonomy. But its current divides, and some of its policy choices, do not allow the EU to be on the front foot, especially where the major powers of the US, China and Russia all have their own agendas, and where none of them is directly supportive of the EU, or even deliberately obstructive or divisive (Kenealy, chapter 14).

Divisions and fragmentation on migration have impacted on to development policy and human rights (Sherriff, chapter 15, Fletcher and Lock, chapter 2, Ratcliff, chapter 16). And from differences of view over Russian sanctions, in the face of its annexation of Crimea and intervention in eastern Ukraine, to the 16+1 China grouping, connecting China with 16 EU member states (now in fact 17, with Greece joining in April), the EU does not currently look like it is moving in the direction of more unity, even despite the European Commission labelling China a ‘systemic rival’ on investment earlier this year. The EU also faces systematic attempts from US president Trump to create divisions, not least where, on substantive issues such as the Iran nuclear deal and climate change, Trump has broken or withdrawn from previous policy agreements.

The EU must not be a bystander: The EU faces major and multiple challenges. Its internal divides make finding a powerful, strategic way through those challenges very hard. To make a reality of the goal of strategic autonomy in a world that still respects multilateralism and to find a new, focused strategic dynamic within the EU and globally is tough. But the EU cannot afford to be a bystander. It can build on existing strengths and successes – from competition and trade policy (including regulatory challenges to big tech) to much of its climate and development policies, to some of its eurozone reforms.

But it will need imaginative, acute political skills and leadership to see how to handle and build relations with more difficult and obstructionist countries both within and beyond the EU. The EU must also avoid stalling or going in the wrong direction in the face of such obstructionism. Flexibility and differentiated integration, handled carefully, can be part of the way through at the current time. But some fights, such as over the rule of law, will need to be faced straight on.

More debate across the EU can also be a constructive way to find solutions and sideline those who prefer stalemate to progress. Citizens’ debates can be one part of this, but more imaginative routes ahead would include finding ways for greater civil society roles in shaping policy – including a serious look at the role of citizens’ assemblies (which take a central role in developing core policy proposals, not simply in discussing ideas). Citizens’ assemblies at EU level might pose challenges, but a policy process whereby politicians, officials and experts have to advise a citizens’ assembly could be powerful democratically as well as in the resulting policy outcomes (Organ 2018).

The EU needs to rediscover its political and strategic skills despite the formidable political challenges to doing so at this juncture in the EU and internationally. Muddling through pragmatically will get the EU somewhere, but it will not be enough; and it will risk allowing fractures to deepen at home and the EU to be sidelined internationally. The EU has 60 years of experience in finding a path ahead. And while current challenges look exceptional, the EU can and should find a strategic route through its own divisions and to tackle these multiple challenges.

3. Scotland’s Interests and Contribution

Despite its divisions, the EU still has a strong basis from which it could create a more forward-looking overarching strategy in these turbulent and disruptive times. The EU needs to regain confidence in its values and be confident that its values, interests and rights can work together rather than be in conflict, even at a time of disruption and change. The EU needs to build on its best strategies in development, human rights and climate change and continue to be a leading voice in promoting the benefits of multilateralism. It needs to urgently tackle its own divisions, and find a route to being a stronger global actor. A strong new overarching and inclusive strategy for sustainable development – a green new deal or a 21st century industrial strategy – can shape and guide policy, have major impact (and help overcome divisions) at home and internationally.

There are different views and politics within the EU over such an agenda, and it will need to be fought and argued for. Scotland is, for now, a country within the EU – though not a state. Yet it has, as this report shows, a range of interests in, and contributions it can make to, these vital policy developments and debates, as well as to the EU’s overall future strategy. It also has a range of ways to engage in European policy networks and debates both at governmental level and through civil society, business, NGO, research, union and other networks.

The Scottish government’s European policy in the last three years has inevitably been dominated by Brexit. But Scotland already makes a wide-ranging contribution to many key areas concerning the future of Europe. From ambitious climate targets and renewable energy policies to culture, to policies on youth and inequality to a human rights strategy aimed at becoming a leading role model, Scotland has much to contribute to EU networks and debates.

Yet, at the same time, Scotland lacks a clear overarching European strategy. The Scottish government has taken some key steps in recent years, including setting up its network of hubs in Berlin, Dublin and Paris while also expanding its Brussels office (Salamone, chapter 4), and developing its Nordic/Baltic and its Arctic policies (Kenealy, chapter 14). And it is, of course, constrained by its devolved powers – having an external affairs remit, but with foreign policy reserved to UK level. Nonetheless, Scotland’s approach to para-diplomacy has waxed and waned over the years (Keating, chapter 6). Its current European approach could perhaps best be described as sectoral and pragmatic rather than a strategic, extensive para-diplomacy.

There is scope, whatever happens with Brexit – and indeed with independence – to consider a more strategic approach. This would be in Scotland’s interests. There is much material both within existing policies and through the actions of the full gamut of non-governmental actors to build a more coherent and ambitious European strategy. 2019 is a vital moment for the European Union given the substantive challenges it faces and, more specifically, as it enters a new five-year institutional cycle.

Scotland does not need to imitate the UK government and be on the sidelines of those debates; and its current engagement in a predominantly sectoral way is not allowing the creative, big picture contribution that Scotland could make to strategic EU debates to be heard. Scotland is, of course, only one voice amongst many, but other state and non-state actors across the EU have shown how to engage, network and influence. And Scotland is well-engaged in many EU networks.

What the Scottish government now needs to do is to step up strategically with a new European strategy, working in alliance with partners at all levels across the EU and domestically. It needs to identify its interests, goals, priorities and values, and create a clear strategic approach for the coming years. Through creating a coherent, high-impact policy framework, Scotland can protect and promote its European relationships and contribute to the EU’s path ahead.

This new strategy needs to be rooted in domestic participation and debates too. The Scottish government should look at creating citizens’ dialogues, following the example of President Macron in France. It should also consider establishing a fully-fledged citizens’ assembly on Europe (this could relate to the initiative announced by Nicola Sturgeon in mid-April to establish a broad remit citizens’ assembly to consider Scotland’s constitutional future). The Scottish government should undertake a strategic bilateral audit of its key EU relations, and consider how to ensure, across its policy areas, it is ‘thinking Europe’ (Salamone, chapter 4).

By the end of 2019, there will be a new European Parliament, a new Commission president and a new European Council president. They will, with the EU member states, be setting the direction of the EU for the next crucial five years. Scotland should aim to make its own constructive and strategic contribution to that new direction.

I would like to thank David Gow for his perceptive comments on this chapter, and the Strategic Advisory Group to SCER’s future of Europe programme for providing many insights into the contemporary EU and into Scotland’s European role, many of which I have drawn on in this chapter.

References

Amnesty International (2018) ‘Spain: Leading Catalan Figures Jordi Sànchez and Jordi Cuixart Should Be Freed’, Press Release, 15 Oct 2018, https://www.amnesty.org.uk/press-releases/spain-leading-catalan-figures-jordi-sanchez-and-jordi-cuixart-should-be-freed-0.0

Climate Action Network (CAN) Europe (2019) ‘Time to Pick Up the Pace: Insights into the Draft National Energy and Climate Plans’, Apr 2019, http://www.caneurope.org/publications/reports-and-briefings/1760-report-time-to-pick-up-the-pace-insights-into-the-draft-national-energy-and-climate-plans

Dempsey, J (2019) ‘Judy Asks: Europe – Is the System Broken?’, Carnegie Europe, 28 Feb 2019, https://carnegieeurope.eu/strategiceurope/78469

European Commission (2016) Shared Vision, Common Action: A Stronger Europe (EU Global Strategy), Jun 2016, http://eeas.europa.eu/archives/docs/top_stories/pdf/eugs_review_web.pdf

European Commission (2018) A Clean Planet for All: A European Strategic Long-term Vision for a Prosperous, Modern, Competitive and Climate Neutral Economy, COM(2018) 773 final, 28 Nov 2018, https://ec.europa.eu/energy/en/topics/energy-strategy-and-energy-union/2050-long-term-strategy

European Policy Centre (2019) ‘Yes, We Should! EU Priorities for 2019-2024 Challenge Europe’, Report, 18 Apr 2019, http://www.epc.eu/pub_details.php?cat_id=7&pub_id=9136

Financial Times (2019) ‘European Industrial Chief Pledges to Bring Back Jobs from China’, Financial Times, Hall, B and Barber, L, 23 Apr 2019, https://www.ft.com/content/e5c3d0f0-65df-11e9-9adc-98bf1d35a056

Franco-German Manifesto (2019) A Franco-German Manifesto for a European Industrial Policy Fit for the 21st Century, German Federal Ministry for Economic Affairs and Energy and French Ministry for the Economy and Finance, 19 Feb 2019, https://www.gouvernement.fr/en/a-franco-germanmanifesto-for-a-european-industrial-policy-fit-for-the-21st-century

Hughes, K (2011) ‘European Politics and the Euro Crisis: Ten Failures’, Report, Friends of Europe, Brussels

Hughes, K (2017) ‘EU-Africa Relations: Strategies for a Renewed Partnership’, Report, Friends of Europe, May 2017, https://www.friendsofeurope.org/global-europe/eu-africa-relations-strategies-renewed-partnership

Hughes, K (2019a) ‘Brexit: Eine Chronik des Versagens’, Edition, Le Monde diplomatique, ‘Großbritannien, goodbye and hello’, German edition, No 25

Hughes, K (2019b) ‘Failing UK Politics Must be Called to Account’, Comment, Scottish Centre on European Relations, 5 Feb 2019, https://www.scer.scot/database/ident-10182

Jones, B, and Torrey T (2019) ‘Democracy & Disorder: The Struggle for Influence in the New Geopolitics, Report, Brookings, Feb 2019, https://www.brookings.edu/research/democracy-disorder-the-struggle-for-influence-in-the-new-geopolitics

Kagan, R (2019) ‘The New German Question: What Happens When Europe Comes Apart?’, Foreign Affairs, May/Jun 2019 issue, https://www.foreignaffairs.com/articles/germany/2019-04-02/new-german-question

Kavalski, E (2019) ‘China’s “16+1” Is Dead? Long Live the “17+1”’, The Diplomat, 29 Mar 2019, https://thediplomat.com/2019/03/chinas-161-is-dead-long-live-the-171

Kramp-Karrenbauer, A (2019) ‘Doing Europe Right‘ (‘Europa jetzt richtig machen‘), Welt am Sonntag, 10 Mar 2019, https://www.welt.de/politik/deutschland/article190037115/AKK-antwortet-Macron-Europa-richtig-machen.html

Lehne, S (2019) ‘Europe’s East-West Divide: Myth or Reality?’, Carnegie Europe, 11 Apr 2019, https://carnegieeurope.eu/2019/04/11/europe-s-east-west-divide-myth-or-reality-pub-78847

Lévy, B-H, Kundera, M et al (2019) ‘Fight for Europe – Or the Wreckers Will Destroy It’, The Guardian, 25 Jan 2019, https://www.theguardian.com/commentisfree/2019/jan/25/fight-europe-wreckers-patriots-nationalist

Lindberg, S (2019) ‘Are Increasing Inequalities Threatening Democracy in Europe?’, Carnegie Europe, 4 Feb 2019, https://carnegieeurope.eu/2019/02/04/are-increasing-inequalities-threatening-democracy-in-europe-pub-78270

Macron, E (2019) ‘Dear Europe, Brexit Is a Lesson for All of Us: It’s Time for Renewal’, The Guardian, 4 Mar 2019, https://www.theguardian.com/commentisfree/2019/mar/04/europe-brexit-uk

Marzocchi, O (2019) ‘The Protection of Fundamental Rights in the EU: European Parliament Achievements during the 2014-2019 Legislative Term and Challenges for the Future’, PE 621.911, European Parliament, Apr 2019, http://www.europarl.europa.eu/thinktank/en/document.html?reference=IPOL_BRI(2019)621911

Merritt, G (2019) ‘Calling All MEPs: Think Big to Defy Populist Scare-Mongering’, Comment, Friends of Europe, 9 Apr 2019, https://www.friendsofeurope.org/publication/calling-all-meps-think-big-defy-populist-scare-mongering-giles-merritt

Organ, J (2018) ‘How an EU Citizens’ Assembly Could Help to Renew European Democracy’, The Conversation, 23 Nov 2018, https://theconversation.com/how-an-eu-citizens-assembly-could-help-to-renew-european-democracy-98894

Shattuck, J (2019) ‘How Viktor Orban Degraded Hungary’s Weak Democracy’, The Conversation, 11 Jan 2019, https://theconversation.com/how-viktor-orban-degraded-hungarys-weak-democracy-109046

Maria Fletcher | University of Glasgow
Tobias Lock | National University of Ireland, Maynooth

Introduction

This chapter looks at human rights in the EU and Scotland. It begins with a summary of the historical development of human rights protection within the scope of EU law and, next, highlights some of the current challenges the EU faces and its current aspirations as a human rights actor. This chapter then assesses Scotland’s recent activity in the field of human rights protection and, against the backdrop of European Union human rights protection, suggests how and to what extent it might lead or follow vis-à-vis the European Union and other states/sub-states. Scotland, and two prominent areas of recent activity, are next highlighted.

Interestingly, both the EU and Scotland are placing prominence on better protection of social rights, and while elite-level political ambitions are admirable, legal constraints are equally considerable. Nonetheless, there is some scope for cross-fertilisation to push agendas onwards and upwards in terms of rights protection.

The European Union: Achievements and Developments

While there was no overt reference to human rights in the founding treaties (European Commission 2018) of what we know today as the European Union, human rights emerged from the late 1960s onwards through judicial and political discourse.

The European Court of Justice (CJEU) first articulated a new constitutional account of the role of human rights in the Community (today, EU) legal order. From 1969 in Stauder (CJEU 1969), later consolidated in Internationale Handelsgesellschaft (CJEU 1970) and Nold (CJEU 1977), the court declared that respect for fundamental rights – inspired by the common constitutional traditions of the member states and international human rights treaties on which they collaborated – was to be part of the general principles of Community law and would be protected by the court.[1]

The EU’s political institutions backed up this judicial development in a 1977 Joint Declaration of the European Parliament, Council and Commission on fundamental rights, which asserted that that they too would respect these fundamental rights, as general principle of EC law, in the exercise of their powers.

It was not until the early 1990s, with the Treaty of Maastricht amendments, that the constitutional treaty framework for human rights protection began to take shape. For the first time, formal treaty recognition was given to human rights and fundamental freedoms as part of EU law, a development that coincided with the expansion of EU competences to policies having a direct impact on individuals’ human rights, such as criminal and civil law cooperation, policing and immigration and asylum.

This was followed in 1997 by the Treaty of Amsterdam, which affirmed that the European Union was ‘founded on’ respect for human rights[2] and which significantly enhanced the equality principle in EU law by empowering the EU institutions to adopt legislation to combat discrimination across a range of grounds – sex, race or ethnic origin, religion or belief, disability, age or sexual orientation – within the fields of existing EU competences.[3] The Treaty of Amsterdam also introduced the ‘suspension of rights’ mechanism for any EU member state which was found responsible for a serious and persistent violation of the EU’s founding values – which include human rights[4] – amended several years later by the Treaty of Nice to cover situations involving a risk rather than actual violation of rights.[5]

Following a novel and inclusive process of consultation and negotiation, the EU Charter of Fundamental Rights and Freedoms was drafted and ‘proclaimed’ in 2000, at the time of the Treaty of Nice. The charter offers a full articulation of the range of civil, political, economic and social rights which should be protected within the scope of EU action. Significantly, it was given binding legal status by the Treaty of Lisbon in 2009. At the same time, the Treaty of Lisbon introduced an obligation for the EU to accede to the European Convention on Human Rights.[6]

These constitutional developments were, over time, complemented by institutional changes such as the establishment of a network of independent experts on fundamental rights (now defunct) and the EU Fundamental Rights Agency. In short, as the EU has evolved, it has done so with increasing reference to the value of, and need to protect, human rights.

EU Shortcomings

Despite the EU’s ambitions in the field of human rights, one can identify a number of legal and actual shortcomings as far as the current level of protection is concerned.

Limited reach of the Charter: The Charter of Fundamental Rights is primarily binding on the institutions of the EU. It is only binding on the member states when they are implementing Union law. This is the case when a member state institution is either applying EU law (CJEU 2013) – for example, when executing a European arrest warrant – or where a member state is restricting EU fundamental freedoms (CJEU 2014a) – for example, a member state restricting the advertising for certain products from other member states for reasons of child protection. Thus, the large number of rights – compared with most domestic bills of rights – guaranteed by the charter can only be invoked before the national courts in a limited set of circumstances.

Failure to accede to the ECHR: The Treaty of Lisbon, in Article 6(2) TEU, provides an explicit legal basis for the accession of the EU to the European Convention on Human Rights (ECHR).[7] Indeed, it places the EU under a duty to accede. Such accession would have the objective of increasing the effectiveness and coherence of fundamental rights protection in Europe by subjecting the EU to external scrutiny by the Strasbourg court; but, as of today, this has yet to take place. After negotiation and the conclusion of a draft accession agreement, the Commission asked the CJEU for an opinion on its compatibility with the EU treaties. To huge surprise and criticism, the CJEU in Opinion 2/13 (CJEU 2014b) found it wanting on a number of grounds, including that it ran counter to the autonomy of the EU legal order. There are currently no accession negotiations taking place.

Striking a balance between mutual trust and fundamental rights: The Area of Freedom, Security and Justice (AFSJ) encompasses a range of particularly sensitive policy fields, including immigration, asylum, border control, civil and criminal law cooperation and cross border policing. As such, it is an area of EU action in which special consideration must be given to human rights and yet the EU has struggled to do so (Heikkilä et al 2015), hampered by a strong security focus, a lack of coherence and a lack of solidarity among member states.

One particularly challenging stumbling block has been the underpinning organising principle of mutual recognition, which works on the basis of an assumption of trust in other member states’ legal systems and standards to effect quasi-automatic acceptance of judicial decisions. For instance, member states have to execute each other’s arrest decisions unless they can invoke one of the exceptions laid down by EU secondary law; such exceptions do not include fundamental rights. The problem is that the foundation of trust is not solid. Member states may be bound by the same rules, including, harmonised rules within the framework of the AFSJ or general principles of EU law and obligations pursuant to the ECHR and the EU Charter of Fundamental Rights, but in reality this does not always secure equivalent protection of rights. A key question then is where and how human rights fit into a legal framework that has mutual recognition and trust at its core.

The court has grappled with this question in the last decade, more recently acknowledging that mutual trust is not ‘blind’ and therefore can and should be rebuttable but, in view of the fundamental character of the principle of mutual recognition, it must only be rebutted and limited in exceptional circumstances. The CJEU (2011), following a judgment of the European Court of Human Rights (2011) to broadly the same effect, first accepted that exceptions to the principle of mutual recognition on fundamental rights grounds, even in the absence of explicit provisions in secondary law, were possible in the context of EU asylum law. A similar finding (CJEU 2016) in the context of criminal law followed in 2016, where fundamental rights concerns could prevent the transfer of a criminal suspect under the terms of the European Arrest Warrant Framework Decision. In general terms, such non-execution of mutual recognition instruments in the field of asylum and criminal justice, where fundamental rights are so clearly at stake, should be treated as a signal of serious problems.

Weak protection of social rights in the charter: Apart from its limited applicability in the member states, the charter has a further – less apparent – weak point: the protection of social rights. While its solidarity chapter contains a long list of provisions dealing with social issues – protection of employees, social security and social assistance, health care, and more – these are often mere ‘principles’ and not ‘rights’. This difference is significant in that, in contrast to rights, charter principles require prior implementation by the legislator or the executive and are ‘judicially cognizable only in the interpretation of such acts and in the ruling on their legality’.[8] This means that the protection they offer is weaker than that offered by other charter provisions, in particular those embodying civil and political rights.

That said, the charter has been in force for less than ten years now and the case law on its reach is still developing. For instance, recently the CJEU (2018b) recognised that Article 31(2) of the Charter giving every worker a right to the limitation of maximum working hours, to daily and weekly rest periods and to annual leave was horizontally effective (it could be invoked not only against the Union and the member states, but also against private employers). It remains to be seen if developments in this direction could lead the way towards a healthier recalibration of the balance between economic and social rights in the EU.

Rule of law crisis: The ongoing rule of law crisis in certain EU member states, Hungary and Poland in particular, reveals a further shortcoming. It raises serious doubts over whether the EU possesses adequate means of addressing instances of human rights and rule of law backsliding in its member states. The only means of sanctioning such backsliding is provided for by Article 7 of the Treaty on European Union. That article provides for a two-step procedure: the European Council can – with the consent of the European Parliament – determine that there is a ‘clear risk’ of a serious breach of the EU’s values by a member state. Such a finding does not have any immediate legal consequences. Only if, in a second step, the European Council finds unanimously, and with the consent of the European Parliament, that there has been a ‘serious and persistent breach’ of these values by a member state, can that member state’s voting rights be suspended – the so-called “nuclear option”. However, this latter consequence requires a further vote in the Council, this time acting by qualified majority.

In the case of Hungary, Article 7 TEU has not yet been activated, to considerable criticism. In the case of Poland, the European Commission issued a reasoned proposal at the end of 2017, endorsed by the European Parliament, calling, for the first time in the history of the Article 7 TEU procedure, for the European Council to adopt a ‘nuclear option’ decision against Poland. At the time of writing (European Commission 2017b) no such decision has been taken. The political and practical burdens of Article 7 TEU apparently severely limit its use as an effective legal tool. Meanwhile, other legal routes (CJEU 2018a) to try to (indirectly) challenge these problematic state reforms in the courts have been found.

Migration Crisis

The EU’s policies towards asylum seekers and migrants from third countries has raised further human rights concerns (Human Rights Watch 2018). Particular criticisms relate to the EU’s policy of externalisation, where third (allegedly safe) countries such as Turkey agree to host potential asylum seekers even though reception conditions and the asylum system in these countries are hardly compliant with EU human rights standards.

In addition, detention centres in some EU member states suffer from overcrowding and conditions that are in violation of human rights. Finally, the EU is criticised for not doing enough to prevent migrant deaths in the Mediterranean.

EU Ambitions

Recent years have seen the EU focus more attention on better protection of fundamental social rights. After a relatively modest start with the non-binding Community Charter on Fundamental Social Rights for Workers in 1989, adopted by all member states apart from the UK, the inclusion of numerous social provisions in the EU Charter of Fundamental Rights – binding since 2009 and the Treaty of Lisbon’s entry into force – marked an important step despite its deficits noted above.

More recently, in late 2017, the European Parliament, Council and Commission solemnly proclaimed the European Pillar of Social Rights (European Commission 2017a). It spells out a number of economic and social rights in a (non-legally binding) document. A clear focus is on employment objectives, but it contains broader commitments concerning housing and access to essential services. Further evidence of the EU’s commitment to the advancement of social rights can be found in the EU’s external human rights policy (European Parliament 2018).

Commitments and ambitions aside, it is clear that the EU as a human rights actor faces considerable hurdles and challenges – be they political or legal.

Scotland and Human Rights

The Scottish government is generally supportive of human rights and pursues a policy of embedding human rights into its day-to-day business. That high-level ambition does not lead to human rights compliance in all cases, however. Recently, the Council of Europe’s Commissioner for Human Rights (Council of European 2018) called on Scotland to increase the age of criminal responsibility in order to better protect the rights of children. Another common critique (Human Rights Consortium 2018) of Scotland’s human rights record relates to high levels of poverty in the country.

That said, Scotland has recently seen the adoption of measures that have the potential of putting it, in some ways, at the forefront of the development of human rights protection in Europe. Two developments of particular relevance are the introduction of a ‘right to social security’ in the Social Security (Scotland) Act 2018 and the report of the first minister’s advisory group on human rights leadership. Both are particularly innovative in the field of economic, social and cultural rights, which the above discussion identified as one of the weak points in the human rights protection guaranteed by EU law.

The Right to Social Security

The Social Security (Scotland) Act 2018 has been described as being without parallel in its expression of a particular vision of what a social security system should be (O’Cinneide 2019). It embodies a rights-based approach to social security in Scotland and is thereby reflective of international human rights law.[10]

The Social Security (Scotland) Act 2018 grounds social security – as far as it is devolved to Scotland – in a right to social security, which, in the words of the Act, ‘is itself a human right and essential for the realisation of other human rights.’ Coupled with other social security principles mentioned alongside it, this marks a departure from the approach in UK-wide social security law.

The effects of the ‘right to social security’ are not yet entirely clear, but it is very likely that the rights-based approach will frame political and legal arguments on the distribution of social security payments in Scotland. It is, therefore, not merely a symbolic step, but also a substantive one.

Despite that, the legal effects of the Social Security (Scotland) Act 2018 are curtailed. First, it only applies to those aspects of social security that are devolved (currently amounting to around 15% of the overall welfare budget). Second, there is an ambiguity latent in the Act in that the right to social security is listed as one of the ‘Scottish social security principles’ and according to the Act ‘breach of the principles does not of itself give rise to grounds for any legal action’. The justiciability of the right to social welfare is therefore severely limited.

Nonetheless, the overall approach is innovative and – if it proves successful – may well provide a positive example leading other European states to adopt similar rights-based approaches.

Future Developments in Scotland

The Social Security (Scotland) Act 2018 may, in time, prove to be only a first step towards greater protection of economic, social, cultural, and environmental rights in Scotland. In January 2018, the Scottish first minister, Nicola Sturgeon, appointed an advisory group on human rights leadership which was tasked with leading ‘a participatory process to make recommendations on how Scotland can continue to lead by example in human rights, including economic, social, cultural and environmental rights.’

These political efforts and resulting commitments were motivated by Brexit and the resulting disappearance of the Charter of Fundamental Rights from Scots law. Under the Scotland Act 1998 – while the UK is still an EU member state – the Scottish parliament is not able to adopt legislation that contravenes EU law, including EU fundamental rights. After Brexit, this will change, not only because of the mere fact of the UK having left the EU, but particularly because the UK parliament singled out the Charter as the only major piece of EU law that would not be carried over into UK law, as so-called ‘retained EU law’, post-Brexit.[11]

The advisory group (2018a)[12] recommended the adoption of an Act of the Scottish Parliament that would 1) restate the civil and political rights already contained in the UK’s Human Rights Act 1998; 2) introduce key social, economic and cultural rights, the right to a healthy environment and specific rights belonging to children, women, persons with disabilities, on race and rights for older persons and for the LGBTI communities into Scots law.

Crucially, the Act would contain schedules outlining the content of these newly introduced rights and would stipulate a duty on the Scottish government to ‘progressively realise’ those rights using ‘the maximum of available resources’.

The first minister endorsed the report and announced (Advisory group 2018b) that she would set up a national task force in early 2019 to start implementing the recommendations.

If the Act is adopted as recommended, it would oblige all three branches of government to give effect to the rights protected by it. The Scottish parliament would be under an obligation to give effect to rights in subsequent legislation and its human rights committee would be given an enhanced role in pre-legislative scrutiny. The Scottish government would need to give effect to these rights in two stages: initially, its obligations would be limited to a duty to give due regard to these rights; later, this duty would mature into a duty to comply with the rights. Finally, the judiciary would be enabled, as a last resort, to review compliance with the rights protected by the Act.

If the advisory group’s recommendations are followed, Scotland could become a leader in the protection of human rights – particularly economic, social, cultural and environmental rights – in Europe.

Conclusion: Potential for Cross-Fertilisation

The above discussion has shown that both Scotland and the EU have high ambitions to be human rights leaders even though their practical record does not always live up to that ambition. They have in common that they operate under similar constraints in that they are not able to enact human rights laws that are applicable in all circumstances due to their limited competences.

There is, notwithstanding these limitations and the complexities of human rights protection more generally, potential for cross-fertilisation.

So far as within the competence of the Scottish parliament, Scotland can try to mirror human rights developments at the EU level and thereby remain in step with them. The UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill – partly struck down by the UK Supreme Court (2018) in December 2018 – contained a clause granting the Scottish government powers to bring EU law introduced after Brexit into Scots law for a period of three years after exit day. This provision was considered to be within the competence of the Scottish parliament and the Scottish government (2019) announced that it would bring forward legislation with the same effect. It nonetheless shows an openness on part of the Scottish parliament to the idea of keeping in step with developments at the EU level despite Brexit.

Cross-fertilisation could equally happen the other way around over time, even though it would probably be harder to achieve in practical terms. It is possible to distinguish two scenarios. First, the EU might take inspiration from developments in Scotland and other states around promoting the protection of economic, social, cultural and environmental rights, after all the ‘common constitutional traditions of the member states’ are a recognised source of EU fundamental rights There would be obvious limits in legal terms: as far as the EU institutions are concerned, they can only act within the powers conferred upon them and the social sphere is largely not covered by those powers. But we have seen that non-legal initiatives in relation to the protection of social rights are underway at the EU level, which is a first and important step. As far as the potential for Charter reform is concerned, this would require treaty change and there is no discernible willingness on the part of the member states to go down that route, certainly, at the moment.

The second scenario would see individual member states – be it at the state or sub-state level – take inspiration from developments in Scotland outlined above. There is some potential for this. For instance, the Irish Convention on the Constitution recommended in 2014 that economic, social and cultural rights should be better protected in Ireland. Yet so far this proposal has not been taken forward by the political elites. A positive experience in Scotland in this regard might change this.

The EU’s record on human rights advancement and protection is certainly patchy, despite the supportive rhetoric, ambitions and the legal arsenal at its disposal. Where constitutional frameworks are not complete and indeed intertwined – as with the EU and Scotland – it is often the judicial branch that plays a crucial role in identifying, interpreting and applying fundamental rights exceptions and protections.

Information-sharing and mutual-learning through engagement in bodies such as the European Network of Equality Bodies may assist with cross-fertilisation and take on a particular resonance for Scotland and the UK following withdrawal from the EU.

References

Advisory Group (2018a) ‘Recommendations for a New Human Rights Framework to Improve People’s Lives: Report to the First Minister’, First Minister’s Advisory Group on Human Rights Leadership, 10 Dec 2018, https://humanrightsleadership.scot/wp-content/uploads/2018/12/First-Ministers-Advisory-Group-on-Human-Rights-Leadership-Final-report-for-publication.pdf

Advisory Group (2018b) ‘Update – Recommendations for a New Human Rights Framework to Improve People’s Lives: Report to the First Minister’, First Minister’s Advisory Group on Human Rights Leadership, 10 Dec 2018, https://humanrightsleadership.scot/wp-content/uploads/2018/12/First-Ministers-Advisory-Group-post-10th-December-update.pdf

CJEU (1969) Case C-29/69 – Stauder v Stadt Ulm, Judgment of the Court of 12 November 1969, Court of Justice of the European Union, http://curia.europa.eu/juris/liste.jsf?language=en&jur=C,T,F&num=29-69&td=ALL

CJEU (1970) Case C-11/70 – Internationale Handelsgesellschaft mbH v Einfuhr- und Vorratsstelle für Getreide und Futtermittel, Judgment of the Court of 17 December 1970, Court of Justice of the European Union, http://curia.europa.eu/juris/liste.jsf?language=en,T,F&num=11-70

CJEU (1977) Case C-4/73-DEPE – Nold KG v Commission, Order of the Court of 11 January 1977, Court of Justice of the European Union, http://curia.europa.eu/juris/liste.jsf?language=en,T,F&num=C-4/73

CJEU (2011) Joined Cases C‑411/10 and C‑493/10, Judgment of the Court (Grand Chamber) of 21 December 2011, Court of Justice of the European Union, http://curia.europa.eu/juris/document/document.jsf?text=&docid=117187&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=1447238

CJEU (2013) Case C‑617/10 – Åklagaren v Hans Åkerberg Fransson, Judgment of the Court (Grand Chamber) of 26 February 2013, Court of Justice of the European Union, http://curia.europa.eu/juris/document/document.jsf?docid=134202&doclang=EN

CJEU (2014a) Case C-390/12 – Pfleger and Others, Judgment of the Court (Third Chamber) of 30 April 2014, Court of Justice of the European Union, http://curia.europa.eu/juris/liste.jsf?language=en&num=C-390/12

CJEU (2014b) Opinion 2/13 of the Court (Full Court) of 18 December 2014, Court of Justice of the European Union, http://curia.europa.eu/juris/document/document.jsf?text=&docid=160882&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=1446956

CJEU (2016) Joined Cases C‑404/15 and C‑659/15 PPU, Judgment of the Court (Grand Chamber) of 5 April 2016, Court of Justice of the European Union, http://curia.europa.eu/juris/document/document.jsf?text=&docid=175547&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=1447662

CJEU (2018a) Case C-216/18 PPU – Minister for Justice and Equality, Judgment of the Court (Grand Chamber) of 25 July 2018, Court of Justice of the European Union, http://curia.europa.eu/juris/liste.jsf?language=en&td=ALL&num=C-216/18%20PPU

CJEU (2018b) Joined Cases C-569/16 and C-570/16, Judgment of the Court (Grand Chamber) of 6 November 2018, Court of Justice of the European Union, http://curia.europa.eu/juris/document/document.jsf?text=&docid=207330&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=1447775

Council of Europe (2018) ‘Commissioner Urges Scotland’s Government to Increase the Age of Criminal Responsibility’, Letter (6 Dec 2018), Commissioner for Human Rights, 20 Dec 2018, https://www.coe.int/en/web/commissioner/-/commissioner-urges-scotland-s-government-to-increase-the-age-of-criminal-responsibility

ECHR (2011) Case of MSS v Belgium and Greece, Application No. 30696/09, Judgment (Grand Chamber) of 21 January 2011, European Court of Human Rights, https://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=001-103050&filename=001-103050.pdf&TID=cwvzdogrzt

European Commission (2017a) European Pillar of Social Rights, 18 Oct 2017,
https://ec.europa.eu/commission/sites/beta-political/files/european_pillar_of_social_rights.pdf

European Commission (2017b) ‘Rule of Law: European Commission Acts to Defend Judicial Independence in Poland’, 20 Dec 2017, http://europa.eu/rapid/press-release_IP-17-5367_en.htm

European Commission (2018) About the EU: EU Treaties, 4 Jun 2018, https://europa.eu/european-union/law/treaties_en

European Parliament (2018) ‘Enhancing EU Actions on Economic, Social and Cultural Rights within its Human Rights Policy’, PE 603.838, Feb 2018,
http://www.europarl.europa.eu/RegData/etudes/STUD/2018/603838/EXPO_STU(2018)603838_EN.pdf

Heikkilä, M, Mustaniemi-Laakso, M, Egan, S, Finlay, G, Lewis, T, Heschl, LM, Salomon, S, Planitzer, J, Sax, H (2015) ‘Critically Assessing Human Rights Integration in AFSJ Policies’, FRAME, 31 Oct 2015, https://repository.gchumanrights.org/handle/20.500.11825/107

Human Rights Consortium Scotland (2018) ‘Submission to the UN Office of the High Commissioner for Human Rights’, Sept 2018, https://www.ohchr.org/Documents/Issues/EPoverty/UnitedKingdom/2018/NGOS/HumanRightsConsortiumScotland.pdf

Human Rights Watch (2018) ‘Towards an Effective and Principled EU Migration Policy: Recommendations for Reform’, Jun 2018, https://www.hrw.org/news/2018/06/18/towards-effective-and-principled-eu-migration-policy

O’Cinneide, C (2019) ‘The Social Security (Scotland) Act 2018? – A Rights-based Approach to Social Security?’, Edinburgh Law Review, 23 117(119)

Scottish government (2019) Continuity Bill Update, 5 Apr 2019, https://www.gov.scot/news/continuity-bill-update

UK Supreme Court (2018) The UK Withdrawal from the European Union (Legal Continuity)(Scotland) Bill – A Reference by the Attorney General and the Advocate General for Scotland, Judgment, [2018] UKSC 64, 13 Dec 2018, https://www.supremecourt.uk/cases/uksc-2018-0080.html

[1] Some years earlier, the CJEU had affirmed the principles of direct effect and of primacy of EU law, after which certain national courts began to express concerns about the effects which such case law might have on the protection of constitutional values such as fundamental rights. If EU law was to prevail even over domestic constitutional law, it would become possible for it to breach fundamental rights.
[2] Articulated today in Article 2 of the Treaty on European Union (TEU).
[3] Then Article 13 EC, now Article 19 TFEU.
[4] Article F.1 TEU (Treaty of Amsterdam).
[5] Article 7 TEU (Treaty of Nice).
[6] Article 6(2) TEU.
[7] Discussions on accession had been on the EU agenda for decades. In 1994, in Opinion 2/94, the Court insisted that the treaties lacked the appropriate legal competence provisions for accession.
[8] Article 52(5) of the EU Charter of Fundamental Rights.
[10] See Article 22 of the Universal Declaration of Human Rights; Article 9 of the International Covenant on Social, Economic and Cultural Rights; and Articles 12 and 13 of the European Social Charter.
[11] See s. 5(4) European Union (Withdrawal) Act 2018.
[12] Tobias Lock was a member of the First Minister’s Advisory Group on Human Rights Leadership.

Sionaidh Douglas-Scott | Queen Mary, University of London

The EU’s Strategy, Challenges and Opportunities

In general, citizenship involves being a member of a particular national community. It usually includes certain rights or privileges not granted to non-members, such as the right of political participation in a community – including voting, participating in government and receiving state protection. Citizenship usually also involves obligations, such as the duty to pay taxes, or to fight in time of war, and notably has been, almost everywhere, territorial, and associated with states.

The legal concept of EU citizenship was formally introduced in 1993 by the Treaty of Maastricht, although it has earlier origins in the 1984 Fontainebleau European Council discussions on a ‘People’s Europe,’ and the 1974 EEC Paris summit.

EU citizenship now has formal constitutional status in EU law. EU citizenship is exceptional and noteworthy for granting citizenship, and associated rights, of a supranational community. In this way, it appears to move beyond the association of citizenship and statehood. Notably, however, it is not free-standing but derivative from existing national citizenship. Article 9 of the Treaty of European Union (TEU) provides ‘Every national of a Member State shall be a citizen of the Union. Citizenship of the Union shall be additional to and not replace national citizenship.’ EU citizenship is also addressed in Articles 20-24 of the Treaty on the Functioning of the European Union (TFEU). The citizens’ rights directive (2004/38/EC) spells out and gives further details of the ways in which EU citizens and their families may exercise rights of free movement and residence, and permitted restrictions on those rights on grounds of public policy, public security or public health.

EU citizens acquire a bundle of legal rights by virtue of their status. The majority of these rights are enjoyed by EU citizens who have exercised rights of free movement throughout the EU, but a limited number of rights may be relied on by EU citizens against their member state of nationality in the absence of cross-border movement.

In 2001, in the Grzelczyk case, the European Court of Justice (ECJ) held that EU citizenship was destined to be ‘the fundamental status of nationals of the Member States.’1 However, this was not a status embraced by ‘leave voters’ in the 2016 EU referendum, and European citizenship is sometimes seen as having a weak affective dimension in contrast to national citizenship. This is partly because of a perceived lack of both an EU identity and EU demos (or people). Indeed one view2 asserts the no-demos thesis, arguing there can be no effective democracy in the EU because the EU lacks a demos.

In contrast, supranationalists affirm the existence of a European demos and understand the EU as entailing a progressive transfer of loyalty from the states to the Union. However, a third, increasingly popular, view asserts that the EU is a community of peoples as well as of states – that Europe is a ‘demoi-cracy’ (a polity of multiple demoi or peoples) and should be evaluated as such (Nicolaidis 2012). These diverse views illustrate the varied and fluid approaches to EU citizenship, and of course have implications for the solidarity displayed for EU citizens of other member state nationalities.

A current challenge for EU citizenship is that of combatting extreme nationalist views, especially any which might surface in the May 2019 European Parliament elections. If anti-European parties win a significant minority of seats they might align tactically enabling them to, for example, prevent sanctions against Russia, block the EU’s international trade agenda or severely restrict migration. This might threaten the EU’s capacity to demonstrate resolve, cooperation and leadership, as well as its ability to protect its citizens (Dennison and Zerka 2019).

Notwithstanding these challenges, it should be remembered that EU citizenship is unique in being the only model in the world to bring together people of different nationalities through the legal concept of a supranational citizenship. This is a great achievement, although, undoubtedly, it has not reached its full potential.

Scotland’s Interests, Contribution and Influence

When the UK leaves the EU, if Brexit goes ahead, it will cease to be an EU member state. As a result of this, UK nationals will lose their EU citizenship, and non-UK EU citizens who wish to live/work in the UK will lose their EU-derived rights to do so. EU citizenship is derivative of member state nationality, and not a self-contained status enjoyed independently of it.

However, until the UK leaves, EU law continues to apply and should be enforced in the UK. But notably, although provisions on EU citizenship apply to the UK, the UK has opted out of most EU immigration law, including the Schengen Accords, which create a common European area and framework for visas and border control. At present, as a result of the UK’s EU/EEA (European Economic Area) membership, EU/EEA/Swiss nationals, and dependents, are exempted from the need for immigration leave. After five years’ continuous residence, they acquire a permanent right to reside in the UK under the EEA Regulations.3

As the law stands at present, immigration control and EU treaty negotiations are reserved matters for the UK government under the Scotland Act 1998. Therefore, absent further devolution of immigration policy, there is only limited scope for Scotland to obtain a differentiated settlement from the rest of the UK on EU citizenship. However, notably, in December 2016, the Scottish government published its proposals for a differentiated solution for Scotland, in its paper, ‘Scotland’s Place in Europe’,4 making a case that even in the event of a ‘hard Brexit’ in the rest of the UK, Scotland could retain its single market membership. Such a differentiated solution seems however to have been rejected by the UK government, and, in March 2017, the Scottish parliament voted in favour of holding a second independence referendum in Scotland within the next few years.

EU/EEA Citizens from Elsewhere in the EU Who Reside/Work in the UK

At present, there are about 3.5 million EU/EEA nationals in the UK who will have to use the UK’s ‘settlement scheme’[5] to remain in the UK beyond Brexit. About 223000 of those EU citizens live in Scotland.[6]

If a withdrawal agreement[7] is concluded between the UK and EU, EU nationals will be able to work and settle in the UK much as at present until 31 December 2020 (the end of the transition period foreseen in the draft withdrawal agreement, but possibly extendable). After that date, EU citizens entering the UK would need a work visa. EU citizens who will have been in the UK for five years or more by 31 December 2020 can apply for ‘settled status’.[8] However, EU citizens with settled status will lose that status – and their right to stay in Britain – if they leave the UK for more than five years. Notably, if the UK leaves without a deal, the Home Office has stated that the EU settlement scheme will still run. However, there would be some important changes, including that the cut-off date for arriving in the UK would be the Brexit date, not 31 December 2020.

The impact of Brexit on EU citizens in the UK also depends on the future relationship between the UK and EU. For example, if the UK joins the EEA, in a ‘Norway-style’ arrangement, free movement of persons would still continue under Part III of the EEA agreement. However, EU citizenship is not protected under the EEA, which could affect for instance residence rights for family members of the EU citizen (see for further elaboration the Ruiz Zambrano case of the ECJ[9]).

Specific Scottish Issues

The 2017 UK government white paper argued that an important UK strength is ‘our identity as one nation’.[10] Yet both before and since devolution, the UK’s four nations have developed distinct legal, cultural and social identities, and of course both Scotland and Northern Ireland voted remain in the 2016 referendum, evidencing perhaps a greater embrace of EU identity and citizenship.

Differences are especially evident in the field of immigration. EU citizens make a vital contribution to Scotland and to its economy, society and culture, and ending free movement of people will have a negative impact on Scotland’s wider economy and society as a whole.[11] Indeed, EU migration helped reverse the trend of a declining population that was a key concern in the early years of the Scottish parliament. EU citizens have become a crucial part of Scotland’s labour market, and EU workers have been crucial to many sectors, ranging from agricultural workers, through hospitality, to skilled engineers and scientists in high-growth sectors.[12]

The UK government immigration white paper,[13] released in December 2018, sets out a post-Brexit immigration vision. It proposes visas for EU citizens after Brexit and future post-Brexit EU migrants would need to meet the £30000 immigration threshold for a Tier 2 Visa application. Such restrictions would considerably cut international migration to Scotland, with far-reaching consequences for the economy. For example, three-quarters of social care services in Scotland currently have vacancies, according to Scottish Care, with 44% relying on the EU as a recruitment source. If these new immigration targets were to be implemented, it is unlikely that such vacancies would be filled.[14]

It has been suggested that, were Scotland given direct control over immigration and asylum, this could provide a solution, forestalling post-Brexit drastic reductions in immigration. Such control could take the form of ‘regional visas’ or the special use of Scottish national insurance numbers. The City of London Corporation published a report on regional visas, highlighting that such systems exist elsewhere.[15] However, the UK government has stated that it would not devolve immigration policy to Scotland.[16]

Notably and ironically, EU citizens were unable to vote in the 2016 EU referendum, as this franchise was determined nationally, as relating to the Westminster parliament franchise. In contrast, however, EU citizens have the right to vote in the Scottish parliament and local government elections, which are devolved matters under s.3 of the Scotland Act 2016, and the Scottish government has said it will ‘protect the electoral franchise for EU citizens in Scotland.’ The Scottish parliament could also decide to continue the current status of EU citizens regarding higher education (not charging fees, for example). Furthermore, on 5 April 2019, the Scottish government launched its ‘Stay in Scotland’ campaign, a package of support to help EU citizens stay in Scotland, building on earlier support and advice it had given to EU citizens in Scotland.[17]

However, whatever steps are taken, undeniably, there are already signs of a ‘hostile environment’ for EU citizens in the UK, rendering the UK, and by default Scotland, a less attractive location for EU citizens.[18]

UK Nationals Resident in Other EU States Post-Brexit

There are currently about 1.3 million UK citizens[19] in other EU member states. Post Brexit, they will lose their EU citizenship (unless they have another EU nationality) and will be treated as third-country nationals, unless the UK agrees their status as part of the withdrawal agreement.

The withdrawal agreement guarantees British citizens lawfully resident in EU member states roughly the same rights as they have at present. They can continue to live, work and travel (although these rights would cease after a leave of absence of more than five years). The same would apply to British citizens moving to the EU during the transition period, but not to British citizens moving after any transition has ended. It is unclear whether British citizens living in EU countries will be able to move freely to other EU countries after Brexit, which would be dealt with in the negotiations on the UK’s future relationship with the EU.

Under a ‘no-deal’ Brexit, British citizens would be in a less favourable situation. In July 2018, the EU stated that it would be member states, and not the EU, which decided what rights to grant British citizens in their states, so the level of disruption depends on what those states do.[20] A recently leaked European Commission paper[21] revealed many different approaches, levels of preparedness and openness from the EU27, Iceland, Norway, Lichtenstein and Switzerland, in the event of a no-deal Brexit. The most generous countries – Denmark, Norway, Cyprus, Austria, Slovakia, Italy, Bulgaria, Malta, Croatia and Romania – will offer permanent national ‘regularisation’ to British citizens. Switzerland has concluded a bilateral agreement with the UK preserving the rights of citizens covering any scenario. UK nationals already have an automatic right to reside in Ireland under the common travel area that covers the UK, Ireland, the Isle of Man and the Channel Islands. The British government’s attitude to the 3.3 million EU nationals living in the UK is said to be a key factor in how some member states will treat UK citizens.

Additionally, the EU long-term residents directive (directive 2003/109/EC) grants long-term resident status to third-country nationals who have resided legally and continuously within EU member states for five years. However, applicants must provide evidence of stable and regular resources, without recourse to social assistance schemes, and meet certain integration conditions, such as language requirements. This status is less likely to be available to UK residents who exercised free movement rights via lower-paid professions, who are less able to provide evidence of stable and regular resources. Long-term residence status might also have an impact on family life, as it provides far stricter family reunion rules than at present. Those UK citizens who wished to remain working in an EU state, but did not yet benefit from long-term resident status, could face quotas and discrimination against them as non-EU citizens. Following Brexit, the EU could impose visa requirements on UK citizens. Although the EU does not currently impose visa requirements on wealthy third-country nationals such as the USA, it expects reciprocity, so to benefit from visa waiver, the UK should exempt EU citizens from visa requirements. Under the EU’s returns directive (directive 2008/115/EC) those British citizens who had no right to stay in the EU could be expelled, by force if necessary, and could be detained pending removal.

Therefore, not only are UK nationals elsewhere in the EU, in some cases, in danger of losing residence rights in other EU states, but, even if they can continue to reside, on loss of EU citizenship they may well suffer loss of pension and other benefits which they currently enjoy in EU law. This will be in great contrast to the present situation, whereby generations of UK citizens have never known the restrictions that visa requirements place on travel, either from a business or personal perspective. If UK citizens are no longer able to exercise these legal rights, it will not only establish physical barriers, but it will inhibit engagement with the countries and peoples of the EU.[22]

UK Nationals Who Have Not Exercised Free Movement Rights

It is not necessary to migrate to another member state to benefit from EU citizenship. All UK nationals are EU citizens by virtue of being a citizen of a member state of the EU (ie the UK). This will be lost when the UK leaves the EU. Indeed, in the absence of further negotiated rights, UK nationals could be in a worse situation than some other third-country nationals for whom there exist non-discrimination clauses in EU agreements (eg Russia, Morocco).

What does it mean to deprive UK nationals of EU citizenship? It is a very valuable benefit. The European Movement UK has argued that Brexit risks being the first time that the whole population of a modern state loses citizenship without that nation being involved in armed conflict or ceasing to exist. Human rights protections and prohibitions exist if a person is deprived of national citizenship – indeed in some situations international law prohibits the deprivation of national citizenship. Article 15 of the Universal Declaration of Human Rights states that everyone has the right to a nationality and no one shall be arbitrarily deprived of his or her nationality. But is deprivation of EU citizenship to be likened to loss of national citizenship or to government expropriation of a valuable property? If the latter, might the government be financially liable for this loss? Certainly, UK nationals risk losing the following rights as a result of losing EU citizenship:

  1. Rights of free movement, residence and the right to work and study in other EU states.
  2. Rights to vote/stand for the European Parliament will be lost, as well as the right to vote/stand in European Parliament and local elections while resident in other EU states.
  3. Rights to do business with other EU states without barriers, even if not personally leaving the UK (eg selling insurance/financial services over the phone or online to another EU state from the UK).
  4. Many other rights which accrue from EU membership, such as workers’ rights (ie equal pay for work of equal value for men and women, working time measures and so on). Although the UK government has stated that it will initially ensure the status of these in UK law through the EU Withdrawal Act 2018, it has also said that it will decide whether to repeal or amend them. Due to parliamentary sovereignty, it could repeal whichever it chose. There would be no guarantee (of the sort that currently exists through EU membership) that they will be maintained.

Associate Citizenship?

In December 2016, European Parliament Brexit coordinator, Guy Verhofstadt, proposed a form of EU ‘associate citizenship’ that would allow individuals to ‘keep free movement to live and work across the EU, as well as a vote in European Parliament elections’.[24] This idea was supported by Luxembourg MEP Charles Goerens, who proposed associate citizenship on payment of a membership fee – in return for some rights currently guaranteed by Articles 21-22 of the Treaty on the Functioning of the EU. As Goerens recognised, this would need EU treaty amendment before it could become reality.

But it is not very clear what associate European citizenship would actually entail, and the extent to which it would differ from EU citizenship itself, or even be open to third-country nationals with long-term residence status. What might be the position of Scotland? Nicola Sturgeon stated that she ‘would not rule out associate citizenship of the EU for Scotland’ (McDonald 2016). However, in the event, only the ECJ could provide a clear and authoritative answer on this matter. Several attempts have been made to bring the matter before the Luxembourg court – for example in litigation commenced in the Netherlands, but the Dutch courts have failed to make any reference to Luxembourg and so the matter has not been settled, nor featured in the withdrawal negotiations conducted between the EU and UK government.

Conclusion

Brexit is built around a paradox concerning citizenship and identity. In voting to leave the EU, many voters were rejecting not only the EU, but also the concept of an EU citizenship and identity. Yet the UK, as a union and devolved state, itself lacks a clear and fixed identity – it is as much a demoi-cracy as the EU.

For some time, many Scots have been relatively comfortable with multiple identities (McCrone 2002), and able to understand themselves as simultaneously Scottish (and/or eg Glaswegian or Aberdonian), British (and/or Protestant, Catholic, Jewish, Muslim, Buddhist, Atheist, etc), and European – thus acknowledging an inclusive and outward-looking identity. Of course, many in England similarly embraced multiple identities. Yet, also clearly visible has been the rise of a distinctly English nationalism less open to multiple identities and multiculturalism, and specifically exclusive of a European identity. As Anthony Barnett writes: ‘It was England’s Brexit’ (2017).

Because of this, the EU referendum has presented a threat to harmonious social relations, requiring those who found no conflict in conceiving of themselves as simultaneously Scottish/British and European to opt between British and European, thus implying multiple identity is not possible.

But what then does it mean to be British? Indeed, this question provokes some irony in that the majority English choice to leave the EU, and assert a supposedly independent global presence, has raised the crucial question of what Britishness might mean in the 21st century. In point of fact, Britishness has for some time been in decline. As a source of identity, it appeared to diminish in Scotland from the 1980s (Bechhofer and McCrone 2010), while devolution dislocated the traditional association of Britishness with the unitary state. A growth in identifying as European of course also played its part.

British identity is of course a subject for another article, but it should be noted that Brexit does not settle the identity question, but instead shifts the focus from one contested form of citizenship and identity (EU) to another (British). Seen in this light, Brexit has imposed a restriction on Scotland – confining it within the UK union and a British identity, rather than within the EU and European identity – when many Scots were comfortable with both. And by so doing, in its rejection of an EU identity, Brexit presents a clear challenge for Scotland – how may it achieve the immigration it needs, if it is to have no say in immigration policy?

Perhaps, most significantly, Brexit has revealed the frailty and tenuity of EU citizenship. For all the talk of demoi-cracy, and of peoples, it has proved very easy for a state (the UK) to remove this citizenship from a group of peoples, even against their will, when they voted against Brexit, as did the majority of Scottish voters. The ECJ’s reference in Grzelczyk to EU citizenship as a ‘fundamental status’ has turned out to be sadly premature.

References

Barnett A (2017) The Lure of Greatness: England’s Brexit and America’s Trump (Unbound Books)

Bechhofer, F and McCrone, D (2010) ‘Choosing national identity.’ Sociological Research Online, 15(3), 1–13

Dennison and Zerka (2019), The 2019 European election: how anti-europeans plan to wreck Europe and what can be done to stop it, European Council On Foreign Relations, February 2019

McCrone, D (2002) ‘Who do you say you are? Making sense of national identities in modern Britain’. Ethnicities, 2(3), 301–320

McDonald, H (2016) ‘Nicola Sturgeon will not rule out “associate citizenship” of EU for Scotland’, The Guardian, 28 November 2016, https://www.theguardian.com/politics/2016/nov/28/nicola-sturgeon-will-not-rule-out-associate-citizenship-of-eu-for-scotland

Nicolaidis K (2012) ‘The idea of European Demoicracy’ in Dickson and Eleftheriaids, Philosophical Foundations of European Union Law (OUP, 2012)

[1] Case C-184/99 Grzelczyk v Centre public d’aide sociale d’Ottignies-Louvain-la-Neuve [2001] ECR-458
[2] See for example German Constitutional Court, Maastricht judgement of 12 Oct 1993
[3] Immigration Act 1988 s.2.7, subject to s.2(2) ECA 1972 and Immigration (EEA) Regs 2006 reg 15 4 Scotland’s Place in Europe, available at: http://www.gov.scot/Resource/0051/00512073.pdf
[5] Further details of the UK Government’s ‘Settled Status’ scheme are available at https://www.gov.uk/settled-status-eu-citizens-families
[6] See Office For National Statistics, Migration Statistics Quarterly Report: February 2019
[7] Draft Agreement on the withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union, 14 November 2018 TF50 (2018).
[8] This scheme will be now be free of charge for all applications following a policy change by the UK government in January 2019.
[9] In ECJ case C‑34/09 Ruiz Zambrano Belgium was required to grant a work permit to the 3rd country national carer of an EU Citizen who had yet to exercise his right of free movement throughout the EU, so as not to deprive the EU Citizen of the genuine enjoyment of the substance of his rights (the family might otherwise have had to leave the EU altogether).
[10] The United Kingdom’s exit from, and new partnership with, the European Union, CM 9417, Foreword.
[11] See further, Protecting the rights of EU Citizens: Scottish Government Response to UK Government Citizens’ Rights Paper, 27 July 2017.
[12] See further, Scottish Parliament Culture, Tourism, Europe and External Relations Committee: EU Migration and EU Citizens’ Rights 3rd Report, 2017.
[13] HM Government: The UK’s future skills-based immigration system, December 2018, Cm 9722.
[14] See further: UK immigration policy after leaving the EU: impacts on Scotland’s economy, population and society, report by independent Expert Advisory Group on Migration and Population, for Scottish Government, 28 February 2019.
[15] See further: Options for Differentiating the UK’s Immigration System, report Scottish Parliament Culture, Tourism, Europe and External Affairs Committee, 2017; also Dr Eve Hepburn, Immigration policy – the countdown to Brexit (SPICe Briefing, 24 January 2019).
[16] Eg Robert Goodwill, UK Minister of State for Immigration, to the Scottish Affairs Committee, ruled out devolving immigration policy: ‘Applying different immigration rules to different parts of the UK would complicate the immigration system, harming its integrity, and cause difficulties for employers with a presence in more than one part of the UK.’
[17] Further details of the Stay in Scotland campaign are available at https://www.gov.scot/news/stay-in-scotland/.
[18] For some perceptions from EU nationals in the UK see ‘The ‘Hostile Environment’ (and why the3million opposes settled status)’ https://www.the3million.org.uk/hostile-environment
[19] See ‘Brits abroad: how many people from the UK live in other EU countries?’ available on the Full Fact website at https://fullfact.org/europe/how-many-uk-citizens-live-other-eu-countries/
[20] Reconfirmed by Michel Barnier in a letter to Brexit Secretary Stephen Barclay on 25 March 2019, viewable at https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/790471/Ares_2019_2069376_-_MB_-_Barclay.pdf. The only exception is for the coordination of social security measures for a limited time.
[21] See further on this: https://www.theguardian.com/politics/2019/apr/04/leaked-file-shows-stark-contrasts-for-britons-in-eu-after-no-deal-brexit
[22] See further, Scottish Parliament Culture, Tourism, Europe and External Relations Committee: EU Migration and EU Citizens’ Rights 3rd Report, 2017. [24] See further eg, ‘European Parliament’s chief Brexit negotiator demands Theresa May back Britons who want to keep EU citizenship’, The Independent, 8 April 2017.

Anthony Salamone | Scottish Centre on European Relations

Introduction

The EU is comprised of a fabric of states and peoples with diverse perspective and interests. (See PDF)

Pontus Odmalm | University of Edinburgh

Introduction

The 2019 European Parliament elections are likely to be a stress-test for EU institutions and party alliances, as well as for domestic-level politics. Two issues stand out in particular: first, the potential for populist radical right parties (PRR) to exploit the second-order status of these elections and, second, the indecisiveness of mainstream parties to come up with unified (and possibly consistent) counter-narratives. The PRR traditionally played minor roles during national elections, prioritising instead local and supranational contests. Around the early 2000s, however, this type of party stopped being a mere irritant and now constitutes a serious challenge to conventional party families. Scotland has (so far) been exempt from any significant PRR ‘threat’ to the status quo. But a lack of supply does not necessarily mean there is no demand for these parties or the solutions they offer.

This chapter initially discusses the changing nature of the PRR, and how the 2019 elections fit with their long-term objectives. It then outlines particular obstacles the political mainstream faces when it engages with parties who do not play by conventional rules. Finally, the chapter reflects on the Scottish ‘exception’ and whether it can be sustained in the long term.

The populist radical right (PRR) has become a fixture across the EU. Often referred to as a distinct ‘family’, the PRR umbrella nevertheless includes parties with a wide range of different backgrounds and ideologies. The anti-immigration stance is a common denominator, but also obscures the variety of challengers that exist. The United Kingdom Independence Party (UKIP), for example, is associated with a hard form of euroscepticism coupled with chauvinistic attitudes to migrant integration. Yet it started out as a populist actor aiming to rid the British economy of excessive state and supra-state interference. The Dutch Party for Freedom (Partij voor de Vrijheid, PVV), on the other hand, journeyed from a conservative-liberal position to one characterised by nationalism and populism. On the other side of the spectrum, the Sweden Democrats (Sverigedemokraterna, SD) has been distancing itself from a far-right and white nationalist past (some might even say rewriting its party history).

Their electoral feats echo these makeovers, but also point to variation depending on the level contested. UKIP peaked in the 2015 UK general election (with almost 13% of the vote), having achieved single-figure results previously, only to then implode following the 2017 election. PVV’s performance, conversely, is remarkably volatile and results vary from one election to the next. The most consistent of the three is perhaps the Sweden Democrats, which trebled its support since first entering parliament in 2006 (from 5.7% to 17.5%). This shift in voters’ preferences has taken place within the broader context of dwindling support for mainstream parties and a gradual move towards contesting so-called value issues. These developments put the political mainstream in a precarious situation, since it has to compete on a variety of fronts and on a variety of new issues (see various contributions in Odmalm and Hepburn 2017). That said, if only national-level performances are taken into account, then it potentially underestimates the PRR’s greater appeal. It might also overlook long-term objectives to mainstream party images and key electoral messages. This year’s European Parliament elections might therefore be an important path-divider for how we conceptualise and understand the PRR party family. Scotland is many ways an outlier in comparative perspective. It largely lacks a populist – as well as radical right – challenger, and its population is remarkably sedate in terms of the immigration ‘issue’. But whether this continues to be the case is a different question (Ford and Goodwin 2014).

This chapter discusses the evolving nature of the PRR, and how its metamorphosis presents challenges to the centre-right as well as to the centre-left. In particular, it considers how to reach internal consensus regarding the type of issue immigration constitutes, and which position to adopt in light of a seemingly unstoppable political force. It concludes by suggesting that it might be time to bring back ideology to the political conversation. That is, the electorate benefits from knowing why parties want what they want and not just what they want.

Evolving Nature of the Populist Radical Right

A majority of western European party systems were characterised by their ‘frozen’ nature up until the late-1970s. Conflict took place on a material left-right axis, where parties lined up according to their views on state involvement in the economy. Consequently, it meant fairly stable and predictable positions which ran along a socialist-capitalist divide. The available space for so-called non-material issues was minimal. Equally small was the space for anti-immigration challengers to exploit. The latter is partly explained by the pan-European decision to halt labour migration, which followed the 1973 oil crisis. Patterns would later shift – towards family-reunification and asylum-type migration – but one should not forget the different context at the time. Flows, for example, were relatively low (ca 650000 asylum applications across the EU in 1970-1974, compared to 650000 in 2017 alone), and globalisation had not quite kicked off. Taken together, then, questions of immigration control and integration management were not salient enough for either parties or voters (see various contributions in Weinar et al 2019).

However, the political environment had become more favourable to the PRR by the early 2000s. Several developments are important to note. Following 9/11, immigration went from a labour market and humanitarian concern to one increasingly characterised by securitisation. Levels of undocumented migration were on the rise, and numerous EU states were turning away from multicultural solutions to migrant integration. Furthermore, public opinion was heading in a restrictive and assimilationist direction. As such, there were ample opportunities for PRR parties to grow. But while all these developments were under way, the electoral successes of the PRR were often varied and limited to single digits. This mismatch is often credited to the cordon sanitaire mainstream parties set up to distance themselves from radical competitors. Several PRR parties also pushed reactionary positions on gender equality and national identity, which ran counter to mainstream narratives. In other words, the PRR struggled to break free from its pariah and niche status (see various contributions in Mudde 2017).

What can be observed over the past fifteen to twenty years is consequently a process of mainstreaming – on the one hand, of restrictive and assimilationist positions, and on the other, by the PRR itself. The latter’s key aim of reducing numbers is taking root across the EU, particularly among Conservative and Christian Democratic parties. In the Netherlands, both the People’s Party for Freedom and Democracy (VVD) and the Christian Democratic Appeal (CDA) emphasise a need for social cohesion and the dangers posed to Dutch society by taking on too many migrants and refugees who do not share fundamental values. A similar, albeit delayed, development took place in the 2017 Swedish election. The centre-right (except for the Centre Party) adopted a hard-line approach to asylum and family reunification migration. Given the asylum peak, which preceded the election, it was perhaps expected but they also tightened up their rhetoric on integration. A greater responsibility to secure work, accept Swedish values and become part of the community was placed on migrants. But the centre-left, especially the Social Democrats, changed its rhetoric as well, particularly regarding the impact of migrant labour. By providing a cheap (and sometimes illicit) work force, migrants were said to undercut collectively-bargained wage levels and working conditions. At the same time, several PRR parties realised they had to tone down references to biological racism and cover up active (or dormant) links to the far-right in order to broaden their appeal.

UKIP, PVV and SD are indicative examples of this transformation. Immigration is still understood as a ‘threat’, but in relation to welfare states, labour markets, and progressive western values rather than to supposed ‘racial purity’. Protecting what is ‘ours’ from the undeserving ‘other’ is therefore increasingly important. This narrative poses two distinct challenges. First, the categories perceived as undeserving change over time as well as between contexts. But it is perhaps safe to say ‘Muslims’ and ‘asylum seekers’ constitute particular buzzwords for most of the contemporary PRR. These groups can experience challenges with integration (economic as well as social) and are often subject to discrimination (explicit or implicit), which means their entry to the labour market can be delayed or obstructed. And when these chauvinist frames are combined with narratives of constituting a threat to liberal lifestyles, they consequently act as potent rallying calls for a cause which only the PRR is willing and able to defend. That said, there is perhaps a gap between the mainstreaming process at the party level and that of the rank-and-file. The latter typically lags behind any elite shifts and is often characterised by overtly racialised views.

Second, these discursive shifts also mean that contestation has moved closer and closer to the natural habitat of the political mainstream. Questions concerning immigration and integration are no longer understood as distinct policy areas, which can be kept separate from other domains. This is arguably a key feat of the PRR, as it forces mainstream parties to engage with issues outside their comfort zones and where there are ample opportunities to get it electorally wrong.

Political Mainstream and Immigration

Once immigration and integration become politicised, parties must respond in one way or the other. While the PRR provides a consistent narrative on the negative impacts of ‘mass immigration’, mainstream parties tend to limp from one strategy to the next. One expects the political mainstream to, perhaps, offer a counter-narrative to the narrative of impending societal collapse or draining of resources. However, mainstream parties either try to outdo the PRR (the UK and the Netherlands) or downplay immigration as an electoral issue (Sweden).

An important part of the explanation lies in the cross-cutting nature of immigration, and the challenges involved when trying to pin it down to any one policy area. As competition becomes increasingly multi-dimensional, it consequently presents mainstream parties with a novel set of challenges, which are crystallised once immigration and integration are factored in. For the centre-right, they bring long-standing tensions regarding the role of the state to the fore. In particular, whether (or not) immigration control and asylum processing are better handled by state or non-state actors. The United Kingdom, in particular, has struggled to get the balance right. Border control and residence checks have been partially outsourced over the last ten years. However, following a series of mishaps – in particular the failed Operations Vaken, Mayapple and Nexus – the management of borders was brought back to the state and into the realm of the Home Office.

At the same time, integration has moved away from being a concern related to labour markets to one associated with social cohesion and subscribing to host society values – which requires an active and involved state. The centre-left struggles with dilemmas of its own, particularly regarding labour migration, which is typically understood as a capitalist tool to suppress wages and split the indigenous working class. The state, in this approach, should therefore adopt a more engaged role in order to not create chaos in the labour market. Although asylum and family reunification tend to play well with centre-left ambitions of internationalism and humanitarianism, the 2015-2016 spike in numbers significantly tested its commitment to these ideals (Odmalm and Bale 2015). Subsequent general elections (in 2017: Britain and the Netherlands; and in 2018: Sweden) highlighted a new normal in terms of the positions mainstream parties adopt.

Several centre-left and centre-right parties have moved in a restrictive and more demanding direction since then, and often echo the PRR’s rhetoric when justifying these shifts. The PRR is conversely better placed to engage with questions of immigration and integration as it already holds authoritarian and state-centric positions, and is largely unaffected by any conflicting views regarding the appropriate role of the state. However, it is important to note the different contexts in eastern and central Europe. The PRR in, for example, Poland and Hungary, is not only more authoritarian but also more draconian compared to many of its western European counterparts. Recent stances by Viktor Orbán and Fidesz (on academic freedom and electoral competition) and by Law and Justice (on women’s and LGBT rights) suggest the threat comes from three different directions – from the migrant ‘other’, as well as the internal (minorities) and supranational ones (the EU). These stances go against the founding principles of the EU, which has meant increased tension within the European Parliament’s centre-right party family, the European People’s Party (EPP), and within the European Parliament itself (Pytlas 2016).

These shifts and comparative differences further underscore the blurred edges between ‘mainstream’ and ‘PRR’ parties. They also signal important changes in the way parties compete with each other and for the type of issues they consider to be salient. On the one hand, the drift rightwards means the available choice is often between ‘restrictive’ and ‘more restrictive’ positions, with few alternatives in-between. On the other, traditional questions concerning the redistribution of resources have become superseded by issues of national identity, societal values and security, all of which are challenging to articulate concrete policy solutions to.

These developments put mainstream parties in a particularly difficult position. They must engage with questions of high importance to the electorate, but in a way that does not (further) legitimate the PRR’s narrative. They must also grapple with issues that strike to the very core of who they are as a party. Taken together, it points to a new political environment in which old proposals and solutions no longer suffice. In particular, focusing on ‘deliverables’ and ‘competence’ might not resonate with voters who demand ‘vision’ and increasingly distrust the political mainstream.

PRR and the 2019 European Parliament Elections

This understanding becomes even more prevalent once the EU is framed as a faceless and unaccountable entity which is far removed from everyday chores. But the European Parliament elections are likely part of the longer game the PRR will play. It allows them to test the waters in terms of acceptability, framing and blame allocation. In other words, their aim could well be set on future general elections, and the European Parliament contest serves as a dry-run for those campaigns. Given their increased levels of grassroots activity, as well as having a significant presence on social media, one should expect amplified online mobilisation dominated by post-truth and diversion tactics. By taking advantage of the d’Hondt system of proportional representation, the PRR might also be able to consolidate its influence across the EU. Thereby, ample opportunities will arise to challenge and obstruct the workings of the European Parliament.

The stakes are therefore high and mainstream parties could benefit from considering the question of whether it is time to bring back ideology to the political game. Vision for the good society has taken a back seat in recent elections. The consequence is an ideological wilderness, where votes struggle to distinguish one party from the next. Yet most PRR parties cannot rely on a similar track record of accomplishment that the mainstream can. However, they compensate for this shortcoming by having clear ideas of the type of society they want – namely, one characterised by (ethnic) homogeneity, strong national sentiments and a welfare state for the deserving.

If the political mainstream is to engage with these issues, it has to perform a delicate balancing act between communicating what policies it has in mind, and why it thinks these are necessary in the first place. Both messages require an ideological steer in order to make sense to the electorate. Yet it also involves a process of careful reflection. Mainstream parties need to figure out what type of party they are and then agree on its direction. Second, given the mixed success of adopting a restrictive stance on immigration and an assimilationist approaches to integration, it is worth thinking about alternative strategies. One of these is having a clearer grasp of the policies and regulations in place, particularly regarding labour mobility and migrants’ access to welfare services. This is particularly important in an era characterised by disinformation and so-called ‘fake news’.

Conclusion

The 2019 European Parliament elections are likely to see more intense campaigning and a heightened sense of urgency, particularly by the PRR, which have identified it as an important venue for capturing the disaffected and disillusioned voter. But there is also reason to believe the political mainstream is increasing its European emphasis – including with the goal of limiting or blocking any electoral success of the PRR. The Brexit referendum and the subsequent political chaos in the UK led eurosceptic and PRR parties to tone down their rhetoric on potentially leaving the EU, and also appears linked to rising support for the EU in several member states. Yet Brexit and the profile and impact of the PRR do pose big challenges to the mainstream for how they conceive of, communicate and focus their own European goals and politics. This May’s elections are therefore an important path-divider in contemporary European politics and an opportunity for mainstream parties to reflect on who they are and the solutions they offer the electorate.

Although PRR parties are present in several member states, Scotland remains largely untouched by any challengers to the political status quo – Scotland has one UKIP MEP from the 2014 elections (now defected to the Brexit party), but whether either of the two Brexit parties will regain this seat is open to doubt. Furthermore, the PRR is not present in either the Scottish parliament or in any of the local councils. The fact that immigration policy is reserved to the UK level, that Scottish politics is characterised by a civic understanding of nationalism and it has a strong(er) attachment to Europe are often put forward to explain the Scottish exception. That said, both the EU and independence referendums (with 38% voting ‘leave’, and 45% voting ‘yes’ – and a third of those ‘yes’ voters supporting ‘leave’) suggest a few caveats to this narrative (What Scotland Thinks 2014). There might be some latent demand for a party with a stronger anti-EU, anti-immigration rhetoric or possibly for one with both anti-EU and anti-Union rhetoric. If such a populist, right-wing party emerged, it could pose challenges to existing ones, perhaps through pushing a harsher line on immigration and integration – especially if none of the established parties advocates a more hard-line approach, although effectively the current UK Conservative government does do that.

However, for a PRR-type party to succeed in ways similar to their results in some other EU countries, it would first need to overhaul current understandings of belonging to the ‘imagined’ Scottish community, which are based on residence rather than heritage. Such a party would also need to identify a corrupt regional elite which is then pitted against the ‘pure’ people. But in 2009, UKIP only polled 5% of the vote in Scotland in the European Parliament elections. While this increased to just over 10% in 2014, some blamed that on the SNP treating the last (sixth) MEP seat as a contest between the SNP and UKIP. Broadly, the Scottish public appear more at ease with managing multiple identities – of being Scottish and/or British and/or European. In contrast, in many ways Brexit has exposed difficult and divisive questions of English identity and English nationalism. By also taking Scotland away from the EU and forcing a choice in some sense between British and European identities, it has created a new debate and challenge to what Britishness means (as discussed in chapter 3 of this report).

Nonetheless (as argued in chapter 15 of this report), it is hard to imagine Scotland is automatically immune to such pressures, not least having seen developments in recent years in a number of Nordic EU member states, the Netherlands and Germany. But political leadership is one key part of the answer. On migration and integration, Scotland has overall had constructive leadership and so, for now, does not see the sort of populism prevalent in England and in several EU member states. The European Parliament elections will tell us much about where populist parties may or may not go next – in the EU and in the UK and Scotland.

References

Ford, R and Goodwin, M (2014) Revolt on the Right: Explaining Support for the Radical Right in Britain, London: Routledge

Mudde, C (2017) The Populist Radical Right: A Reader, London: Routledge

Odmalm, P and Bale, T (2015) ‘Immigration into the Mainstream: Conflicting Ideological Streams, Strategic Reasoning and Party Competition’, Acta Politica, 50(4): 365–378

Odmalm, P and Hepburn, E (eds) (2017) The European Mainstream and the Populist Radical Right, London: Routledge

Pytlas, B (2016) Radical Right Parties in Central and Eastern Europe, London: Routledge

Weinar, A, Bonjour, S and Zhyznomirska, L (2019) (eds) The Routledge Handbook of the Politics of Migration in Europe, London: Routledge

What Scotland Thinks (2014) ‘Do You Support or Oppose Stricter Controls on Immigration?’, 12 May 2014, http://whatscotlandthinks.org/questions/do-you-support-or-oppose-stricter-controls-on-immigration

Michael Keating | Centre on Constitutional Change

Scotland and Europe

The relationship between the Anglo-Scottish and the European unions was first broached in the early 1970s, on the UK’s accession to the European Communities. The minority report to the Kilbrandon Commission on the Constitution argued that EEC membership would leave little scope for legislative devolution within the United Kingdom (Crowther-Hunt and Peacock 1973). Jim Sillars’ Scottish Labour Party favoured as much self-government as would allow Scottish direct representation in the EEC’s decision-making bodies, which soon became ‘independence-in-Europe’.

When devolution finally came about at the end of the last century, the European dimension was incorporated, as the new institutions were obliged to act within European law. The European framework then allowed a more permissive domestic settlement than otherwise would have been possible. The UK internal market was secured through the EU single market and externalities and overspills between UK and Scottish policies in matters such as environment policy and agriculture reduced. Provision was also made for them to influence European policy, notably via the Joint Ministerial Committee (Europe).

Subsequently, there were two perspectives on Europe. The Labour-Liberal Democrat coalition invested in the Europe of the Regions movement, including the Committee of the Regions and the Regions with Legislative Powers. This movement peaked before the convention on the future of Europe, but achieved little in the Lisbon Treaty and has since atrophied. The other perspective is independence-in-Europe, pursued by the SNP after its conversion to Europe in the mid-1980s, and the Greens. This was the proposal presented in the independence referendum of 2014, sparking a debate over whether and under what conditions an independent Scotland could be a full member state. Unionists insisted that membership would be, at best, very difficult. The Yes side warned that, without independence, Scotland could be taken out of Europe against its will. In the event, it was the latter that occurred (unless Brexit is halted at this late stage).

Scottish Opinion and Europe

For the SNP and the Greens, independence within the EU was a logical choice. EU membership would retain the single market with the rest of the UK as well as the EU, and keep open the border with England and Northern Ireland. There would be regulatory harmonisation. Yet the SNP never really spelled out what kind of Europe they favoured. They tended towards an intergovernmental EU, with strong safeguards for national sovereignty, rather than the more federal or supranational vision. At one point, the euro seemed the answer to the vexed currency question, but this was dropped with the onset of the euro crisis. The plans that were finally set out in the independence white paper envisaged joining the EU on exactly the same terms as the UK, including the opt-outs on the euro, the Schengen free travel area and justice and home affairs. Scotland would also continue to use the pound sterling. All this would have left Scotland in the shadow of the UK, rather than staking out its own position in Europe.

Another difficulty for the independence movement is that, while the connection between independence and Europe was logical, it largely escaped the voters. Analysis of the Scottish Social Attitudes Survey I carried out in the mid-2000s showed no connection between support for independence and for Europe. What it did show was a strong relationship between support for more devolution and moderately pro-European sentiment, suggesting that voters were attracted by post-sovereigntist ideas of divided authority and multilevel government (Keating 2009). The British Election Study similarly found no correlation between voting for independence in 2014 and voting remain in 2016 (Prosser and Fieldhouse 2017).

There was, of course, a strong overall majority in Scotland for ‘remain’ and remain majorities among both Yes and No voters from 2014, while England and Wales voted ‘leave’. This has allowed the SNP to claim a mandate for another independence referendum, given that they had said in advance of the 2016 Scottish election that they would regard such an outcome as a material change in circumstances legitimating putting the question again.

Independence Again?

There were three main obstacles to this. First, the UK government and parliament would have to agree to a referendum, as it had done for 2014; the government flatly refused. Second, if Scotland were independent within the EU and the rest of the UK outside the EU, there would be a hard border, negating the central logic of the independence-in-Europe strategy. Third, the Brexit referendum result had not given a boost to the independence cause. Support remained around 45%, the same as in 2014. Indeed, almost a third of SNP voters had chosen leave. The snap UK general election of 2017 dealt a fatal blow to the idea of an independence referendum before Brexit, as the SNP lost a substantial number of voters (mostly pro-Brexit) to the Conservatives. Although the Scottish parliament voted in favour of a referendum, this was not immediately followed up.

Yet, while support for independence had stalled around 45%, there were changes beneath the surface. As the SNP lost its pro-Brexit voters to the Conservatives, it became a more unambiguously pro-European party. The Scottish Conservatives, whose leaders had been largely pro-remain, now had to deal with a largely pro-leave constituency. Labour in Scotland, whose voters had divided in 2016 in much the same way as the SNP, had to accommodate a remain majority and a substantial leave minority, just as they had to in England and Wales. There is also evidence that, for the first time, support for independence and for Europe are beginning to align, although they are still far from coinciding (Montagu 2019). As Labour’s pro-independence voters have largely migrated to the SNP, the various movements have cancelled each other out and there is as yet no majority for independence-in-Europe. Eurosceptics in the SNP are less vocal than in the aftermath of the 2016 referendum and the options have clarified.

It is significant that leading leave voices within the SNP, such as Jim Sillars and Alex Neil, favour the European Economic Area (EEA), which would be regarded as europhile in England. The EEA also offers the advantage that Scotland would be outwith the common agricultural policy and the common fisheries policy, a symbolically (if not substantively) important issue in Scotland. The EEA might be a permanent option or a short-term one, pending a decision to rejoin the EU. The idea of EEA membership for the UK has been heavily criticised, mainly because it requires acceptance of single market policies without a say in making them. It would be difficult also for the EEA, as it would unbalance the area and introduce the toxic politics of Brexit into a zone in which the issue has mostly been successfully depoliticised. Norwegians have just learnt to live with ‘fax democracy’. EEA is essentially an option for small states which will never be big players, but seek to use soft power and influence. Scotland, with a less rancorous debate over Europe, a smaller size and a social model closer to the EFTA states, would be less disruptive of EFTA and the EEA than would the United Kingdom. EEA membership would also allow Scotland to negotiate a trade agreement with the United Kingdom, assuming that the UK had not remained in the customs union, in which case Scotland could be in that as well.

Whatever the relationship with the EU, Scotland would need to be clear on its own vision of Europe. Recently, the SNP leadership has been talking more about shared sovereignty, perhaps overcoming its previous reservations about federal ideas. It has also sided with those pressing for a more ‘social Europe’, countering austerity and neo-liberalism. As Europe moves either to closer integration or to a more explicitly two-speed or multi-speed model, Scotland would have to decide where it fits. The SNP’s policy on the currency has not, in spite of recent attempts, been clarified; sharing a currency with the UK would surely preclude closer integration in EU banking and monetary initiatives.

Differentiated Brexit

Independence is not the only proposal the Scottish government has made in response to Brexit. They also suggested a differentiated arrangement, which would have left Scotland in the single market on EEA terms, although in a customs union with the UK. This was immediately turned down by the UK, and there was a conspicuous lack of support from the European Commission and other member states. The UK government talked of a ‘red, white and blue Brexit’ and insisted that the whole United Kingdom must leave together. The Scottish government’s proposals were feasible but complex, and would have required the devolution of all powers relevant to the single market. In that case, one might argue that it would be better to go for independence, whether in the EU or EEA.

It is true that the UK government and the EU agreed on a special arrangement for Northern Ireland, which contained many of the features to which they had objected in the case of Scotland. While the UK insisted that this was a mere temporary backstop, they would need to be incorporated into the final UK-EU trade agreement in some form if the objective of keeping the border open were to be met. The politics, however, were different. The Irish government, as a member state, was able to insist on a differentiated arrangement for Northern Ireland as part of the withdrawal agreement, while Scotland had no such sponsor. The EU was also alive to the sensitive nature of anything to do with Northern Ireland and to the precariousness of the political settlement there. The fact, in any case, is that differentiated arrangements for Scotland were not part of the negotiation.

External Association

In the absence of a formal arrangement with the EU, it might be possible for Scotland to align voluntarily with EU regulations in matters of devolved competence, even where this means divergence from the UK. The initial UK response to Brexit appeared to make this very difficult. It argued that those competences that are both devolved and Europeanised were not really devolved at all. Scotland, Wales and Northern Ireland were just implementing EU policies. After Brexit, these would become UK policies, which the devolved institutions would continue to administer. Later, the formulation was changed to say that EU ‘frameworks’ would be replaced by UK frameworks. Consequently, the first version of the EU Withdrawal Bill proposed to take all existing EU law back to Westminster, with powers then being ‘released’ to the devolved bodies as appropriate. This betrayed a serious misunderstanding of how these competences worked within the existing settlement. They were not part of administrative devolution, which has its own provisions within the devolution acts. The devolved UK bodies, rather, had the same scope for policy-making within the European frameworks as do member states, and there have been substantial differences in the application, for example, of the common agricultural policy. In the event, the UK government retreated a long way and the final EU Withdrawal Act reverses the assumption that the powers will revert to Westminster and provides only for a time-limited reservation, pending the agreement of legislative or non-legislative frameworks.

At present, we know very little how all this will work, but it potentially allows Scotland to look to Brussels rather than London for guidance on policies. One vision of Brexit is a hyper-globalised one, abolishing tariffs and slashing regulations. Although UK ministers have now, for the most part, backed away from this, it remains an option should a long-term trade agreement not be reached. In that case, Scotland might opt to retain more demanding agricultural, environmental and, where they fall within its competences, social regulations. While this might entail a competitive disadvantage in UK markets, it would ease access to European ones. The Scottish Continuity Bill contains provisions giving Scottish ministers powers to bring Scottish regulations into alignment with European ones, whenever the latter change. This element of the bill survived the challenge in the UK supreme court. There is also provision to retain the EU Charter of Fundamental Rights in relation to devolved matters, even though it is the element of retained EU law that is not retained in the UK’s Withdrawal Act.

One matter in which successive Scottish governments have shown a particular interest is migration and freedom of movement. There is a broad cross-party consensus in the Scottish parliament that the nation faces a severe demographic challenge and needs to rebuild its population. There are also sectoral challenges, notably in the agriculture, fisheries and hospitality industries, in the health service and in higher education. So far, the UK government has refused to countenance territorially-differentiated policies in immigration or freedom of movement of workers. Yet such arrangements do exist in some federal states. It would be difficult for Scotland alone to remain within the EU/EEA regime of free movement of labour, as that is a matter for independent states and the EU, and involves reciprocal rights. It would, however, be possible for the UK to allow Scotland a margin of manoeuvre in setting rules for non-UK, including European, citizens wishing to work there. Student mobility is another area where Scotland might have its own arrangements, depending on what the EU continues to provide.

More broadly, EU membership has encouraged the development of networks across economic actors, local government and civil society. Some of these have been encouraged by European project funding, which will end. It will therefore take some conscious effort to ensure that the networks do not atrophy.

Scotland in Europe and the World

Post-Brexit, many activities currently managed within European institutions and frameworks will become part of external policy or para-diplomacy. Scotland’s efforts in this field have waxed and waned, as is also the case with other sub-state governments. Para-diplomacy has multiple objectives, including promotion of trade and investment, culture, education, policy learning and the promotion of desirable causes like environmentalism and human rights. Para-diplomacy, the external projection of internal competences, is sometimes distinguished from proto-diplomacy, which is about preparing the way for independence. Clearly, the latter is likely to cause conflict with the central state, and there were tensions between the two governments during the 2014 referendum.

Para-diplomacy can also cause friction, as has happened at various times since the 1980s over Scotland’s distinct efforts in inward investment. For the most part, however, since devolution relations have been relatively harmonious, even with governments of different political complexions at the two levels. Scottish representatives have been incorporated into UK embassies and the permanent representation to the EU without undue difficulties; such arrangements would be unthinkable in Spain or between Canada and Quebec. Partly in response to Brexit, the Scottish government is expanding and strengthening its external presence. Connections in Brussels will be important if Scotland aspires to match European policies and regulations and be aware of what is coming up. So will contacts in member state capitals. Yet the line between para-diplomacy and proto-diplomacy is not always a clear one and, in so far as Scotland and the UK are pursuing different policy objectives, there is always room for conflict. If they are following radically different trajectories in relation to Europe, this may be exacerbated. The old consensual model may be more difficult to sustain.

Before Brexit, there were mechanisms for a Scottish input into EU policy-making, through the Joint Ministerial Committee (Europe) and official networks. While these were widely criticised as lacking in power, they did provide a regular forum for consultation. There was also a Scottish government presence in Brussels, allowing for advance information on upcoming initiatives and for networking. After Brexit, the European mode of policy-making will give way to foreign policy and traditional diplomacy, in which the devolved governments have no role whatever. This has raised the question of how Scotland, Wales and Northern Ireland can feed into international negotiations, primarily over trade but also about the environment, human rights and linked fields.

There is also the question of how the devolved governments will feed into the overarching institutions that are intended to supervise the future relationship. Otherwise, Brexit could lead to a recentralisation as the UK uses its monopoly over foreign policy to intrude into devolved competences. The Welsh government has actively promoted a model of cooperative federalism, in which devolved governments will have a role across domestic and external policies. Frameworks to replace the European ones would be handled by a UK Council of Ministers, in which the UK government would not always have the last word. The Scottish government has been less enthusiastic, emphasising autonomy and safeguarding, rather than sharing, powers. Although Scotland and Wales have cooperated over many Brexit-related matters, this is an important difference in approach which could militate against a longer-term coalition. The facts that Wales voted leave and that the Northern Ireland institutions have not been operative since early 2017 also work against a coherent response to centralising forces.

Stands Scotland Where It Did?

Scottish devolution can be seen in two ways. It is a pragmatic compromise between the historic positions of independence and union. Alternatively, it is a coherent programme for the transformation of the UK into a form of asymmetrical federation. EU membership has played a vital role in managing this ambiguity and taking the edges off the nationalist-unionist conflict, especially given the elite consensus in favour of Europe. If the UK should move towards the hyper-globalist, neo-liberal mode of political economy or towards the transatlantic pole, this could exacerbate its internal territorial tensions as Scotland cleaves to the European social model. So far, intergovernmental discussions have focused on the mechanics of intergovernmental institutions after Brexit or the details of policy competences. This is largely because of a lack of consensus on the big issues and broad principles. Yet, if these larger questions are not resolved during the Brexit process, they could seriously undermine an already fragile British union.

References

Crowther-Hunt, Lord and Peacock, AT (1973) ‘Memorandum of Dissent’, Royal Commission on the Constitution, 1969-1973, Paper No Cmnd 5460

Keating, M (2009) The Independence of Scotland: Self-Government and the Shifting Politics of Union, Oxford: Oxford University Press

Montagu, I (2019) ‘Is Brexit a Springboard or a Balancing Act for Nicola Sturgeon?’, What Scotland Thinks, 22 Jan 2019, http://blog.whatscotlandthinks.org/2019/01/is-brexit-a-springboard-or-a-balancing-act-for-nicola-sturgeon

Prosser, C and Fieldhouse, E (2017) ‘A Tale of Two Referendums – The 2017 Election in Scotland’, British Election Study, 2 Aug 2017, http://www.britishelectionstudy.com/bes-findings/a-tale-of-two-referendums-the-2017-election-in-scotland

Media, Youth and Culture

Paul Reddish | ProjectScotland

In this chapter, we will explore three key areas. Firstly, the current EU policies and strategies that directly relate to young people, their merits and areas where development is still required. Secondly, Scotland’s policies and strategies for young people and how this compares with wider EU strategy, along with the impact of Brexit on both Scotland and the EU in this context. Thirdly, we will explore, throughout all of this, the role young people currently play to influence and shape policy and strategy relating to them, in both a European and Scottish context.

EU Policies and Strategies Relating to Young People: Making a Real Difference

Young people have on the whole benefited from a positive focus on investment in their rights and their future in recent times. This includes, in employability and workers’ rights, the introduction of a minimum wage and employment rights for part-time workers, which a significant proportion of young people benefit from comparatively to other demographics. Increasing youth employment has been a key focus for some time now across the EU, with investment into EU member states prioritising this through funded programmes like the Youth Employment Initiative (YEI) and the European Structural Funds (ESF). These have been a vital part of the national response to what has been an improving picture over the last few years in youth employment, particularly in Scotland.

Freedom of movement and ease of travel have been critical to the success of Scotland’s economy, with young people from Europe playing a vital role in filling areas with labour shortages, such as the tourism industry in and around the Cairngorms national park (and in many other areas) and care services right throughout Scotland.

Europe’s flagship programme, built on the right to freedom of movement, Erasmus+, allows young people to work, study and travel throughout Europe with support and funding from a number of agencies that collaborate across the EU. This has enabled thousands of young people to study part of their course elsewhere in Europe, volunteer to experience, and understand better, a different culture and increase their employability skills and prospects. It is a hugely popular programme that Scotland is fighting hard, led by YouthLink Scotland, to remain part of through the #KeepErasmusPlus Campaign in the event that the UK exits the EU.

Disconnect Between the EU and Its Young Citizens?

Perhaps the biggest clues as to the EU’s relationship with young people sit within the EU’s youth goals launched in 2018, following a large-scale consultation with young people across Europe. These goals highlight the areas of policy and interest that are most relevant to young people in Europe today, including:

  • Connecting the EU with youth
  • Equality of all genders
  • Inclusive societies
  • Information and constructive dialogue
  • Mental health and well-being
  • Moving rural youth forward
  • Quality employment for all
  • Quality learning
  • Space and participation for all
  • Sustainable green Europe
  • Youth organisations and European programmes

The lead point from this consultation is a recognition that the EU needs to address a lack of trust amongst some groups of young people in the EU, who encounter a democratic deficit in their ability to engage with, and influence, the EU. The complexity of many of the EU’s processes for engagement and organisation are seen as a barrier to young people in being able to meaningfully engage with and shape policy (Youth Goals 2018).

In a response to this challenge, the EU launched a series of videos under #EUandMe, which profiled the different policy changes they have made to improve the lives of young people. At the time, the associated coverage suggested the primary aim was to make the EU more accessible for young people. Whilst this increases understanding of the benefits of the EU for young people, it is another example of one-way communication rather than open dialogue, where young people are able to help shape policies and interests that impact them.

This is the EU’s biggest challenge in the way it needs to reform to connect and engage with its young citizens. Until now, the EU has been focused on developing policy that benefits young people, without necessarily involving them in the shaping of it, particularly in areas that they are passionate about.

Today’s digital age sees young people with the ability to connect and to seek alternative platforms to make their voices heard. Perhaps the highest-profile example was the recent video by Greta Thunberg, who was given a platform at the UN Climate Change COP24 conference, where she was particularly critical of older generations’ continual failure to address this issue. This gained viral traction across social platforms and led to a mass walkout of young people from schools across multiple countries in protest of the issue. This type of action is indicative of a group engaged in specific policy areas, but that do not have a voice to influence change in other ways.

An indication of the journey we still have to go across the EU on this matter is in the voting age across Europe. In almost all EU states and European Union elections, you need to be 18 to vote in elections. There are some notable exceptions including Austria (16) and Scotland (16), whilst some have moved towards this. Germany and Estonia have reduced the voting age to 16 in local elections, although this messaging itself is confused in suggesting that young people should have a say on issues that affect them locally, yet should not be allowed a vote on issues of national or Europe-wide importance. This is in spite of evidence that 51% of young people see themselves as global citizens first, and national citizens second (Globescan 2016).

It is clear the EU has recognised this as a priority and is starting to form policy to facilitate such opportunities to give young people a voice and a platform within the EU and on its future.

We are now starting to see new policies developed across Europe that recognise the need not to just support young people, but to empower them to be able to engage in democratic processes and decision-making. The EU’s recent Youth Strategy for 2019-2027 talks about the need to engage, connect and empower young people. It has a particular focus on the need to increase youth democracy and participation. If this can be achieved alongside the EU’s track record in delivering a rights-based approach, the EU has a real opportunity to take youth policy development and engagement to a new level of creativity and impact, bringing with it a renewed interest in the EU project amongst young people increasingly concerned with global and political issues.

There are practical benefits to involving young people in decisions that impact on them. Even in the successful flagship programmes such as the newly launched European Solidarity Corps, a strand of Erasmus, there are practical improvements that can be made to the intent. For example, the programme seeks to engage those with fewer opportunities and, in providing opportunities to participate in their own country in volunteering activity, this removes a significant barrier for a number of young people as it gives them an easier entry point to solidarity activity. However, the stipulation of all solidarity activity having to be 30 hours a week minimum itself provides a barrier to engagement for those with more complex issues and support needs, and by its nature stipulates to young people what their commitment should be to be considered valid solidarity activity. The European Solidarity Corps is a fantastic programme, but if it is to connect with those it desires to support then being open to co-designing its future iterations using the principles outlined in the EU Youth Strategy is likely to lead to a more inclusive and engaging programme, suitable for even the most marginalised young people to engage with.

Scotland’s Relationship with its Young Citizens

In many ways, Scotland is slightly ahead of the rest of the EU in its journey to include and involve young people in democratic processes and the influencing of policy that impacts them. The voting age was reduced from 18 to 16 for the 2014 referendum on Scottish independence and then permanently reduced to 16 for all local and national (Scottish) elections in 2016.

Scotland’s Youth Work strategy, led by YouthLink Scotland, for the period of 2014-2019 has significant parallels with the EU Youth Strategy launched this year. It has democracy, rights and participation at the centre, and was an early building block in ensuring a greater youth voice in matters that impact on them in Scotland.

Throughout the last few years, there have been examples of youth participation in issues that impact on them going right to the heart of policy-making in government. Following a campaign led by ‘Who Cares? Scotland’ into the issues relating to the care system for looked after children in Scotland, the Scottish government committed to an independent care review, which would fully involve young people with care experience, and would put forward recommendations to improve and change the care system in Scotland. This is one of a number of examples of policy-making with involvement of young people where it primarily impacts on them.

2018 was Scotland’s ‘Year of Young People’ and this has acted as a catalyst for continued engagement in key policy areas. This includes a youth commission on mental health led by a number of civil society organisations, Young Scot and the Scottish Association of Mental Health (SAMH); a design team looking into the future of volunteering policy in Scotland, led by Young Scot and ProjectScotland; and the ‘Young Women Lead’ leadership programme for under 30s led by the YWCA Scotland (designed to increase young women’s participation in politics).

Scotland is at an early stage in this journey and there are still many examples of decisions being taken that impact on young people with no further consultation with those involved. This is particularly the case as local authorities seek to make savings in their budgets due to the current economic challenges facing councils. These include the recent cuts to youth work services in Argyll and Bute, and the recent decision by Midlothian council to completely remove music tuition in schools. The latter was reversed following a flash mob of young musicians playing in protest outside council offices at the final budget meeting considering the cuts.

In summary, although Scotland is ahead in some ways in its empowerment of young people to contribute to policy areas that impact them, the examples are still isolated to a minority of national policy areas. Having those with lived experience front and centre of policy making needs to be encouraged not just at national level in social areas, but also on the future of our cities, in the employability, skills and education debate of which the voice of young people is not as prevalent as other policy areas that impact their futures.

Scotland’s Relationship with the EU in Regards to Young People

Given Scotland is slightly ahead in its thinking and implementation in the areas mentioned above, it would be a missed opportunity for both the EU and Scotland for collaboration not to continue in this area. It is particularly important, if Brexit does happen, that the relationship and collaboration in areas of youth work and youth mobility is maintained, so that both can continue to share ideas and approaches as Scotland and the EU strive to be more inclusive to their young citizens.

Scotland has embraced the rights-based approach championed by the EU, particularly in regards to the rights of young people. The formation of the Children and Young Person’s Commissioner for Scotland in the early 2000s has been a key focal point for protecting the rights of children and young people, with much of the work linked to the development and goals of both the EU and the UN.

The Scottish government has also sought to make changes that build on and enhance EU legislation. Following a UK implementation of the national minimum wage, the Scottish government has supported a Scottish living wage pledge which encourages businesses to pay a higher rate tied to the real living wage, reviewed regularly in partnership with the Poverty Alliance.

Brexit and Young People

Over 80% of Scotland’s young people voted in favour of staying in the EU which, on the face of it, demonstrates support for the EU as an institution. However, voter turnout for young people in the last European elections in Scotland in 2014 was as low as 20%. Although turnout in UK and Scotland elections are lower amongst young people, this is significantly lower again. So young people’s attitudes to the EU look multi-dimensional, given these two pieces of evidence. There are clues as to why this may be in the earlier evidence presented regarding the growing feeling amongst young people that they are global citizens first and foremost. Being part of the EU may therefore be more ideological in that any opportunity to share and collaborate on global and international challenges, including European ones, is a good thing.

In recent research (Children in Scotland 2018), the three biggest issues put forward by young people, to be protected in the event of Brexit, were a continued contribution to, and participation in the Erasmus+ programme; travel without visas for work, study and general travel; and that workers’ rights must continue to be protected in line with EU law. This underlines the global citizenship theory and gives the EU and Scotland clues as to what matters to young people, and where they must start in protecting and forming new relationships between the two.

Scotland’s Young People, the EU and the Future

Some, such as Guy Verhofstadt, have expressed the hope that if Brexit does happen the UK (and Scotland, unless independent at that point) will rejoin the EU, and Brexit will then be reversed by future generations who overwhelmingly support the EU (Stone 2018).

But the EU and Scotland cannot be complacent on this, particularly given low voter turnout. It must not mistake global citizenship and a desire to influence issues cross borders as support for the EU as an institution in its current form.

The EU has done much to protect and further the rights of children and young people, as well as providing opportunities to travel, learn and develop skills, But the EU will need to do much more in the future to meet the growing expectation of today’s global young citizens. Young people have grown up with these rights and benefits and are worried about the impact of losing them. And they have raised expectations about their ability to influence the things that matter to them the most. Many want more than policies that support them – they want to be involved in the shaping of those policies.

This is the single biggest policy and strategic shift related to young people that must happen, if the European project is to be seen as a success amongst young people. This ability to engage young people in decision-making and the design of policy in the EU is critical to building trust and support for the EU project amongst young people in the long term. If this can be achieved, alongside the protection of rights and opportunities for the EU’s young citizens then, regardless of Brexit, Verhofstadt’s assessment may well be right.

References

Children in Scotland (2018) ‘Negotiated Withdrawal Agreement and Political Declaration Child and Young People’s Panel on Europe Briefing to MPs’, 4 Dec 2018, https://childreninscotland.org.uk/wp-content/uploads/2018/12/Withdrawal-Agreement-Briefing-CYP-Panel-recs.pdf

Globescan (2016) ‘Global Citizenship a Growing Sentiment among Citizens of Emerging Economies: Global Poll’, 27 Apr 2016, https://globescan.com/global-citizenship-a-growing-sentiment-among-citizens-of-emerging-economies-global-poll

Stone, J (2018) ‘Britain Will Reverse Brexit and Rejoin EU once “New Generation” Is in Charge, Guy Verhofstadt Predicts’, The Independent, 29 Nov 2018, https://www.independent.co.uk/news/uk/politics/brexit-uk-rejoin-eu-guy-verhofstadt-parliament-michel-barnier-theresa-may-deal-a8658856.html

Youth Goals (2018) ‘Youth Goals Structured Dialogue’, Apr 2018, http://www.youthconf.at/wp-content/uploads/2018/04/YouthGoalsHandout.pdf

Nick Barley | Edinburgh International Book Festival

In the evening of 21 August 2018, Nayrouz Qarmout finally arrived after a long bus journey at the Egyptian border crossing point at Rafah. Here, at one of only two legal exit points from her home territory of Gaza, the Palestinian writer was made to wait three hours before being allowed to enter a ‘no man’s land’ waiting zone.

After successfully crossing the border, Qarmout had to sleep overnight on a dirt floor along with hundreds of other people trying to make the same journey. Once she received clearance at 7am, she was taken to a nearby Egyptian settlement for further checks, and only after that could she begin an arduous 12-hour journey by taxi across the Northern Sinai desert (an on-off war zone) to Cairo, where she would stay another night before finally flying to Edinburgh for an event that had been hastily rescheduled due to delays in her securing a visa.

Nayrouz emailed me some photographs from the waiting zone: the kind of images that we often see in the media these days, of families seemingly surrounded by all their worldly belongings in large gingham-checked shopping bags. It could easily have been mistaken for a refugee camp or a shelter for people escaping a natural disaster. But this border crossing is no disaster zone: it is the experience that any Palestinian living in the Gaza Strip can expect to endure when they need to make an international journey.

Unlike the other people trying to leave Gaza on that day in August, Qarmout was already an international news story. Even before embarking on an arduous journey, her repeated failed attempts to secure a travel visa from the UK authorities to speak at the Edinburgh International Book Festival had turned her into a cause célèbre in the British media – a lightning rod for the horror that many UK citizens were feeling in response to the government’s increasingly strict policy on visas and immigration. To no one’s surprise, her rearranged Edinburgh event sold out its 200+ capacity within a couple of hours of tickets going on sale.

Qarmout’s case was far from the only example last summer. At the Edinburgh International Book Festival alone, there were at least a dozen writers who faced problems in securing a short-stay visa – many of them seeking to travel from either Middle Eastern or African countries. Deeply frustrated by the situation, I decided it was necessary to speak out in the media – even though several of the authors in question were feeling humiliated and were keen to remain anonymous. The Herald, Scotsman, Times and Guardian newspapers ran news interviews, and the piece was quickly picked up by BBC, STV and Channel 4, as well as by worldwide news media including Reuters. A further wave of stories ran in the Financial Times, Economist and various US news media, as well as a number of Arabic-language and Middle Eastern news outlets.

With Britain in the throes of a protracted Brexit process, it was obvious from the start that this media interest was being fuelled by the prospect of a problem that may well soon become a reality for EU visitors to the UK. Perhaps as a result of the spectre of Brexit, there was an immediate surge of support from other British festivals and cultural organisations that run international programmes, voicing concern that they too were experiencing visa challenges for some of their artists. A group of us wrote a public letter to the Guardian outlining our concerns, while the WOMAD music festival also went public about its own visa challenges.

What did this flurry of media attention achieve? The stark truth is that, six months on, precious little has changed. Indeed, following the publication of the UK government’s Immigration white paper in December 2018, it seems clear that the strict visa and immigration policies pursued by the UK government since 2010 are becoming even more deeply ingrained into the fabric of Britain’s legal and political system.

Creating a ‘Hostile Environment’

How did we come to this? Following the Conservative party’s election victory in 2010, the then Home Secretary Theresa May chose some tough language to describe the immigration policies her party was creating. ‘The aim is to create, here in Britain, a really hostile environment for illegal immigrants,’ May told the Telegraph in 2012 (Kirkup and Winnett). During her six years in office as home secretary prior to becoming prime minister, May was responsible for seven immigration bills. Human rights campaign group Liberty has claimed that she made no fewer than 45000 changes to the immigration rules during that period, including slashing asylum support, denying legal aid and removing rights to appeal (Liberty 2016). A year later, May stated in parliament that her intention was to ‘deport first, and hear appeals later’ (Bartlett 2018), a phrase which prompted an impassioned response from Labour MP David Lammy, who hoped that the British public would recognise ‘the nastiness that is at the heart of this discussion.’ For ‘nastiness’, one might easily infer ‘racism’.

The government’s stated aim was to reduce the annual net immigration figure from over 250000 to what May suggested should be ‘tens of thousands’. But while the intention of Theresa May’s hostile environment was to drastically reduce the overall number of immigrants (and especially illegal immigrants) settling in the UK, the impact of the policies was set to affect many more people than just those whom she was targeting.

In the summer of 2012, tighter border checks at UK airports resulted in widespread public irritation over lengthy queues for British holidaymakers returning home. More worryingly, there are instances of people deported to countries where they were known to have been at risk, and subsequently been murdered. In September 2018, the Independent reported on the case of Zainadin Fazlie, an Afghan man who had fled to the UK from the Taliban in 2000 and was granted indefinite leave to remain in the UK with his wife. Fazlie was eventually deported to Kabul in 2016 after receiving an eight-week suspended sentence for a minor offence in London. Recent law changes meant that he had no right to appeal. Soon afterwards, he was shot dead in his home town by Taliban forces (Bulman 2018a).

In further evidence of the impact of hostile environment policies, it has emerged that scores of victims of human trafficking or human slavery – mainly women – are either being jailed or deported in breach of the Modern Slavery Act 2015. According to the Independent, one woman, who was forced into prostitution and cannabis production after being trafficked from Vietnam in the back of a lorry, spent more than five months in prison before she was recognised as a victim of human trafficking (Bulman 2018b).

Theresa May’s apparent obsession with reducing immigration would eventually lead to the resignation of her Home Office successor Amber Rudd, as the government was engulfed in the Windrush scandal in 2018. An estimated 500000 people now live in the UK as British citizens who arrived from Caribbean countries between 1948 and 1971. May’s changes to immigration laws meant that many such people, and children born to them in Britain, were now required to apply for the right to remain. At a stroke, thousands of people granted indefinite leave to remain in the UK in 1971 were threatened with deportation. A National Audit Office report in December 2018 heaped criticism on the government:

‘The treatment of people who had a legitimate right to remain in the UK raises grave questions about how the Home Office discharged its duty of care towards people who were made vulnerable because of lack of documentation. It failed to protect their rights to live, work and access services in the UK, and many have suffered distress and material loss as a result. This was both predictable and forewarned. The department is taking steps to put things right for the Caribbean community but it has shown a surprising lack of urgency to identify other groups that may have been affected.’

Perhaps most worryingly, the same report stated that the Home Office ‘failed to sufficiently consider the risk of unfair consequences of the “hostile environment” policy’ (BBC News 2018).

While it might not compare to people losing their lives or their homes, over the past few years it has become clear that those ‘unfair consequences’ are also causing major challenges to Britain’s cultural organisations, and in turn jeopardising the UK’s long-standing reputation for international cultural openness. What’s more, there is absolutely no certainty that a post-Brexit UK will not create an environment that’s every bit as unwelcoming to EU visitors.

At the 2018 Book Festival in Edinburgh, the problem was not simply that a dozen authors were denied visas. Actually, on the face of it, Edinburgh’s problem dissolved thanks to the hard work of British Council senior staff and ambassadors in a number of different countries. To our great relief, every single one of the initial refusals was overturned, and each of the affected authors was able to travel to Scotland. Perhaps the visa system was simply doing its job. Perhaps it could be argued these are justifiably tighter controls on the kind of people who would love to abscond and gleefully run off to get a job in a Burger King in Wolverhampton, having arrived in the Land of Hope and Glory.

The trouble with this argument is that international authors receiving an invitation to the Book Festival tend to be household names in their home country. They are often well-known not only at home, but across the continent in which they live: famous (and sometimes wealthy) because of their success as writers and artists – and with no incentive to abscond having arrived in the UK. One person whose Edinburgh appearance was affected by the visa issues last summer is both a musician and writer. He is so famous in his home country that he and his band recently played to an audience of more than 50000 people in the national stadium there. One member of his band not fortunate enough to hold a joint passport from a European country was denied a visa to visit Scotland – a process that he described as ‘humiliating’. The group was so upset that, for 48 hours, they were intent on cancelling their visit to Edinburgh, whatever the outcome of the latest visa application. Eventually I managed to persuade them to make the trip, but the damage to their image of Britain was done.

What if it was the other way round? Imagine that Sir Paul McCartney, after graciously accepting an invitation to play a concert in a foreign country, applies for a short-stay visa and is asked to supply three years’ worth of personal bank account details. Having done this, his visa is denied on the grounds that he has suspiciously large amounts of money in his account. In a good-humoured act of goodwill towards the event organisers, he decides to appeal the decision, and is then told to report to an embassy in another country several hours’ flight away, where he must supply biometric evidence as well as his birth and marriage certificates to prove he is who he claims to be. Oh, and his daughter’s birth certificate too. Nobody would be surprised if the former Beatle politely decided to decline such an endurance test. Would he not be justified in asking ‘Do you know who I am?’ And might he not be dubious about accepting requests to visit that country in future? And as for his likelihood of absconding once there… I suppose anything is possible.

But seriously, the potential challenge facing British cultural organisations stems not only from the humiliation felt by those who have had visas denied. Much more importantly, the problem is that authors, artists and musicians are deciding not to put themselves through it in the first place. That is not just an idle threat: at the end of February 2019, the organisers of WOMAD stated that this has become a reality for them right now (Marsh 2019).

International Dialogue – Still Essential

Despite the question marks around the UK government’s immigration policies since 2010, and notwithstanding the landmark 2016 vote to leave the EU, Britain attained the number one spot in a list of the world’s leading ‘soft power superpowers’ in 2018, assembled by the strategic communications consultancy Portland (Soft Power 30 2018). This, according to the judges, was because of Britain’s world-leading creative, cultural and technology sectors. Admitting to their surprise at Britain attaining the number one ranking in the list, the judges nevertheless say that ‘striking out in the current political context’ (ie Brexit) ‘looks exceedingly risky’, but that ‘the UK has the global connections and infrastructure to make a success of it’ in soft power terms. However, ‘continued investment in the institutions and vehicles that export British soft power will only become more vital as Brexit is completed.’

While such terminology does not sit very comfortably with my own approach to cultural engagement, I agree with the basic sentiment that international cultural engagement remains vital to Britain, with or without Brexit. It is important for the cultural ecology of Britain for many reasons, not least because international dialogue helps promote and encourage diversity. International exchange also opens up space for the kind of conversations that encourage innovative thinking. The Book Festival ran a project in 2017 called Outriders, in which writers travelled in pairs (one Scottish and one American) across the American continent for a month, looking together at the landscape and people of different parts of that vast continent. The result was a game-changing series of encounters that will continue to affect the writers’ work and ideas for many years to come. These journeys had the luxury of being spread over a reasonably extended period, but even shorter overseas visits can have a profound influence on writers and their practice. In 2019, we will be embarking on Outriders Africa, with journeys across different parts of the African continent. Let’s hope that visa challenges do not prevent the results from being discussed in Edinburgh.

After Brexit

Of course, the visa problems that have affected the Book Festival do not apply when it comes to the European Union. Not yet, at least. Nevertheless, it is quite clear from my conversations with international authors that the uncertainty surrounding Britain’s exit from the European Union is becoming conflated with visa issues. Whether or not Brexit will ultimately lead to restrictions on mobility for cultural professionals travelling to and from the UK, some damage to Britain’s international reputation has already been done.

It would be wrong to imagine that only authors from certain Middle Eastern and African countries are affected by the consequences of the hostile environment policies. Several authors arriving from other countries told me that they had experienced aggressive or dismissive behaviour from customs and immigration officials at UK airports – and at least two of them were detained for several hours for reasons that they found upsetting. One, who was adamant that she would not speak publicly because she did not want her visit to be overshadowed by headlines about it, privately told me that she had been ‘racially targeted’ by officials at the airport.

Unless the UK government makes a concerted effort to change both policies and perceptions, the impression of the UK as an unfriendly host for short-stay artists and authors will only get worse after Brexit.

The Scottish government has argued that Scotland is particularly vulnerable to tougher immigration policies. According to ministers in Holyrood, Scotland’s demographics have long been different from those of England, its population either declining and ageing or, even in the best of times, growing much less quickly than the population south of the Border. Ben Macpherson, the Scottish migration minister, has claimed that immigration is ‘absolutely critical to Scotland’s future prosperity’. Despite an independent report from the Migration Advisory Committee, which argued that many areas of northern England suffer from similar demographic problems and that a very different migration policy is ‘not justified’, a number of Scottish businesses have warned that Brexit will result in them losing much-needed migrant workers. Speaking at the recent National Economic Forum in Dundee, Rural Economy Secretary Fergus Ewing argued that many rural businesses in Scotland rely on low-skilled EU workers and that leaving the single market would have a devastating effect. First Minister Nicola Sturgeon even went as far as to call the issue ‘one of the biggest risks to [Scotland’s] economy’ (Press and Journal 2018).

Alongside this, in 2018 the Scottish government identified culture as ‘a central consideration across all policy areas’, arguing that it is ‘central to progress in health and well-being, economy, education, reducing inequality and realising a greener and more innovative future’ (Steel 2018). If the net effect of the hostile environment policy is to reduce the ability of Scottish cultural organisations to sustain international and European cooperation and dialogue, a key plank of the Scottish government’s economic policy will be damaged.

For those who would argue that after Brexit it will be possible for the UK (and Scotland) to negotiate new and more flexible trade deals, the priority must equally be to enable international including European cultural dialogue. ‘Soft power’, the phrase coined by Joseph Nye in the 1980s, remains influential with governments. In effect, he argued that the widespread international acceptance and understanding of culture, ideals, and values is extraordinarily important in helping governments attract partners and supporters (Ikenberry 2004). Without international cultural understanding, according to Nye and his followers, it will be very much harder for a country to have any influence with international partners.

Cultural visits are, quite simply, key to international dialogue and understanding. I have travelled to Buenos Aires with Irvine Welsh and to Guadalajara with Val McDermid. I have been to Iasi (Romania) with James Meek, to St Malo with Ian Rankin and to Pisa with Jenni Fagan. In all of these places, I have heard Scottish writers talk about the ideas and values of their home country to audiences who were eager to learn more – not just about whisky and tartan, but also to be better informed about young people and homelessness, drug use and crime in Scotland – even to know more about Scotland’s internationally-renowned cultural scene. Writers and artists are cultural ambassadors whose words will inevitably have an influence – small or large – on international relations and tourism including the EU where, if Brexit goes ahead, culture can surely help rebuild a part of the goodwill damaged by the Brexit process. And that, in turn, will lead to international trade: not just book deals, but so much more. The same goes for visitors to the UK by authors and artists from other countries. If we deny them the chance to visit, or by hostile policies make them feel unwelcome, Britain is simply cutting off its nose to spite its face.

Nayrouz Qarmout’s visit to Britain was, in the end, a successful one. She returned to Gaza City after two weeks in the UK, having visited Edinburgh and London. A few weeks later, I saw a half-hour interview with her on an Egyptian TV channel, in which she spoke about the difficulties she had faced in getting to the Edinburgh International Book Festival. I am not sure how many people in Egypt might have watched that programme, but perhaps a million viewers will have heard, loud and clear, that Britain’s approach to this particular cultural visitor was hostile. Qarmout has a book of short stories that will be published in English translation later this spring. Will she accept an invitation to speak about it in Edinburgh? After the traumas of her visit in August 2018, I would not be at all surprised if she politely declines.

In normal circumstances, the Edinburgh International Book Festival is politically neutral in order to create a forum in which all views and beliefs can be heard. At the same time, the festival is a charity that has equality, freedom of speech and international dialogue at the heart of its mission. As the combination of Brexit and a restrictive visa policy add up to a potentially existential challenge to the festival, the time has come for me to speak out – something I would do regardless of the political colour of the current administration.

While Theresa May and other UK government ministers argue that Britain is ‘open for business’, the current perception among far too many people abroad is that we are anything but. We must act to change that perception before it is too late.

References

Bartlett, N (2018) ‘Theresa May Boasted as Home Secretary that She Would “Deport First and Hear Appeals Later”’, Daily Mirror, 20 Apr 2018, https://www.mirror.co.uk/news/politics/theresa-boasted-home-secretary-would-12398544

BBC News (2018) ‘Windrush: “Home Office Ignored Warnings”’, 5 Dec 2018, https://www.bbc.co.uk/news/education-46445109

Bulman, M (2018a) ‘Afghan Father Who Sought Refuge in UK “Shot Dead by Taliban” after Being Deported by Home Office’, The Independent, 13 Sept 2018, https://www.independent.co.uk/news/uk/home-news/zainadin-fazlie-deport-home-office-taliban-afghanistan-shot-dead-refugee-a8536736.html

Bulman, M (2018b) ‘Female Trafficking Victims Unlawfully Held in UK Jails due to “Disturbing” Failure to Identify Exploitation, Finds Report’, The Independent, 16 Sept 2018, https://www.independent.co.uk/news/uk/home-news/human-trafficking-women-uk-victims-prisons-jail-modern-slavery-prison-reform-trust-hibiscus-a8534726.html

Ikenberry, GJ (2004) ‘Soft Power: The Means to Success in World Politics by Joseph S. Nye, Jr (Book Review)’, Foreign Policy, May-Jun 2004, https://www.foreignaffairs.com/reviews/capsule-review/2004-05-01/soft-power-means-success-world-politics

Kirkup, J and Winnett, R (2012) ‘Theresa May Interview: “We’re Going to Give Illegal Migrants a Really Hostile Reception”’, The Telegraph, 25 May 2012, https://www.telegraph.co.uk/news/uknews/immigration/9291483/Theresa-May-interview-Were-going-to-give-illegal-migrants-a-really-hostile-reception.html

Liberty (2016) ‘Immigration Act 2016’, Campaigns, https://www.libertyhumanrights.org.uk/campaigning/immigration-act-2016

Marsh, S (2019) ‘Womad Festival Struggling to Book Artists due to Brexit Uncertainty’, The Guardian, 28 Feb 2019, https://www.theguardian.com/culture/2019/feb/28/womad-uk-festival-artists-performers-brexit-visas

Press and Journal (2018) ‘Warning Hospitality Sector Could Struggle if Brexit Curtails Migrant Workforce’, 20 Nov 2018, https://www.pressandjournal.co.uk/fp/news/scotland/1613249/warning-hospitality-sector-could-struggle-if-brexit-curtails-migrant-workforce

Soft Power 30 (2018) The Soft Power 30: United Kingdom – 2018 Overview, Jul 2018, https://softpower30.com/country/united-kingdom

Steel, P (2018) ‘Culture in Scotland to Be a “Central Consideration across All Policy Areas”’, Museums Association: Museums Journal, 4 Jul 2018, https://www.museumsassociation.org/museums-journal/news/04072018-scottish-government-to-make-culture-a-central-consideration-across-all-policy-areas

Alistair Burnett | Journalist and International Affairs Analyst

Introduction

Traditional media across the European Union is facing multiple challenges from changing audience habits, financial and editorial pressures, many of which either predate or are not a direct result of the disruptive impact of the development of the internet and social media.

For the purposes of this report, traditional media can be defined as media outlets whose primary means of publication historically has been broadcast and/or print, and which existed before the advent of journalism and comment on the internet and social media. These distinctions are not hard and fast, given most traditional media are now online and use social media to disseminate their content. There are also new print titles and broadcasters that have appeared since the development of the internet and social media.

The traditional media is sometimes referred to as ‘legacy’ or ‘mainstream’ media, though the latter is often used by critics as a derogatory term and so I will avoid using it. The specific challenges that face print and broadcast media in the EU have arisen from:

  • Changing consumption patterns since the advent of satellite and digital channels in the early 1990s, which has led to a fragmentation of audiences for broadcast news
  • The exponential growth in use of the internet and social media for accessing news, particularly since Facebook came on the scene in 2004, which has created both financial and editorial pressure on both broadcasters and traditional print outlets
  • In more recent years, some governments, notably in central and eastern Europe, have moved to control what the media reports and how it reports it, and to restrict media independence

Media in Scotland is subject to these same trends, only the pressures are especially intense for reasons that will be explained below. It is possible that the way the Scottish media landscape has been evolving could be a harbinger of what will happen in other parts of the EU.

Declining Circulations and Audiences for Traditional Media in the EU

Declining circulations and audiences for traditional print and broadcast media was an established trend even before the arrival of the internet and social media. If you look at the current three largest EU member states – Germany, France and the UK, they have all experienced the same trend. Just after reunification, in 1991, daily newspaper circulation in Germany was just over 27 million copies. In 2004, the year Facebook was started, it was down to just under 22 million. In 2018, it was down to just over 14 million (Statistica 2018). In France, the fall in circulation has also been pronounced since 2007, with print titles down 6.6% in 2016, following drops of 1.4% in 2015 and 3.8% in 2014 (Lardeau 2019).

The UK has seen the same pattern, with 2018 proving no exception and with press outlets showing continued decline across the board (Mayhew 2018). Public service broadcast news audiences have held up better than print readership, but have been under pressure from the fragmentation of audiences for the past three decades. Nonetheless, competition for audiences, and in many countries for advertising revenue, is intense both from the proliferation of satellite and digital channels, and more recently from online platforms like YouTube, Amazon and Netflix, which, while the latter two do not produce news programming, are proving a major competitor to traditional channels for audiences and advertising revenue.

The BBC has warned of the impact that competition from Amazon and Netflix is having on the British TV production sector. In 2017, the BBC’s director general predicted spending on UK television production would fall by £500 million over the coming decade. Cancellations of TV licences, which directly fund the BBC, have risen with many commentators attributing this to people switching to watching Netflix or Amazon online (Moore 2019). On the plus side, in contrast to the United States of America (Zantal-Weiner 2018), despite the increasing use of social media to get news, in most EU countries (Pew Research Centre 2018) TV remains the main source of news for most people (Matsa 2018). However the younger people are, the less this holds true.

Traditional media outlets have been grappling with the challenge of ageing audiences since the advent of the internet and this has become a more pressing challenge since the big four technology companies, Facebook, Google, Amazon and Netflix came on the scene. The BBC has been debating with itself for more than a decade how to ensure its audience does not literally die off. We have seen various attempts to rebrand and repackage BBC Radio, for instance. For a while, it became BBC Audio, which did not really catch on, so last year BBC Sounds was launched in an effort to appeal to younger audiences who are used to downloading music and podcasts as opposed to listening to radio. The success of these attempts to appeal to younger audiences will determine the future for traditional media as the old assumption, that as people got older their media consumption habits would change as they started careers and families and bought property, is no longer a safe bet (Usborne 2017).

Financial Pressures on Traditional Media

Sales and subscriptions only make up a proportion of media revenue. Historically, a large proportion of revenue has come from state subsidy and advertising. However, the rise of Facebook and Google as well as Amazon and Netflix, which use sophisticated algorithms to gather and process personal data from their users to target their advertisements more to individuals, has taken a large amount of that revenue away from traditional media. In the UK, some outlets like the Financial Times and the Times have responded to the digital challenge by charging digital users to subscribe. Others, like the Guardian, have tried to stay free online but have struggled. The former editor of the Guardian, Alan Rusbridger, said Facebook took away about a fifth of his newspaper’s advertising revenue in 2015 alone (Kanter 2016).

In France, the press is subsidised by the state, but despite this it has struggled with falling sales and revenue and several leading businessmen (and they are all men) have bought up many of the leading titles over the past decade. In spite of legislation to limit concentration of press ownership, a few conglomerates now control a substantial stake in the national media. Dassault, the arms manufacturer, owns Le Figaro. Patrick Drahi, owner of the telecoms company SFR, also owns the daily Libération, the weekly L’Express, twenty-four hour news channel BFM TV and Radio Monte Carlo. Xavier Niel, of the telecoms group Iliad, is joint owner of Le Monde.

These financial pressures have had an impact on the quality of media. The ability of the media to do first-hand reporting, particularly from abroad, has been diminished because journalist numbers have been cut and those remaining have to produce more content, because they now often have to do multiple versions of their stories for print, online and social media. This means more stories are based primarily on news agency reports, press releases and, increasingly, information and comment disseminated on the internet and social media – which, due to limited resources, has not been verified as rigorously as it would have been in the past. With increasing competition for online audiences, the other tendency, which can be seen even on outlets like the BBC, which have prided themselves on their accuracy, is that headlines and stories are sensationalised to attract clicks, or simply chosen because they will attract clicks, rather than because they are significant news.

Editorial Pressures from Social Media

There has been much discussion and comment on the negative impact of social media on the quality and nature of political debate. Some of this is overblown, as any reading of the clippings when radio and TV first started would remind you (Ferguson and Faye 2018). Having said that, social media has put real editorial pressure on traditional media outlets. This is particularly true of public service broadcasters given their remit, even in countries where the state directly controls them, to be impartial and as objective as possible.

This is a generalisation that holds true for most EU states, although the case of RadioTelevisione Italiana (RAI) in Italy shows it does not hold true universally. Before the collapse of the old parties of the pentapartito (five-party coalition) era in the mani pulite (clean hands) scandals of the early 1990s, the three state channels were controlled by different parties. RAI 1 was regarded as Christian Democrat (DC), RAI 2 was a Socialist Party (PSI) fiefdom and RAI 3, the regional channel, was under the influence of the dominant party in that region which, where I lived in the mid-1980s, was the Communist Party (PCI). Although the partisanship of Italy’s state broadcasting is less pronounced today, the pattern set then persists, and former Prime Minister Silvio Berlusconi’s Mediaset’s control of major channels means private broadcasting is also heavily politicised (Mancini and Gerli 2019).

When public opinion becomes particularly polarised, public service broadcasters face a barrage of criticism from audiences who feel their views are not being represented or are trying to intimidate journalists into following an editorial line they approve of. This has been particularly pronounced in recent years: in several EU countries over immigration, with the arrival over more than a million asylum seekers since 2015; in the UK over Brexit; and in Scotland over independence.

Before social media, if people wanted to complain about coverage, they needed to pick up the phone or write a letter or an email. Now with social media, anyone can give instant feedback to broadcasters, but the other key characteristic of social media is that it enables users to share their views with like-minded people, and this has an escalatory effect on bringing pressure to bear on public service broadcasters.

Seeing they are not necessarily alone in their views, social media encourages users to escalate the volume of their criticism and this is often accompanied by a spiral of increasing stridency and aggression. Public service broadcasters have to take this criticism seriously, given their audience is also a key source of their funding, be it through a broadcasting levy or direct taxation. Whether this has had a direct effect on their editorial approach is contested. However, the BBC’s coverage of Brexit referendum was criticised for failing to challenge the two sides robustly over their arguments and factual claims (Cohen 2018). The BBC rejected these accusations, but in 2017 it established a team of journalists to fact -check and identify disinformation on social media (Jackson 2017).

Social media has been used as a platform to spread disinformation, or so-called ‘fake news’, as journalists’ investigations into the use of Facebook during the Brexit referendum in the UK and the last US presidential election campaign, as well as WhatsApp in the last Brazilian election, have revealed. Social media has also been used to spread disinformation about the asylum seekers coming to the EU and humanitarian organisations working to support them (Magee 2018).

The main social media companies, including Facebook (which also owns Instagram and WhatsApp) as well as Twitter and Google, have been reluctant and slow to take action on this. Most observers agree they have been keen to avoid acknowledging their role as publishers given the potential costs involved, both in terms of providing real-time mediation of content, which is labour-intensive, and from legal liability for what their platforms are used to disseminate. However, some EU governments have put pressure on social media companies to take action. In Germany, ahead of the last federal elections, parliament passed new legislation that would fine social media companies up to €50 million for failing to remove criminal content, such as hate speech or defamation.

Facebook CEO Mark Zuckerberg has responded to growing political pressure by insisting the company does what it can to remove disinformation and criminal or harmful content, but Facebook is still appealing against a fine imposed by the Information Commissioner in the UK. Zuckerberg has also surprised many by recently calling for greater regulation of social media. However, many observers have interpreted this as an attempt to try to head off stricter restrictions in legislative proposals that are under consideration in the United States (Neidig 2019).

In addition to traditional media, like the BBC enhancing its own fact-checking resources, new civil society organisations have been established to serve the same purpose, such as Correctiv in Germany (Correctiv 2019). The development of digital and social media has also meant that you do not need to be a journalist working for an established media outlet to publish or broadcast news and comment. While this has increased competition for traditional media, it has also led to many people who started as bloggers becoming well-established and producing excellent content.

State Threats to Editorial Independence

Another recent trend in the EU is that some states, most notably Hungary and Poland, have been trying with some success to restrict the independence of the media and make journalists and editors follow the government’s political line.

In Poland, much of the media, particularly the press, is foreign-owned, mainly by German companies, and the Law and Justice (PiS) government has said it wants to ‘rePolanise’ the media, although to little avail so far. It has had more success with the state media. The PiS government replaced the leadership of TV and radio soon after coming to power in 2015 and, according to the US organisation Freedom House, the main evening TV news programme is now a ‘mouthpiece’ of the government (Chapman 2017).

In Hungary, Prime Minister Victor Orbán’s Fidesz government has been very successful in controlling both what the state media reports and how it reports it (Freedom House 2017). Orbán has also used his allies in business to take control of private media houses. Last year a key Orbán supporter and media owner, Gábor Liszkay, brought together various outlets to create a large agency called the Central European Press and Media Foundation that controls a significant number of popular titles and channels which now toe the government’s line (SEENPM 2018).

Whether this trend is irreversible will depend on whether these parties hold on to power and whether more countries follow suit in electing similarly intolerant governments. There have been signs of civil society pushing back, with large demonstrations in both Poland and Hungary against the repressive actions of these governments. EU institutions have also taken action to pressure PiS and Fidesz to respect the independence of the judicial system and the media.

In Slovakia, there have been similar concerns that state broadcasting would go the way of its larger neighbours, but the murder of an investigative reporter, Ján Kuciak, and his fiancée a year ago led to large public demonstrations in favour of media freedom. These demonstrations led to the replacement of the Prime Minister Robert Fico. Although Fico is still seen as influential behind the scenes, he was nonetheless forced out of office over concern for media freedom and a political novice and anti-corruption campaigner, Zuzana Čaputová, was subsequently elected president this March on this wave of protest.

Scotland as a Potential Example for the Future of Media in the EU

Scotland’s traditional media has experienced the same pressures in terms of falling circulations and audiences and the rise of social media as the rest of the EU, except more so. In this way, Scotland provides a potential example of the way other European traditional media outlets could go, with intense financial pressures and a perception of a substantial proportion of the audience of being out of touch with public opinion accelerating a decline in circulation and audiences.

A pivotal moment in the change to Scotland’s media landscape was the independence referendum in 2014 and the campaign leading up to it. The press, which is almost entirely owned by companies based outside Scotland, was hostile to independence. Its coverage of the referendum campaign was seen by supporters of independence as biased in favour of Scotland remaining in the UK and content analysis that has been done (Law 2015) would suggest this was justified. Only one major outlet, the Sunday Herald, supported independence during the campaign.

Many of the Scottish daily papers are Scottish editions of London-based outlets like the Times and Daily Mail, but independence supporters felt that even the Scottish-based papers, like the Herald and Scotsman, failed to represent their views fairly. This was picked up by commentators outside Scotland, including George Monbiot in the Guardian (Monbiot 2014), which was ironic given that newspaper’s coverage was also notably unsympathetic to independence.

When the referendum result came in, the 45% supporting independence demonstrated that the views of a large proportion of the public had not been fairly reflected in the media. In what can be seen as a tacit acknowledgement of this and an attempt to remain competitive, following the referendum the group that publishes the Herald, Newsquest, launched a new title, the National, to appeal to independence supporters, which has established itself as part of the Scottish media scene.

In terms of public service broadcasting, the BBC faces its most critical audiences in Scotland, where levels of dissatisfaction with the public broadcaster are higher than elsewhere in the UK (GfK Social Research 2016). This dissatisfaction with the BBC increased during the independence campaign, as the broadcaster was perceived by independence supporters to be failing in its duty to be impartial. This led to a protest by independence supporters outside BBC Scotland’s headquarters in Glasgow a few weeks before the referendum.

I was still working at a senior level in BBC News in London at the time and, although I never saw deliberate bias, a lack of in-depth knowledge about Scotland and a lack of sympathy for Scottish independence among many BBC staff were clear and mistakes in coverage were made (Turvill 2014). The BBC has responded to the criticism of its performance in Scotland by launching a new TV channel, BBC Scotland, with its own news programming, in February this year. It is too early to tell if this will help win back the trust it has lost among its Scottish audience.

One of the main consequences of the traditional media’s coverage of the referendum campaign was that independence supporters went online to get their arguments across and a number of high-quality online media outlets came to prominence, such as Bella Caledonia (originally launched in 2007) and CommonSpace (founded in 2015). This has led to Scotland having lively and varied online media outlets.

The appeal of what are often called populist parties and movements in several EU member states, be they the Gilets jaunes in France or Alternative für Deutschland (AfD) in Germany, suggests there are large numbers of people who do not feel their views are being reflected in political and media discourse, and they are also moving online and using social media to get their message across, as well as to organise themselves.

The role of social media in the Scottish independence campaign has, of course, been widely discussed. The two campaigns (pro- and anti-independence) and their supporters not only exchanged abuse, they also traded accusations of putting out disinformation via both the traditional media and social media. The so-called ‘cybernats’ were criticised by opponents of independence for abusive and aggressive trolling of supporters of the union (Grant 2014). But abusive behaviour on the internet also came from opponents of independence, and although emotions ran high during the campaign it was largely free of physical violence.

It is also noteworthy, given the traditional media’s focus on social media behaviour by supporters of independence, that at The World Tonight, where I was editor at the time, we spoke to the police at the end of the campaign and they said the most serious cases of abuse and threatening conduct on social media had come from opponents of independence.

Despite all this, the way Scotland’s digital and social media have developed in recent years is an example of how these channels can serve the public good and not just be dominated by disinformation and vituperation.

Conclusion

The media landscape in the EU is undergoing a period of disruption and change which predates the advent of digital and social media, but the exponential growth in the use of social media by EU citizens to get and share news has exacerbated the financial and editorial pressures on traditional media outlets.

The traditional media is still trying to adapt to these pressures, including by going onto digital and social media platforms itself to publish and disseminate its journalism. Those EU countries where the state is restricting the independence of the media through a combination of direct political interference, forging alliances with like-minded media owners and using digital and social media to spread their message as well as disinformation are, while unwelcome, an exception.

As the example of Slovakia shows, citizens who oppose the authoritarian shift in their countries can, and have, pushed back and it is possible the governments of Poland and Hungary, for instance, will be removed from office by their electorates in the coming years or that the EU will toughen its stance against anti-democratic practices.

Across the whole EU, the rise of digital and social media has been accompanied by negative developments, including a decline in quality in much media content and the facilitation of abuse and the spread of disinformation that has been used to try to influence key political decisions by EU citizens. But the impact of digital and social media has also had positive effects. It has enabled citizens who feel their views are not fairly reflected or represented in traditional media to have a platform to publish and participate in public debate. The Scottish experience suggests how digital and social media can make a positive contribution to public life, even if its negative aspects, such as trolling and disinformation, will still remain with us.

As for the traditional media across the EU, the change in audience habits and the financial and editorial pressures are not going to diminish. The struggle to adapt to the new and constantly evolving landscape will, by necessity, continue. Some media houses have shown they can thrive, although they tend to be those that either serve a wealthy, educated audience or those that have adapted to the tastes and consumption habits of the social media era. Others will continue to cut costs and, inevitably, quality and seek merger or takeover opportunities, so concentration of ownership will probably increase.

In Scotland, the government has limited options in trying to address these issues. Broadcasting is not a devolved matter and, while Holyrood could introduce a different system of press regulation if it chose to, the kind of regulatory changes that would address the lack of plurality in the media would face stiff resistance from the media, many politicians and parts of civil society, who would portray them as an assault on media freedom. If Scotland were to become an independent country, it would have more freedom of action and it would be interesting to see, for instance, if it introduced rules on foreign ownership to encourage greater diversity in the media.

References

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Cohen, N (2018) ‘How the BBC Lost the Plot on Brexit’, New York Review of Books, 12 Jul 2018, https://www.nybooks.com/daily/2018/07/12/how-the-bbc-lost-the-plot-on-brexit

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Grant, G (2014) ‘Cybernats Unmasked: Meet the Footsoldiers of Pro-Scottish Independence “Army” Whose Online Poison Shames the Nationalists’, Daily Mail, 25 Jan 2014, https://www.dailymail.co.uk/news/article-2545901/Cybernats-unmasked-Meet-footsoldiers-pro-Scottish-independence-army-online-poison-shames-Nationalists.html

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Kanter, J (2016) ‘Former Guardian Editor: Facebook Sucked Up £20 million of Our Online Ad Revenue Last Year’, Business Insider, 5 Sept 2016, https://www.businessinsider.com/alan-rusbridger-blames-facebook-guardian-digital-revenue-2016-9

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Sustainable Development: Challenges and Opportunities

Anton Muscatelli | University of Glasgow

Introduction

The 20th anniversary of Economic and Monetary Union (EMU) in 2019 is a good time to reflect on a remarkable experiment in monetary integration. Most previous examples of supranational monetary unions in history occurred in very different times: different both in terms of global financial integration and capital mobility, and the sophistication of the banking sector and financial markets.

EMU survived the aftermath of the great financial crisis of 2007-2008. The crisis did impact on the eurozone, albeit with a lag of a couple of years. The Greek crisis was particularly acute and led to an active debate whether EMU membership was indeed irrevocable, or countries could be expelled from the monetary union. More recently, there have been very active debates in both the economic and political sphere on how the eurozone should evolve to cope with future stresses and strains.

EMU is often viewed by observers through different, economic and political, lenses. European federalists have always seen the creation of the eurozone as a stepping stone towards a more integrated federal European Union with a significant central fiscal function. If one views EMU through an economic lens, one can examine ways in which the workings and resilience of the union can be improved whilst maintaining it as a supranational construct, without the need for fiscal union, debt mutualisation or permanent fiscal transfers. These two lenses have always intersected. Some economists, even prior to 1999, have argued that EMU stability will at some point require a significant centralised fiscal policy. This debate continues, and the recent eurozone debt crisis has brought it back to the fore.

Scotland’s interests in this area of EU policy are limited at present, as both macroeconomic policy and issues relating to banking and financial regulation and architecture are reserved to the UK. How Scotland relates to this area of EU policy depends critically on Scotland’s future constitutional position, as I consider below.

1. EMU: The EU’s Strategy, Challenges and Opportunities

The EU’s strategy in this area was set out clearly in the Maastricht Treaty, which was signed in December 1991. Although the treaty was not just about monetary union, it set the blueprint for subsequent policy in this area. It was based on the principle of a gradual transition towards monetary union, and on the principle that accession to the monetary union was subject to member states satisfying certain convergence criteria. The treaty was influenced by the European Commission (1989), also known as the Delors Committee Report.

The phasing of transition to monetary union was through three stages. The final stage irrevocably locked national currency exchange rates to the euro, and the European Central Bank (ECB) began its operations, succeeding the European Monetary Institute (EMI). The final stage could have begun before 1 January 1999, but the Economic and Financial Affairs Council (ECOFIN) decided to wait until 1999, the final possible date for EMU stipulated in the Maastricht Treaty.

Economists scrutinised the process of monetary integration and monetary union closely during the 1990s. There is an extensive literature which analysed all of the aspects of the treaty. It is beyond the scope of this chapter to provide a guide to this work, but useful guides to the debates are De Grauwe (2018), Kenen (1995) and James (2012). Most of the analysis by economists focused on the theory of optimum currency areas[1] (OCAs), and whether the prospective members of the monetary union constituted an OCA.

Economists predicted both benefits and costs in the creation of a monetary union. The main costs of monetary union are the loss of a major instrument of macroeconomic policy at national level, as EMU members can no longer set their own monetary policy. National governments also lose the ability to adjust any external imbalances in their trade balance and current account by not being able to use the (nominal) exchange rate as an adjustment mechanism. National governments can only use fiscal policy (within the limits specified by the convergence and stability criteria of EMU) to adjust aggregate demand in their economies.

In contrast, other mechanisms come into play to allow national government to engage in macroeconomic adjustment. With the loss of the nominal exchange rate adjustments, national governments have to rely on wage flexibility and labour mobility to allow changes in national competitiveness (the real exchange rate). Within a monetary union, there is a need for product and labour markets to be more flexible to ensure that individual countries can adjust to any shocks which impact differently on individual eurozone countries. These may either be so-called asymmetric shocks, where demand or supply/productivity shocks impact differently on, say, Germany and France. Or symmetric shocks where there is an impact on the whole eurozone, but where labour and product markets in one country (say Germany) are more flexible in adjusting wages and prices than in another (say Italy or France).

The main benefits of monetary union are set out clearly in European Commission (1990). Some of the benefits come from the elimination of transactions costs, as the costs of exchanging one currency for another are removed. A second benefit comes from the creation of more competitive product markets which benefit consumers, through the elimination of price discrimination. Producers still price differently in different markets, but that becomes much more transparent within a monetary union[2]. Third, the removal of exchange rate uncertainty for businesses can reduce risk, thereby potentially increasing investment and growth.

Do economists, on the whole, think that the current eurozone is an OCA? Arguably opinion is divided[3], but the majority of economists believed that the criteria for admission to the eurozone were interpreted very loosely to allow all candidate EU countries to join in 1999. This caused concerns particularly about the potential of the so-called periphery countries like Spain, Portugal, Italy and Greece (and the accession countries who then joined the euro) to cope with the strictures of nominal and real adjustment with limited macroeconomic instruments – the use of fiscal policy within the limits set by the Stability and Growth Pact (SGP). These sceptics were more optimistic about the ability of the ‘core’ EMU countries (Germany, the Benelux countries, Austria and Finland) to cope with the straitjacket of EMU (see also De Grauwe and Ji 2016). There are many economists[4] who feel that the eurozone has major design failures which need to be corrected (see, for example, De Grauwe 2013). We will turn below to what reforms these EMU-pessimists seek as a way of strengthening the union.

In contrast, a minority of economists and the European Commission have argued that the performance of the eurozone in terms of both nominal and real convergence has progressed as expected (see Buti and Turrini 2015). Their argument is also that, ultimately, for EMU to become more cohesive requires structural convergence; that is, eurozone economies have to become more similar as a result of domestic institutional reforms (see Buti and Sapir 1998). In other words, EMU-optimists point to domestic reforms, combined with further integration of European capital markets as being the source of potential growth in exports and non-traded sectors in periphery countries.

Before looking at some of the debates on future reform in economic and political circles, it is important to look at how the great financial crisis impacted on the eurozone. The crisis found the eurozone unprepared and impacted differently across different eurozone countries. Prior to the crisis, a number of eurozone countries had lost external competitiveness. Some (especially those with large debt-to-GDP ratios like Italy and Greece) had not taken advantage of the pre-crisis growth period to lower their exposure to debt and their fiscal deficits[5]. Some, like Ireland and Spain, had economies which were very exposed to financial services or to property and construction. Between late 2009 and 2012, the eurozone faced what has become known as the European debt crisis.

The ECB focused its initial response largely on trying to ensure financial stability by providing liquidity to the financial system. Some individual economies which were deeply affected by the crisis were able to make major macroeconomic adjustments (eg Ireland and Portugal), but we saw the real possibility of EMU exit or expulsion in the case of Greece. The Greek crisis has been documented elsewhere in detail, and I have argued that the case of Greece exposed serious design flaws in the eurozone which could have precipitated an existential crisis for the eurozone (see Muscatelli 2015).

The EU put a series of financial support measures in place during the crisis, such as the European Financial Stability Facility (EFSF) and European Stability Mechanism (ESM). The ECB also contributed to solving the crisis by engaging in a series of measures to lower interest rates via asset purchase programmes such as long-term refinancing operations (see Constâncio 2017). The ECB’s measures were similar to the quantitative easing (QE) programmes of other central banks like the US Federal Reserve. The ECB’s QE programmes were initially more modest, but it accelerated these provisions of liquidity to the banking sector especially in the second half of 2011.

As the eurozone debt crisis reached its apex in September 2012, the ECB announced the Outright Monetary Transactions (OMT) programme to deal with the acuteness of the crisis. Despite QE and a very easy monetary policy stance, a number of periphery countries in the eurozone were experiencing increasing spreads over German Bunds, and a liquidity crisis emerged. This is typical of a self-fulfilling debt crisis: under low interest rates, periphery countries were solvent, but with rapidly rising interest rates in unstable debt markets the sustainability of the public finances of a number of eurozone countries was called into question by markets. The OMT programme was what some financial commentators named a ‘big bazooka’: an instrument to prevent markets from questioning the potential sustainability of the public finances of those periphery countries. OMT provided conditional liquidity insurance by promising outright purchases of sovereign bonds with maturities up to three years. The condition was that eurozone countries could meet domestic economic conditions laid out by an ESM agreement. Without actually being deployed, the threat of the OMT ‘big bazooka’ allowed the ECB to restore credibility to the eurozone, and any concerns of ‘redenomination risk’ – that countries might be forced to abandon the monetary union.

The crisis gradually subsided after 2012. Economic growth returned in the periphery countries and structural budget deficits improved. Ireland and Portugal exited their bailout programmes in 2014. The Spanish government did not receive financial support. Instead, its ESM package was aimed at a fund for banking sector recapitalisation.

Therefore, what are the design flaws of the eurozone and how could EMU be reformed in future? It is important to stress that some reforms have already been outlined and planned by the EU institutions. In December 2012, driven by the European debt crisis, the four presidents of the Council, European Commission, ECB and Eurogroup published a report with a roadmap for reform (European Council 2012). This involves three stages. First, ‘ensuring fiscal sustainability and breaking the link between banks and sovereigns.’ This focused on various elements, such as stronger fiscal governance and coordination of national economic reform; and a drive towards a banking union within the eurozone with single supervision, harmonising national systems of deposit guarantees and direct bank recapitalisation through the ESM. Second, a phase which would see the completion of a common resolution authority for swift bank resolution decisions, and stronger co-ordination of structural policies, including the potential for temporary support outside the multiannual financial framework (MFF). Third, post-2014, an increased central ‘shock absorption function’ for EMU through a central fiscal capacity to deal with country-specific shocks, and potentially a common debt instrument (Eurobills).

The Four Presidents’ report only made limited impact. There was progress in the banking union area, with a new structure for prudential supervision of banks and a single resolution mechanism to deal with failing banks. There is now a single supervisory mechanism and the ECB sits above a network of national banking supervisors.

In 2015, the Five Presidents’ report was published (European Commission 2015), with the addition of the President of the European Parliament to the original four. The proposals in this report are arguably less ambitious and recognise some national governments’ political resistance to the proposals in the 2012 Report. The main resistance lies in developing a central EU fiscal policy capacity to deal with the macroeconomic shocks. A number of countries, notably Germany and some of the original ‘core’ economies, are concerned that this will lead to debt mutualisation across Europe and to permanent fiscal transfers[6] across the eurozone. The Five Presidents’ report attempts to avoid these concerns by saying explicitly that this is not the system which is envisaged.

The 2015 report also seeks the completion of the banking union through a common deposit insurance scheme, complementing national schemes. It also proposes a bridge financing mechanism to bolster the single resolution fund recommended in the 2012 report. It recommends boosting the development of a capital market union across the eurozone to accelerate the cushioning of asymmetric shocks: currently cross-border capital flows are lower in the EMU than in large single countries. Finally, on fiscal policy, it speaks of a European Fiscal Board to improve the monitoring of fiscal discipline, but for political reasons it is quite circumspect in whether this board will provide greater coordination of fiscal policy.

The key problem for the eurozone is that these latest proposals are probably not enough to overcome the design flaws of EMU, some of which have been evident from the beginning and some of which have been exposed by the great financial crisis and the European debt crisis.

In essence, there are three unresolved problems in the eurozone. First, unlike central banks in single countries, the ECB does not have a normal lender of last resort function which supports the sovereign: there are multiple sovereigns[7]. Second, it does not have a central fiscal function which is sufficient to deal with persistent risk-sharing problems. Third, when monetary policy is relatively impotent, such as when interest rates reach zero and QE has limited effectiveness, there is likely to be a need for a coordinated fiscal response. which is most effectively delivered by a central fiscal function.

Furthermore, some of the political debates around eurozone reforms are calling into question the extent to which risk sharing around the financial architecture of the eurozone has to be combined with greater market discipline. Grant (2018) outlines the extent to which Emmanuel Macron’s plans for the eurozone might gain sympathy in Berlin, given Merkel’s personal support for Macron. But there are real concerns within Germany and other ‘core’ countries that measures such as the EU-wide deposit insurance scheme must be matched by greater market discipline. This would return the eurozone closer to its pre-crisis position, which avoids bailing out countries in difficulty. It would involve banking systems such as Italy’s reducing non-performing loans disincentivising banks in high-debt countries holding more of their sovereign debt when the ECB offers greater support to the banking sector, as happened during the European debt crisis.

A recent paper by 14 German and French economists (Bénassy-Quéré et al 2018) has sought to contribute to this discussion by suggesting a cautious return to the original Maastricht no-bailout principles. It suggests a limited element of risk-sharing and transfers and an element of debt restructuring. However, their contribution has been received with concern both within the French government, and by economists like Messori and Micossi (2018) and Tabellini (2018). In particular, Tabellini notes that the debt restructuring measures suggested by Bénassy-Quéré et al could be counterproductive because they raise the perceived risk of default by debt markets. He also criticises the suggestion by Bénassy-Quéré et al that domestic banks should not act as shock-absorbers during a debt crisis, as happened in 2012 in a number of eurozone countries.

Overall, this debate illustrates the major issue with the eurozone. The economic solution is to address the three unresolved problems listed above. Tabellini (2017) illustrates a possible agenda for some reforms. Other economists would go much further (see Baldwin and Giavazzi 2016). But comprehensive reform is not politically feasible at present, because it would involve both a willingness by stronger eurozone economies to expose themselves to greater fiscal risks and long-run transfers, and weaker ones to expose themselves to the imposition of stronger constraints on their fiscal policy by a central eurozone-wide fiscal authority through a ‘fiscal compact’. It is an issue which even the traditionally strong Franco-German axis in the EU cannot address fully. It is clear that, at this point in the electoral cycle, the Franco-German relationship is essentially weaker because Merkel cannot deliver major eurozone reforms at the end of her term of office, despite the quid pro quo from Macron that he would be willing to deliver on major labour market reform in France. Macron appears to understand this, though disappointed that the ideas he has been promoting have not been taken up.[8]

2. Scotland’s Interests, Contribution and Influence

Scotland’s interests in the area of the eurozone are limited at present, because the issues raised by eurozone reform are entirely about macroeconomic policy and banking and financial system regulation and architecture. These are matters which are currently reserved to the UK parliament. Current EU member states whose sub-national/devolved authorities have debt-issuing powers relate to EU policy through their national fiscal compact.

Therefore for this section, let’s look at three different constitutional scenarios.

First, suppose Scotland were to become independent at some point in the future. Clearly there are a number of valid options available to Scotland regarding its choice of currency and monetary policy institutions, should it choose this path. This includes the suggestion currently being put forward of a transition to an independent Scottish currency at an optimum time, while continuing to use the pound sterling in the interim period until a series of tests are met and institutions are set up.

An independent Scotland, if it chooses to join the EU, would need to look at how the eurozone architecture fits into its ambitions for its own macroeconomic framework, as all new EU members have had to do following EU enlargement. If it chose to join the eurozone, clearly it would need to consider how these reforms impact on the way in which it seeks to develop its own fiscal rules and its national ambitions.

One dimension is that many of the provisions of the eurozone, including many of the current and proposed reforms, sit outside the main European treaties. This is an issue of some concern to the EU institutions, as the EMU reforms have developed in a piecemeal fashion as a response to the European debt crisis.

What if an independent Scotland chose, as is more likely, to be inside the EU but not to join the eurozone? One interesting aspect here is that some other EU members which retain their own currency will wish to buy into elements of the new EMU architecture, around banking supervision and mutual support in the case of a future financial crisis. Scotland would need to ensure that it keeps a watching brief over EU and EMU reform, to ensure that it fully understands the implications of future policy changes. A recommendation would be to ensure that Scotland and its political institutions engage actively with the important area of EMU reform. Scotland should consult those smaller countries which have retained their own currencies to consider how they seek to respond to some of the eurozone banking and financial architecture reforms.

Next, let’s look at a different scenario where Scotland remains within the UK. Let’s assume that the UK exits the EU, but does not implement the hardest of Brexits and seeks a closer association with the EU through a very deep and comprehensive trade deal. It is entirely possible that a deal on financial services in a future UK-EU association will require the UK to shadow many aspects of EU regulations. At present, the UK as non-eurozone EU member has been a major bulwark against European treaty reform which encompasses eurozone reform. With the UK leaving the EU, only smaller economies would remain as non-eurozone members within the EU. This may actually facilitate a future discussion around European treaty reform, once the major EU countries have reached some consensus on how far eurozone reform can go. In this scenario, Scotland’s political institutions also need to keep a watching brief on how EU reforms evolve, given Scotland’s importance and weight in the UK financial sector. The current debate on frameworks between Scottish and UK governments will also be crucial here.

Finally, suppose the UK remains in the EU and Scotland remains in the UK. In this case, Scotland should urge the UK to encourage the eurozone to reform in terms of developing a central fiscal function. In any case, this would help to stabilise the EU, and would move the Union towards one which has more stable concentric circles. There would be a core of the eurozone which is more highly integrated in terms of macroeconomic policy, but which maintains an opportunity for some EU economies (Sweden, Denmark, the UK and potentially new accession countries) to maintain their macroeconomic autonomy whilst deepening trade links.

My view is that major eurozone reform, involving a very significant central fiscal or fiscal coordination function, is essential to address future asymmetric shocks. The ECB cannot be seen as the only bulwark against such shocks. There is also a real need to continue the process of structural reform and convergence within the eurozone to ensure less heterogeneity in the eurozone economies. The banking union will also need to be completed. In this area, the UK’s and Scotland’s interests are totally aligned: whatever our position in the EU or outside it, both should wish to see successful eurozone reform to ensure macroeconomic stability at the centre of Europe. Even if there is no appetite as part of UK or Scottish EU membership to participate in the eurozone, its fortunes will continue to impact significantly on our economy.

References

Baldwin, RE and Giavazzi, F (eds) (2016) ‘How to Fix Europe’s Monetary Union: Views of Leading Economists’ (eBook), VoxEU, 12 Feb 2016, https://voxeu.org/content/how-fix-europe-s-monetary-union-views-leading-economists

Bénassy-Quéré, A, Brunnermeier, M, Enderlein, H, Farhi, E, Fratzcher, M, Fuest, C, Gourinchas, PO, Martin, P, Pisani-Ferry, J, Rey, H, Schnabel, I, Véron, N, Weder di Mauro, B and Zettelmeyer, J (2018) ‘Reconciling Risk Sharing with Market Discipline: A Constructive Approach to Euro Area Reform’, Policy Insight No 91, Centre for Economic Policy Research, Jan 2018, https://cepr.org/sites/default/files/policy_insights/PolicyInsight91.pdf

Buti, M and Sapir, A (eds) (1998) Economic Policy in EMU: A Study by the European Commission Services, Oxford: Clarendon Press

Buti, M and Turrini, A (2015) ‘Three Waves of Convergence: Can Eurozone Countries Start Growing Together Again?’ VoxEU, 17 Apr 2015, https://voxeu.org/article/types-ez-convergence-nominal-real-and-structural

Campos, NF and Macchiarelli, C (2018) ‘Symmetry and Convergence in Monetary Unions’, LSE Europe in Question Discussion Paper No 131/2018, Mar 2018, http://www.lse.ac.uk/european-institute/Assets/Documents/LEQS-Discussion-Papers/LEQSPaper131.pdf

Constâncio, V (2017) ‘Role and Effects of the ECB Non-Standard Policy Measures’,

Craig Wilson | Scottish Council for Voluntary Organisations

‘Being good is easy, what is difficult is being just.’ – Victor Hugo

Most recently, and perhaps best, embodied by the European Pillar of Social Rights (the Pillar), the European Union has long taken a strong and principled stance on the issue of tackling inequalities within and between member states.

Proclaimed by the European Parliament, the Council and the Commission at the social summit for fair jobs and growth on 17 November 2017, the Pillar enshrines its principles in three chapters: equal opportunities and access to the labour market; fair working conditions; and social protection and inclusion.

In the words of European Commission President Jean-Claude Juncker: ‘Today we commit ourselves to a set of 20 principles and rights. From the right to fair wages to the right to health care; from lifelong learning, a better work-life balance and gender equality to minimum income: with the European Pillar of Social Rights, the EU stands up for the rights of its citizens in a fast-changing world.’ (Reuters 2017)

By approaching the issue of inequality in this way, the Pillar goes beyond the most basic understanding of inequality as an income/wealth issue and looks to the variety of supports and protections needed to allow people to more fully participate in our society. The Pillar also places emphasis on health inequalities, gender inequality and inequality of opportunity (European Commission 2017a).

Is There a European Model?

Despite the existence of the Pillar, it is open to argument as to whether there is a distinct ‘European model’ towards tackling inequality. On the one hand, there is compelling evidence which demonstrates the marked divergence between inequality rates within the EU28 and the USA since 1994 – lending weight to the notion (Bruegel 2018). On the other hand, it is clear that most of the competences and legislative powers available to tackle inequalities rest at local, regional and national levels, and that there are clear differences in the approaches pursued by different member states.

On the subject of income inequality alone, the key drivers of change vary from nation to nation. As pointed out in a 2017 European Semester thematic fact sheet on addressing inequalities: ‘While unemployment is a factor in inequality in most EU countries, in some cases (such as Bulgaria, Cyprus, Estonia, Lithuania and Latvia) the weak redistributive effect of taxes and benefits plays a key role. In others, high income inequality is the result of unemployment combined with an uneven distribution of market incomes (Greece, Spain and Portugal). In the UK and Ireland, market incomes are also extremely unequally distributed. However, the British and Irish welfare states do an above-average job in reducing pre-tax and benefit inequalities… resulting in inequality outcomes close to the EU average, in terms of disposable income.’ (European Commission 2017b)

In other areas of inequality, we would find an equally diverse picture. For example, the gender pay gap across Europe ranges from less than 8% in Belgium, Italy, Luxembourg, Poland, Romania and Slovenia to more than 20% in Austria, the Czech Republic, Germany, Estonia and the United Kingdom (Eurostat 2019). Both observations neatly underline the point that European nations are eclectic in their makeup and methods and, simultaneously, undermine the notion that nation states are not free to pursue their own domestic approaches to what are challenges faced around the world.

Squaring this circle – with a view to identifying a European model to tackling inequality – is not easy and, certainly, there is no simple definition or description of a European approach. However, in exploring why, in contrast to other comparable economies, inequality in the EU28 has fallen while the powers to tackle inequalities remain firmly under national control, it could be argued that the answer lies camouflaged in a middle ground, and that the EU is central to the solution.

It could be said that the EU acts like a sort of dark energy, playing a crucial, but near invisible or, more accurately, overlooked role in establishing a philosophy towards tackling the inequalities which permeate the Union. This philosophy is subsequently backed with the provision of designated funds and an array of ‘soft governance’ instruments and legislative approaches, all of which assist national, regional and local government – along with partners in civil society – to address inequalities at the ground level (European Economic and Social Committee 2018).

Creating an ethos and designing the tools to support this across such a disparate Union is no mean feat. However, there are two central and identifiable ways in which the EU has managed to achieve this which are worthy of brief explanation.

Human Rights and Protections

As set out in the EU Charter of Fundamental Rights (the Charter), the EU sees one of its core roles as to strengthen the protection of fundamental rights’ for EU citizens. These fundamental rights touch on social security, health care, disability, gender, children, the workplace and education (European Parliament 2001). If viewed as the building blocks to creating a more equal society, then the Charter must be considered as integral to encouraging and enforcing the European model it is contested exists.

Beyond enshrined rights, it is easy to find examples where the EU has been the driving force behind positive social developments which are conducive to tackling inequality. To use one example, the principle of equal pay, as enshrined in Article 119, resulted in many nations having to modernise their domestic law to meet new progressive criteria. According to Jill Rubery, the impact of this legislative change was felt especially keenly in the UK, and went beyond the issue of just pay: ‘Other elements of EU legislation have had a more indirect impact on gender pay equality. These indirect effects come from directives requiring equal treatment in employment and training, equal treatment for part-time workers, protection of employment for pregnant women and rights to maternity and parental leave. Much of this legislation has had a stronger impact on the UK than many other EU member states. This is because legal employment rights were relatively underdeveloped in UK national legislation prior to the passing of EU directives on these topics.’ (Rubery, Grimshaw and Figueiredo 2005)

Progressive change is, by no means, restricted to the UK or gender-related issues. However, this point clearly illustrates that European level developments have caused member states to march at a pace they otherwise would not have chosen.

European Social Funds

The European Social Fund (ESF) aims to enhance employment and fairer life opportunities and is ‘the EU’s main tool for helping people to get a job (or a better job), integrating disadvantaged people into society and ensuring fairer life opportunities for all’ and allows funds to be accessed to: promote employment and support labour mobility; invest in education, skills and life-long learning; and promote social inclusion and combat poverty (fi-compass 2015). For the period 2014–2020 alone, the European Social Fund will have disposed of almost €90 billion to support these aims.

To breathe life into the aims and ambitions laid out in the Social Pillar, for the period 2021-2027 the Commission proposes dedicating a further €100 billion to the European Social Fund Plus, which will continue to support key investments that benefit EU citizens and build a more social Europe. New regulations will require that at least 25% of the ESF+ shared management strand be allocated to fostering social inclusion.

In the words of the European Commissioner for employment, social affairs, skills and labour mobility, Marianne Thyssen: ‘Europe wants to empower people. We put our money where our mouth is… to make sure [people] have the right skills, to make sure they have modern social protection adapted to new forms of work, and to show solidarity with those who need it most.’ (European Commission 2018)

From the supranational level, where priorities and values are decided (by unanimity), this funding is subsequently allocated to member states and filtered to the national and regional levels, before ultimately finding its way to its intended location via public bodies, private companies and civil society organisations. Though often complex in its operation, the successful delivery of such an ambitious scheme on such a grand scale, with clear and concise objectives (which can be translated to every locality), is hugely impressive. Estimated to provide support to 15 million people across Europe every year, the fund could be viewed as ‘the long arm of the EU’ which has reached legislatures and communities in every state, nation and region of the EU – helping to establish and nurture a European model to tackling inequality.

The Right Thing to Do?

While many would like to believe (and may be right in doing so) that the EU acts in a principled and compassionate way when it comes to these matters, there are also more hard-headed reasons for tackling inequality which might motivate EU actions. Tolerating high levels of inequality erodes trust in public institutions, fuels populist movements and leads to calls for more ‘economic nationalism’ (Wolf 2017). Each of these outcomes is anathema to the ideals of a European Union which relies on strong institutions, political stability and economic collaboration. To reduce inequality, therefore, is to (at least partly) fight this three-headed-monster.

On paper, it appears Europe is on a good course. The principles in the (still fresh) Social Pillar are laudable; the support to be provided via the Social Fund Plus is considerable; the commitment to human rights remains steadfast and legislative developments continue to be broadly progressive. Yet, despite this, Europe faces many great challenges which threaten to set levels of inequality soaring, undermine institutions and potentially weaken the rights, protections and social ambitions (and complimentary funds) of the European Union as they stand.

Eurosceptic populist parties, which wish to distance their respective nations from the EU now hold power – or are on the rise – in many member states, hoping to gain MEPs at the European Parliament elections this May (Khan 2019). Coupled with the loss of a major member of the EU (in the form of Brexit), the shockwaves from the 2007 crash, the eurozone crisis, the banking crisis, the emergence of new global economic power and an incipient global trade war, there is much to occupy the EU and much that is beyond its control.

Assuming that populism can, in some ways, act as a barometer of inequality and social exclusion, there is an argument that the current model either is not working, or has become obsolete. One need only look at the anti-EU sentiment in the ‘leave’ voting regions of Cornwall and Wales in the UK – which receive some of the highest proportions of European structural and investment funds in the UK (€1000 per head of population), to see that existing approaches to tackling pervasive inequality in these communities is not producing the results expected (Dunford 2016).

It is conceivable that the current situations can be overcome, or will resolve themselves naturally. The European Union is a robust one and has grown and thrived in the face of adversity before, and it would be alarmist to claim it will not continue in the same vein. Equally, it would be folly to ignore what appear to be warning signs of unrest, and a renewed focus on tackling inequality and social exclusion within the EU should be high on the agenda when looking at how this overall situation can be improved.

Change at a European level takes time. Therefore it is useful to look at what can be tweaked and amended within the current arrangements to improve outcomes in a relatively short space of time. For civil society organisations, there are two key asks of European policy-makers. Firstly, to further shift focus from growth and economic measurement and, secondly, to better utilise the dynamism, expertise and ability of civil society organisations in the delivery of programmes and the design of legislation and policies.

To tackle inequality, reduce poverty and allow people to live fulfilling lives, the answer no longer simply lies in having a job. Across the EU, there has been a steady rise in the number of employed people at risk of poverty – growing from 8.3% in 2010 to 9.6% in 2016 (Eurostat 2018). Likewise, economic growth does not necessarily translate into better standards of living for individuals and communities – unless a greater focus is placed on creating an ‘inclusive’ economy.

We know that people contribute to society in different ways at different times. They are driven by a need to support themselves and their families, share things with other people around them and do something meaningful with their lives. Even if employment was guaranteed to provide adequate income, it would not necessarily fulfil these other needs. By focusing all of our efforts on getting as many people as possible, into work as quickly as possible, and by measuring success only in jobs and growth created, many people get left behind both economically and in terms of quality of life.

It is in this space that a closer relationship with civil society organisations across Europe could provide fresh thinking, offer greater engagement with marginalised groups and act as a fertile seedbed for new ideas. By encouraging cross-border learning, by finding new channels to unlock and utilise civil society expertise and by providing dedicated EU level support to these organisations, European policy-makers have an unparalleled opportunity to target resources in new and effective ways to tackle inequality between and within the European Union.

Scotland’s Interests, Contribution and Influence

Tackling inequality is not a simple or linear process. There are complex reasons why inequality exists and solutions are multifaceted. Given the universal nature of inequality, it is a reality that public bodies and civil society organisations from across the EU have been working hard for a number of years to tackle social exclusion, create employment opportunities and remove the barriers to participation that many people encounter in their lives. It therefore seems logical that a process of sharing and learning would be beneficial and that Scotland should play a full part in this – asking the questions: What worked and why? What didn’t work and why? What can Scotland learn from others? What can others learn from Scotland?

According to polling company Ipsos MORI, in January 2019 concern about poverty and inequality reached record levels in the UK, becoming the third greatest concern (after Brexit and the NHS), with 21% of the population viewing it as a serious issue (the highest score since 1997). In Scotland, the strength of feeling was even greater, with 35% of people identifying poverty and inequality as a serious issue (Ipsos MORI 2019).

This sentiment around poverty and inequality is well justified and both the UK and Scotland – while wealthy countries – are beset with inequalities. The UK has a very high level of income inequality compared to other developed countries (Equality Trust 2017). There are stark divides between social and age groups (Sowels 2018), and health inequalities are deep rooted. In the most affluent areas of Scotland, for example, men experience 23.8 more years of good health and women experience 22.6 more years compared to the most deprived areas (NHS Health Scotland 2019).

As adroitly put in the Christie Commission: ‘[Scotland] is a paradoxical tapestry of rich resources, inventive humanity, gross inequalities, and persistent levels of poor health and deprivation’ (Scottish government 2011).

However, as there appears to be a ‘European model’ for tackling inequalities, so too is there is a unique ‘Scottish model’ or approach towards tackling inequalities. This is comfortably facilitated by Scotland’s devolved position within the UK – including separate legal and education systems, local authority structures and public service institutions. Arguably, Scotland also has a different political identity, with the governing party of Scotland for 12 years (the Scottish National Party) having supplanted the major political parties that typically dominate UK politics (Labour and the Conservatives).

Within this atmosphere, Scotland’s civil society organisations (collectively known as the third sector) hold a prominent position. All political parties in Scotland have displayed a strong willingness to work with the third sector and, since the establishment of Scotland’s devolved parliament in 1999, governments of various political make-ups have been keen to engage and support organisations to help meet mutual ambitions – particularly around tackling poverty and inequality.

As the current Scottish government cabinet secretary for communities and local government, Aileen Campbell puts it: ‘Charities play a vital role in our society, from supporting individuals and communities, to informing policy at a national level. They are key to us achieving our ambition of creating a fairer and more prosperous country.’ (Weakley 2019) Central to this (widely held) view is the belief that government does not have the knowledge, the reach or the flexibility to perform as the third sector does in certain areas. The third sector is therefore actively encouraged to contribute to policy-making processes, granted funding to carry out its work and awarded contracts to deliver services – services that have often gone through a process of co-design between government and the third sector.

Scottish government attitudes towards creating a more socially inclusive and equal society are to be commended and fit neatly with the third sector’s desire to see a fairer society. This attitude is perhaps best embodied by Scotland’s ‘National Performance Framework’, which lays out a series of ambitions, outcomes and indicators that are used to measure Scotland’s progress to becoming a country that values and pursues well-being, dignity, fairness, equality and respect. Policy decisions and impacts are measured against national outcomes and key indicators which act as guiding lights for government (and organisations in all sectors), as they take a more robust and fully-rounded approach to tackling the root causes of inequality in our society (Scottish government 2018).

One good example of this approach is ‘Community Jobs Scotland’, an employment programme designed and run by the Scottish Council for Voluntary Organisations (SCVO), but fully funded by the Scottish government. This unique scheme creates jobs for vulnerable and disadvantaged young people in the third sector. Employees go through an interview process and receive all the same contractual benefits as other staff in the organisation. They are also paid at least the national minimum wage and contracts are stable for a year. Unlike some other programmes, employees are treated with dignity and parity (Butler and Halliday 2017).

Community Jobs Scotland is unique in the way it targets those furthest from the labour market, helping many people who otherwise would never be given a chance or would not successfully engage with statutory services. Furthermore, the scheme helps charity organisations build capacity through the recruitment of new staff, providing the added bonus of ensuring that every job created offers a community benefit. With youth unemployment a pressing concern in many European countries, we as SCVO are confident that many of the features of Community Jobs Scotland could be successfully replicated with the support of experienced staff and a remodelling to suit local circumstances.

Similarly, SCVO also designed and now manages the Scottish government ‘Community Capacity and Resilience Fund’, which awards small grants of £1000–5000 to community groups to test new and creative approaches to tackling poverty. Through third sector networks and with limited bureaucracy attached to grants, over £1.5 million has now been allocated to community groups to tackle the causes and effects of poverty at a grassroots level, with impressive and life-changing results (SCVO 2017).

These two specific programmes, and the relationship between civil society and government, demonstrate an approach to tackling poverty and inequality which could quite easily be emulated by other EU nations keen to tackle social exclusion and inequality at the community level. Indeed, there is much the EU itself could gain as it looks to develop new means of tackling inequality. Certainly, there is a strong desire within Scotland’s third sector to share this knowledge and support development with our friends in Europe – as we look to learn from the experiences of sister organisations across the continent.

At the time of writing, Scotland looks set to leave the European Union through Brexit, if it goes ahead. Despite this, civil society in Scotland has expressed a great willingness to continue working closely with European partners, regardless of political change. To what extent existing relationships and practices can be protected and to what extent new relationships and opportunities will form remains unknown. Certainly, SCVO will attempt to remain part various European networks – although we may no longer meet the criteria to do so.

As the aphorism goes: You don’t know what have, until it’s gone’. While exchange programmes are not widespread in the third sector – and European networks are perhaps not as developed as we would like, where collaboration has taken place, this has always been hugely successful and of mutual benefit. As Europe faces great challenges (old and new), it surely needs these collaborations more than ever.

While it would require careful design and resourcing, there is a strong case for the European Union to explore new options to more directly engage with and fund civil society organisations to tackle inequality – instead of relying on managing authorities of existing funds to distribute a share to civil society organisations and national governments to feed in views to decision-making processes. Looking beyond household-name NGOs and attempting to open up new channels with more localised charity and voluntary bodies would be a strong start. By establishing a dedicated European civil society fund, or by opening up and supporting new channels of communication and engagement between and within European civil society, the EU could benefit from fresh ideas and impactful approaches to tackling inequality in Europe.

At a time when civil society in Scotland looks set to face new barriers to its own participation and adapts to a reduction in human and financial resources, it is in this very area and at this time that we hope the European Union will be able to reach out the hand of friendship to Scotland to facilitate the continuation of these important idea and knowledge exchanges. Perhaps through new agreements about participation based not on membership but, instead, alignment with EU directives, standards and financial contribution, Scotland could continue to play its part – learning from colleagues and offering our own ideas and experiences.

SCVO believes that by keeping the door open to these invaluable partnerships, communities in Scotland and across Europe can continue to benefit from the collective experience, passion and dynamism of civil society, as we continue to combat and reduce inequality in our shared European society.

References

Butler, S and Halliday, J (2017) ‘Poundland “Gets Jobless to Work for Free under Government Scheme”’, The Guardian, 20 Aug 2017, https://www.theguardian.com/business/2017/aug/30/poundland-work-free-government-scheme-dwp

Darvas, Z (2018) ‘European Income Inequality Begins to Fall Once Again’, Bruegel, 30 Apr 2018, http://bruegel.org/2018/04/european-income-inequality-begins-to-fall-once-again

Dunford, D (2016) ‘Mapped: Where in the UK Receives Most EU Funding and How Does This Compare with the Rest of Europe?’, The Telegraph, 1 Jun 2016, https://www.telegraph.co.uk/news/2016/06/01/mapped-where-in-the-uk-receives-most-eu-funding-and-how-does-thi

Equality Trust (2017) ‘The Scale of Economic Inequality in the UK’, https://www.equalitytrust.org.uk/scale-economic-inequality-uk

European Commission (2017a) European Pillar of Social Rights, 18 Oct 2017, https://ec.europa.eu/commission/sites/beta-political/files/european_pillar_of_social_rights.pdf

European Commission (2017b) ‘European Semester Thematic Factsheet: Addressing Inequalities’, 22 Nov 2017, https://ec.europa.eu/info/sites/info/files/file_import/european-semester_thematic-factsheet_addressing-inequalities_en_0.pdf

European Commission (2018) ‘EU Budget: A New European Social Fund Plus’, 30 May 2018, http://ec.europa.eu/esf/main.jsp?catId=67&langId=en&newsId=9118

European Economic and Social Committee (2018) ‘Implementing the European Pillar of Social Rights’, 30 Mar 2018, https://www.eesc.europa.eu/sites/default/files/files/qe-01-18-612-en-n.pdf

European Parliament (2001) The Charter of Fundamental Rights of the European Union, 21 Feb 2001, http://www.europarl.europa.eu/charter/default_en.htm

Eurostat (2018) ‘In-work Poverty in the EU’, 16 Mar 2018, https://ec.europa.eu/eurostat/web/products-eurostat-news/-/DDN-20180316-1

Eurostat (2019) ‘Gender Pay Gap Statistics’, Feb 2019, https://ec.europa.eu/eurostat/statistics-explained/index.php/Gender_pay_gap_statistics

Fi-compass (2015) ‘The European Social Fund’, https://www.fi-compass.eu/sites/default/files/publications/ESF_The_european_social_fund_EN.pdf

Ipsos MORI (2019) ‘Worry about Brexit and the EU Rises Once More, While Concern about Poverty and Inequality Reaches Record Levels’, 7 Jan 2019, https://www.ipsos.com/ipsos-mori/en-uk/worry-about-brexit-and-eu-rises-once-more-while-concern-about-poverty-and-inequality-reaches-record

Khan, M (2019) ‘Italy’s Salvini to Emerge as Biggest Winner in EU Elections – Poll’, Financial Times, 18 Feb 2019, https://www.ft.com/content/1b92dd76-3362-11e9-bb0c-42459962a812

NHS Health Scotland (2019) ‘What Are Health Inequalities?’, 14 Feb 2019, http://www.healthscotland.scot/health-inequalities/what-are-health-inequalities

Rubery, J, Grimshaw, D and Figueiredo, H (2005) ‘How to Close the Gender Pay Gap in Europe: Towards the Mainstreaming of Pay Policy’, Industrial Relations Journal, 36: 3, 184–213, http://www.unionhistory.info/equalpay/roaddisplay.php?irn=785

Scottish Council for Voluntary Organisations (2017) ‘Community Capacity & Resilience Fund: Round Two Evaluation Report’, 1 Nov 2017, https://storage.googleapis.com/scvo-cms/wp-content/uploads/2018/03/Community-Capacity-Resilience-Fund-Round-2-Report.pdf

Scottish government (2011) Commission on the Future Delivery of Public Services, 1 Jun 2011, https://www.gov.scot/binaries/content/documents/govscot/publications/publication/2011/06/commission-future-delivery-public-services/documents/0118638-pdf/0118638-pdf/govscot%3Adocument

Scottish government (2018) Scotland’s National Performance Framework, 25 Jun 2018, https://nationalperformance.gov.scot/what-it

Sowles, N (2018) ‘An Up-to-Date Account of Economic Inequalities in Britain since 2008’, LSE Politics and Policy, 12 Jan 2018, https://blogs.lse.ac.uk/politicsandpolicy/an-up-to-date-account-of-economic-inequalities-in-britain-since-2008

Strupczewski, J and Piper, E (2017) ‘EU Leaders Proclaim European Social Standards to Woo Voters’, Reuters, 17 Nov 2017, https://uk.reuters.com/article/uk-eu-summit-social/eu-leaders-proclaim-european-social-standards-to-woo-voters-idUKKBN1DH065

Weakley, K (2019) ‘Scottish Government Launches Review of Charity Law’, Civil Society, 8 Jan 2019, https://www.civilsociety.co.uk/news/scottish-government-launches-review-of-charity-law.html

Wolf, M (2017) ‘The Economic Origins of the Populist Surge’, Financial Times, 27 Jun 2017, https://www.ft.com/content/5557f806-5a75-11e7-9bc8-8055f264aa8b

Alison Hunter | Economic and Public Policy Consultancy
Fabian Zuleeg | European Policy Centre

The EU’s Strategy, Challenges and Opportunities

Elusive EU Industrial Policy

Industrial policy at EU level has long been a contentious issue. Coming from separate national traditions and practices, its main thrust remains limited to curtailing national distortions to the single market, for example in relation to national champions or state aids for domestic industries. While creating – more or less – an EU level playing field, this has not led to a more proactive EU industrial strategy, in no small part caused by member state resistance.

Consequently, what exists at EU level, beyond statutory ‘control’ and external trade elements, is limited in ambition and scope. The New Industrial Policy Strategy (European Commission 2017) is more a collection of policy actions that affect industry than a strategy with a vision and concrete goals. Recent positive and proactive developments to identify priorities – such as the creation of ‘Important Projects of Common European Interest’ and the identification of strategic value chains (European Commission 2019) are, nonetheless, limited in ambition, and lack a clear direction for coordinated implementation.

Many EU horizontal policies undoubtedly impact on the competitiveness of European industry, including the single market framework, structural and investment funds, research and innovation funding (and post-2020 proposals for a stronger ‘missions’ orientation) or trade policy (as discussed further in chapter 17 of this report). But there are still many shortcomings in these cross-cutting enablers. The single market remains incomplete, including in policy fields crucial for industry, such as energy/electricity and digitalisation. Research and innovation funding is still heavily focused on academic creation of (fundamental) research and not at boosting EU industrial commercial performance, through the creation of new products, services and business models.

While this more limited approach to EU industrial policy has served the EU well in the past, the environment in which EU industry is competing is radically evolving. Transformative technology is rapidly changing how industry operates and competes in a global environment. Future success is increasingly measured by how businesses engage, inter alia, with artificial intelligence, digitalisation, algorithms, the internet of things, big data, machine learning and blockchain. Emerging technologies require new skills and are transforming the future of work. In addition, the EU has committed to ensuring greater sustainability, including the fight against climate change, requiring, inter alia, an energy transition, the creation of a circular economy and support for green innovation – albeit that appetite for mainstreaming sustainable innovation remains questionable. Overall, it is questionable whether the EU’s current industrial policy framework can support the radical industrial transition facing EU industry.

At the same time, globalisation is entering a new phase. Increasingly, value chains are becoming global. While this provides opportunities for European industry, it also enhances the competitive challenge. In emerging technologies, the EU’s competitive position is losing ground, with success highly concentrated in more prosperous EU geographies and connected through global value chains. This creates a growing (global) trend towards ‘winners take all’, with sharp contrasts between the winners and losers across countries, regions, sectors and groups of workers. The politics of those feeling or actually left behind has also fuelled the rise of anti-globalisation and euroscepticism.

While global exchange and interdependency will continue to intensify, the international competitive environment is deteriorating, with trade wars and ‘my country first’ strategies. In this environment, EU trade policies struggle to create reciprocity across a global playing field. Competitors’ industrial policies, not restrained by the same framework as the EU’s internal market, are causing strong market distortions.

Competition for global resources, challenges to the global rules-based system and government intervention to promote own industries and geopolitical goals pose specific challenges for the EU coming from economies like China, but also from traditional economic allies such as the US and potentially, post-Brexit, the UK. The concept of EU ‘strategic autonomy’ – the capacity of Europe to retain autonomous choices, avoiding strategic dependency – will be one of the key debates of the coming years.

A New Direction for EU Industrial Policy?

The EU is now at a crossroads, with an increase in voices calling for an ambitious industrial strategy at EU level. Unusually, some smaller northern member states are pushing hard for change, in part because some bigger member states are starting to take action, as for example evidenced by Germany’s recent announcement of its own industrial strategy. But the overall direction is still unclear. One possible approach, discussed in the wake of the unsuccessful French-German railway partnership (the Commission’s prohibition of the Siemens-Alstom merger), is a loosening of EU restrictions, giving greater scope for national/bilateral action. But this risks undermining current common structures available at EU level (such as competition and state aid control), leading to fragmentation of the single market and an inconsistent external economic policy. This will do little to support EU industry in an increasingly complex global environment. But a more sustainable and strengthened approach through a common EU strategy would require member states pooling powers and competences.

This would also require a fundamental rethink of some of the (successful) instruments of the past, such as competition policy, while preserving the principles of a competitive internal market. An uncompetitive domestic (EU) environment would pose significant risks for EU industry. Moreover, any action that would distort the level playing field towards the interests of (some) European companies would be a new pathway to protectionism. This would have implications for Europe’s global role, with the EU undermining rather than supporting the rules-based global trading system.

Decisions taken about the EU’s future industrial policy will most likely be deferred until after the European Parliament elections, together with EU budget allocations, which will underpin the future direction. The current impasse presents something of an opportunity cost, but there is equally no certainty that future decisions about the EU’s industrial strategy will improve prospects for EU industry. However, at least a more ambitious industrial policy is now on the EU agenda. At the March 2019 European Council, EU leaders concluded that ‘in view of the importance of a globally integrated, sustainable and competitive industrial base, the Commission is invited to present, by the end of 2019, a long-term vision for the EU’s industrial future, with concrete measures to implement it.’ (European Council 2019)

The Need for a Bolder EU Industrial Response

Will the EU respond to an increasingly hostile and complex global trading environment through creating the right conditions for European industrial ‘champions’ to emerge? And can it do so with a continued commitment to supporting a level playing field system within and outside the EU?

The current European Commission has shown limited appetite to go beyond the present scope of industrial policy, in part hindered by the deep ambivalence of the member states. The new institutional cycle has to be seen as an opportunity to establish a bolder, stronger and coordinated response across the member states, with far-reaching implications for areas such as trade, competition, research, investment screening and taxation. A failure to grasp this opportunity will most likely encourage (large) member states to go ahead with unilateral actions, with significant risks of single market fragmentation.

Interaction of EU Industrial Policy with Brexit

To review the impact of these EU developments on Scotland, it is crucial to discuss the implications of Brexit. As part of the European Union, both Scotland and the UK have been governed by a limited but consistent industrial policy, with common framework conditions, including the EU single market and trade policies. In the context of an increasingly hostile global trading environment, the UK’s competitive position – as a relatively isolated actor – could become increasingly vulnerable. Brexit also opens up the possibility of divergence between the UK and the EU, either by accident or design. Furthermore, within the UK, it is likely that there will be a level of enforced convergence across the UK, despite devolution, as some powers returning to the UK (such as external trade policy) are seen by the UK government to rely on internal consistency (the so-called UK internal market).

Any increased nationalisation of industrial policy within the EU would present a challenge for the UK. Trying to deal with increasing divergence within the EU from the outside would be problematic. Reciprocal level playing field conditions with effective governance could well prove to be an asset under this scenario. But even if there is a common EU approach, the impact on the UK will depend on the exact nature of the long-term relationship between the UK and the EU. The more integrated the UK is in the EU single market, the less divergence there is likely to be, with the EU insisting on level playing field conditions and an associated governance structure to enforce and implement these provisions.

In commercial policy, a customs union effectively precludes the UK from running an independent trade policy. But the outcome might also be different. In the event of a more decisive economic separation between the EU and the UK, the relationship will be characterised by competition and even rivalry. The UK will be treated as a third country, but might well respond with a more mercantilist approach, seeking to undercut the EU.

This matters for Scotland, since it implies that any future strategic industrial policy response must be conditioned on Scotland’s relationship with the EU, as part of, or outside, the UK.

Scotland’s Interests, Contribution and Influence

Scotland’s Industrial Policy Context

Scotland’s approach to domestic industrial policy has been characterised by a combination of reserved and devolved powers. The UK has – until the 2016 Brexit vote – shown lukewarm interest in industrial policy, favouring low-key, ‘horizontal’ measures to support the general business environment. Successive UK governments have tended to advocate softer innovation policy support measures rather than an active, ‘vertical’ industrial policy approach. Scotland has broadly mirrored this UK stance, and has not actively advocated for a Scottish (or UK) industrial policy.

Until now, and whether by accident or design, this has been rather consistent and compatible with the EU industrial policy model. Certainly there were few, if any, tensions between these multi-governance levels concerning industrial policy. However, we argue below that the relative ‘comfort’ of the EU’s softer industrial policy model (underpinned by a strong functioning single market) has masked a range of challenges and removed possible frictions, which are now being played out as Scotland gears up for the UK’s possible divergence from the EU.

Within the EU/UK industrial policy framework, Scotland has been an active supporter of the EU direction of travel. In some areas, Scotland has played a more visible role than its UK counterparts, for example, in championing greater EU industrial collaboration to address global competition. This has been highly visible in the areas of renewable energy, circular economy and embracing new forms of joint industrial innovation to create value chain opportunities for Scottish/EU businesses. Scotland’s active engagement in these areas has, no doubt, been boosted by the Scottish institutional governance set-up (eg through the enterprise agencies), facilitating a ‘matching’ of mutually reinforcing efforts to support Scottish/EU industry collaboration. The demise of the English regional development agencies (RDAs), which largely wiped out an English innovation and business policy support presence in Brussels, has arguably created further space for Scotland to occupy at the EU level.

As both the EU and the UK gear up to embrace a new global trading environment (including convergence/divergence ambiguities between the EU and the UK), this raises questions about the ‘voice’ and capacity of Scotland to generate a clear and specific industrial policy position.

There has been a palpable change in both the tone and dynamic of Scotland’s EU industrial policy engagement since the 2016 UK vote for Brexit. While not driven by choice, this approach has equally not been driven by a strategic decision to ‘pull back’. Rather, it reflects a sensitivity to the current climate of reduced ‘legitimacy’ for Scottish-EU engagement. In this respect, Scotland remains a willing EU partner, but is less notably engaged in leading or championing an EU industrial agenda. Clarity of purpose and direction matter for EU engagement. Currently, Scotland can provide very little of this due to the remaining uncertainties concerning the future relationship between the UK (and Scotland) and the EU.

Equally, with the recent development of a UK industrial strategy, Scotland stands in the unenviable position of ensuring sufficient benefits for Scottish industry, associated with the UK strategy’s direction and priorities, while seeking to minimise future divergence with an EU direction of travel. The competitor/collaborator spectrum is further complicated by the possibility of constitutional change in Scotland, should there be a future vote for independence.

This poses significant challenges for Scotland’s industrial policy direction. ‘Muddling through’ might appear the least risky policy response until further clarity emerges. Certainly, any industrial policy framework must be generated with a clear understanding of how Scotland can and should seek to position itself on the industrial policy convergence/divergence spectrum with both the UK and the EU. Until this emerges, there is a considerable opportunity cost to how Scotland supports its business sector. Characterised by significant ambiguity concerning future industrial ‘framework’ conditions, Scotland finds itself in a position of relative weakness.

At one end of spectrum, the threat of a no-deal Brexit could make Scotland more dependent on the UK’s approach to industrial policy. At the other end (which looks increasingly unlikely), any exit from Brexit could see Scotland strongly focused on realigning efforts with an EU direction of travel. Assuming a post-Brexit deal can be delivered, Scotland will need to perform a very dynamic balancing act in the coming period. How will Scotland’s devolved powers serve its industrial needs under a UK outside of the EU, compared to how these powers were exercised within the EU?

The current uncertainty surrounding Scotland’s future poses threats to its longer-term economic stability. Business confidence, investment attractiveness and access to a high-quality skills base are strong influences on industrial performance. Brexit has played a significant role in undermining these factors.

Strengthening Scotland’s Industrial Structure and Policy Resilience

Scotland demonstrates historical compatibility with key elements of the EU’s industrial policy model. Its track record in pioneering approaches to economic development, financial instruments to support the small-to-medium enterprise community and its consistent position in championing the EU’s regional innovation agenda are widely recognised and showcased as good practice examples across EU geographies and with EU institutional actors.

Despite the current Brexit-imposed impasse, Scotland has been able to capitalise on reserves of goodwill concerning Scottish-EU industrial policy engagement. Many stakeholders remain supportive of Scotland’s continued contribution. Additionally, Scotland’s long-term investment in EU-level platforms and networks – which have provided significant benefits to Scottish innovation actors across the innovation community – continues to provide a voice for Scotland in the EU debate concerning future EU innovation and industrial policies. For the sharing and learning dimension of this to remain beneficial, Scotland will need to ensure that the structures in place at Scottish/EU levels remain adaptable and sufficiently sensitive to the needs of EU partners, not least in the context of future changes to EU industrial policy. To this end, the Scottish effort would benefit from greater coherence and coordination across the Scottish industrial and innovation community.

Scotland has further promoted its ‘open for business’ commitment during the Brexit negotiation period, in an attempt to counterbalance the investment uncertainty perpetuated by Brexit. Its Scottish government Innovation and Investment hubs across five European capitals are testament to this commitment (Scottish government 2019). It remains to be seen how these investments can be sufficiently aligned and networked to support improved coherence and reduce fragmentation across industrial and innovation policy efforts.

The strength, sustainability and confidence of Scotland’s industrial ‘voice’ within the EU are under significant pressure, further perpetuated by its uncertain future relationship with the EU. The further Scotland diverges from the EU position – for example, as part of a potentially more aggressive UK industrial policy – the more likely Scotland (as part of the UK) will become an industrial rival to the EU, rather than a partner.

Notwithstanding the significant challenges which the current political environment poses for Scotland, there is a need for a deeper examination of industrial policy-related issues within Scotland which are likely to put further pressure on its future industrial performance, regardless of wider framework conditions. Scratching beneath the surface reveals a range of weaknesses and vulnerabilities which have been present in Scotland for quite some time, and where policy responses are long overdue. These include:

  • The future resilience of Scotland’s industrial growth sectors (Prelec 2018) – how these are defined and communicated has remained largely unchanged for more than a decade, with a corresponding lack of clarity regarding how they will/are already transforming to adapt to global trends such as digitalisation. This poses challenges for the long-term future of these sectors. The 2018-2020 Economic Action Plan (Scottish government 2018) places a necessary focus on investing in Scotland’s advanced manufacturing future, while revealing very little about how this connects to specific strengths and ambitions underpinning the economic structure. The international ambition of the plan remains largely confined to Scotland’s excellent research performance, with limited focus on the need to boost international industrial competitiveness.
  • The Scottish economy has been persistently challenged by subdued growth and stagnant productivity (Fraser of Allander 2018), and is expected to be further challenged by the constraints on immigration caused by Brexit – this performance has deep roots and has been perpetuated by a lack of effective response across the board in Scottish economic development and innovation policy. Scotland’s front-runner status in these areas is quite firmly rooted in the past, and there has been an absence of political leadership, debate and analysis across Scotland to generate a fresh and progressive approach to supporting the modernisation of industry. The proposed ‘missions’ orientation for the Scottish National Investment Bank offers a promising route to redirect efforts and to leverage public funds with private investment, giving the necessary boost to Scottish industry to invest in long-term, technology-driven innovations. It sets out a vision for the reframing of how to create value (economic and social), with industry at the core of this effort. Making a success of this will require significant upgrading to the wider investment environment (including governance and culture), within the context of Brexit (and Scotland’s future trading relations with the rest of the world).
  • Scotland’s economic structure and geographical challenges (including peripherality) lack relevant policy responses – for example, Scotland has no visible industrial clustering model, widely recognised as a mechanism to boost innovation capacity within and across industry sectors. In addition, Scotland’s speed of response to challenges such as diversification of the oil and gas industry and business digitalisation/Industry 4.0 has been sluggish and hesitant, further perpetuating business uncertainty and sending conflicting messages to international industrial partners and the investment community regarding the business attractiveness of Scotland.
  • Despite Scotland’s stance in the EU industrial policy sphere, it continues to adopt a rather inward-focused, conservative policy-making ‘culture’, which has prevented a more business-driven model to industrial and innovation policy. It has instead been characterised by incremental and cosmetic ‘upgrades’ to economic development and the innovation support framework, at a time when EU and global counterparts have been taking bolder steps to transform their public policy support frameworks.
  • The UK government’s industrial strategy, itself a significant departure from an historically non-interventionist approach to industrial policy, is difficult to reconcile with a devolved structure which until recently has been characterised by an EU-focused centre of gravity. Amid the many announcements from the UK government about boosting industrial investment, its industrial sectors are vying for investment attention while pondering their future viability if they do not ‘fit’ with the emerging direction of travel. There is considerable concern being raised about how industry – beyond the most advanced sectors – can engage and/or be supported to improve their performance.

The UK government has announced plans to replace European structural and investment funds with a UK ‘Shared Prosperity Fund’, although details on this remain far from clear. There is no certainty that the proposed focus of the new fund – reducing inequalities between communities across the UK – will provide Scotland with continued industrial innovation investment support (which was previously available through European structural and investment funds). It is imperative that the current Scottish parliament consultation on the new proposed UK fund does not overlook the risk posed by an industrial investment gap.

The Scottish government’s response to engaging with the UK’s proposals (for both an industrial strategy and Shared Prosperity Fund) has been underwhelming, even when taking into account the lack of clarity. Arguably, this is at least partially caused by the uncertainty of its post-Brexit trading status, but this is exacerbated by a more profound inability to clarify Scotland’s industrial ambitions. This reactive position is unlikely to stand Scotland in good stead for the future, regardless of either Scotland or the UK’s post-Brexit status vis-à-vis the EU. Post-Brexit, external economic policies will become even more important both in relation to the EU and to the rest of the world. Should related powers be repatriated to the UK, any distinct Scottish ‘voice’ will struggle to be heard.

Securing Scotland’s Industrial Future in Turbulent Times

The impasse outlined above is multifaceted. The combined forces of a missing macro-level structural ‘compass’ and rather weak domestic industrial policy capacity make it difficult for Scotland to respond to the current environment. While it is regrettable that decision-making power to address this lies outside of Scotland’s competence, being ‘on the back foot’ now will not serve Scotland’s interests well in any future scenario or outcome. Despite the externally-imposed limitations, Scotland can and should address the persistent underperformance of its businesses in relation to productivity, innovation, internationalisation and economic growth.

A more concerted effort is required to generate the momentum and scale for a Scottish ‘response’ to global, EU and UK industrial challenges. With Scotland’s size, a fragmented, outdated and sluggish approach creates a significant opportunity cost, especially in the current climate.

The response needs to address the current limited appetite or ability to move beyond close ‘tracking’ of developments at global, EU and UK levels. Scotland needs to improve significantly its capacity (and influence) to make a proactive contribution to the many strategic debates taking place at EU and global levels concerning industry and trade. Furthermore, this could create the foundations for setting out bolder, strengthened political leadership for Scotland’s future industrial vision.

This should be acted on now, regardless of Scotland’s future relationships with the EU and the UK. It will require new efforts and an upgraded institutional framework to better align Scotland’s industrial community (including science, industry, research, social economy and public policy), as well as its policy and investment frameworks.

This would provide a strong international signal of Scotland’s industrial ambitions and would build on the successful relationships, in which Scotland has invested heavily, at EU level.

References

European Commission (2017) New Industrial Policy Strategy, 18 Sept 2017, https://ec.europa.eu/commission/news/new-industrial-policy-strategy-2017-sep-18_en

European Commission (2019) ‘A Stronger and More Competitive EU Industry: President Juncker Opens 2019 EU Industry Days’, 1 Feb 2019, https://ec.europa.eu/newsroom/growth/item-detail.cfm?item_id=643749

European Council (2019) ‘European Council Meeting Conclusions – 21-22 March 2019’, EUCO 1/19, https://data.consilium.europa.eu/doc/document/ST-1-2019-INIT/en/pdf

Fraser of Allander Institute (2018) ‘Scottish Budget 2019/20: Issues, Choices and Implications’, University of Strathclyde, Dec 2018, https://cldup.com/pwAqj803hp.pdf

Prelec, T (2018) ‘The Impact of Brexit on Scotland’s Growth Sectors’, SPICe Briefing SB-18-21, Scottish parliament, 20 Mar 2018, https://digitalpublications.parliament.scot/ResearchBriefings/Report/2018/3/20/The-impact-of-Brexit-on-Scotland-s-Growth-Sectors-1

Scottish government (2018) Economic Action Plan 2018-2020, https://economicactionplan.mygov.scot

Scottish government (2019) Policy: Europe – Innovation and Investment Hubs, https://www.gov.scot/policies/europe/innovation-and-investment-hubs

Annalisa Savaresi | University of Stirling
Miranda Geelhoed | University of Strathclyde

The EU’s Strategy, Challenges and Opportunities

The EU is widely regarded as a pioneer in the design and implementation of environmental laws and policies. Given the breadth of this area of EU law – which covers disparate elements, such protected areas, water, waste, chemicals and fisheries – we focus here on selected issues, without attempting to comprehensively review all EU law and policy on environmental matters, which has already been done elsewhere (Austin et al 2018, SULNE 2016). This chapter, therefore, discusses the EU’s strategies on climate change, air quality and the protection of agroecosystems, looking at the opportunities and limits to Scotland’s leadership in these fields after Brexit.

Climate Change

By 2020, EU member states are committed to collectively achieve a common set of targets, namely: a 20% cut in greenhouse gas emissions from 1990 levels, 20% of EU energy consumption from renewable sources and 20% improvement in energy efficiency. To deliver on these targets, the EU has adopted a set of laws and policies, included in the ‘2020 Climate and Energy Policy Framework’. The framework includes: the EU Emissions Trading Scheme (ETS), which regulates emissions from energy intensive industries across member states; the Effort Sharing directive (ESD), which regulates emissions from sectors such as agriculture, forestry and transport, which are not included in the EU ETS; and a portfolio of measures promoting renewable energy, energy efficiency, and carbon capture and storage.

Some of these instruments are heavily EU-centric, meaning that governance largely relies on the EU’s bureaucratic apparatus, rather than that of member states. The EU ETS, for example, is one of the most heavily centralised pieces of EU legislation, attributing a key role to EU institutions. In contrast, other pieces of EU climate legislation, such as the ESD, afford a higher degree of discretion to member states, setting targets they should meet, but leaving them to determine how to achieve these.

The EU is largely on track to achieve the targets set under the 2020 Climate and Energy Policy Framework (European Environment Agency 2018). However, the ETS has struggled to generate an adequate carbon price. More generally, much more needs to be done in order to put the EU on course to adequately contribute to achieve the global temperature goal enshrined in the 2015 Paris Agreement.

The recently adopted EU 2030 Climate and Energy Policy Framework – to be implemented between 2021 and 2030 – aims to: cut the EU’s greenhouse gas emissions by at least 40% from 1990 levels, and to achieve at least 32% of renewable energy consumption and at least a 32.5% improvement in energy efficiency. The framework reforms existing elements, including the EU ETS, and introduces new ones. For example, the recast of the renewables directive[1] includes for the first time provisions asking member states to enable consumers and communities of citizens to produce renewable energy (Savaresi 2019). The 2030 framework also provides that emissions and removals from land use, land-use change and forestry (LULUCF) contribute to the achievement of the EU 2030 emission reduction target.[2] However, the LULUCF regulation has been fiercely criticised by civil society, due to concerns associated with the carbon integrity of this specific sector. The regulation is now at the centre of a lawsuit before the Court of Justice of the European Union (CJEU), asking for its abolition.[3] Therefore, while the EU has pioneered a brand new approach to a sector that is presently scantly regulated across the developed world, its experience has been rather controversial (Savaresi and Perugini 2019).

In another case pending before the CJEU, applicants are seeking the annulment of the three EU legal acts at the heart of the EU’s 2030 climate change policy framework, for lack of adequate climate ambition.[4] At the political level, the EU’s overall climate ambition has also been questioned by a group member states which have called for an increase of the 2030 targets, to align with the recent report by the Intergovernmental Panel on Climate Change on the need to keep global warming below 1.5°C (IPCC 2018).

Air Quality

The EU is party to the main international law treaties concerning air quality, alongside its member states. In order to comply with these treaties, the EU has adopted some of the world’s most stringent air quality standards, including on long-range transboundary air pollution and ozone-depleting substances. The main EU law instruments in this area regulate cumulative pollution (most saliently, through the ‘Air Quality directive’)[5] and set caps on national emissions (National Emission Ceilings directive).[6] The implementation of EU law has resulted in marked improvements in air quality across member states. However, in recent years, urban air quality has fallen below EU standards in several member states, triggering the exercise of enforcement action by the European Commission (2018a).

EU law, furthermore, includes a plethora of product standards, with direct relevance to air quality, such as, for example, those concerning emissions from vehicles. Under the current system, national authorities are responsible for checking that vehicles meet EU standards before they can be sold on the single market and should also take corrective and sanctioning action when a car manufacturer breaches those requirements. Directive 2007/46 sets the general framework, whereas regulation (EC) 715/2007 sets the so-called Euro 5 and Euro 6 emissions limits. The latter standards have been at the centre of the ‘Volkswagen scandal’, which led to infringement action against a group of EU member states, which stand accused of failing to provide effective, proportionate and dissuasive penalty systems to deter car manufacturers from breaking the law (European Commission 2016).

Protecting Agroecosystems

Agriculture and forestry cover 72% of land in the EU (European Commission 2011) with significant negative impacts on ecosystem functions, including nutrient cycling, pollination, soil formation, water and climate regulation. The need to protect agroecosystems has only gained recognition under EU law in recent years and, overall, there is still scope for improvement. Particularly relevant is the impact of the EU’s flagship policy on agricultural expenditure: the common agricultural policy (CAP). The CAP consists of two pillars. Pillar I provides for a scheme for direct payments financed through the EU’s general budget: the European Agricultural Guarantee Fund.[9] Pillar II provides for rural development funding that is co-financed by member states and the European Agricultural Fund for Rural Development.[10]

The current CAP, 2014-2020, provides for various measures to enhance the sector’s overall environmental performance (Geelhoed 2016). Under Pillar I, the amount of direct support for farmers is primarily linked to farmed land coverage. These payments however are also conditional on ‘cross-compliance’ with EU law rules on, among others, the environment, climate change, public and plant health and animal welfare – such as the Nitrates directive and the Birds and Habitats directive. Moreover, 30% of the Pillar I budget is reserved for mandatory greening payments linked to action on crop diversification, the upkeep of permanent grassland and ecological focus areas. Lastly, under Pillar II, member states can enact various schemes for rural development to foster agroenvironmental stewardship.

Despite these efforts, the CAP’s environmental performance has attracted much criticism. The mid-term review of the EU biodiversity strategy 2020 (European Commission 2015) found that there has been no measurable improvement in the status of agriculture-related species and habitats. The greatest share of direct payments still goes to landowners, rather than stewards, and the European Court of Auditors found that greening measures have just added a layer of complexity, without enhancing the CAP’s environmental performance (European Court of Auditors 2017). While member states seem to largely agree on the need to reduce bureaucracy in the CAP, they differ on the way to best achieve this and to protect local environments.

The recently published proposals for CAP, 2021-2027 (European Commission 2018b), provide considerably more leeway for member states to decide on the disbursement of payments, through strategic plans that must be approved by the Commission before implementation. The proposals set out to ‘enhance environmental and climate performance’ and recognise for the first time ‘the protection of biodiversity, enhance ecosystem services and preserve habitats and landscapes’ as an objective. However, the proposals place a lot of faith in member states’ ability to prioritise environmental and climate action over production. They also feature a series of shortcomings, including: cuts in funding under Pillar I and II, the continuation of area-based payments, the loss of a minimum requirement for environmental spending under Pillar I and the replacement of cross-compliance rules with national administrative penalties (European Court of Auditors 2018, Hart and Bas-Defossez 2018).

In sum, the CAP has failed to provide a high level of protection for the ecological functions that underpin the food system and support human life and well-being. The upcoming CAP reform provides an opportunity for regulations to be more supportive of good agroecosystem management. A recent report by the International Panel of Experts on Sustainable Food Systems (De Schutter et al 2019) proposes mechanisms to remedy some of the issues highlighted above, whilst also suggesting ways to integrate and better coordinate actions across areas of food governance.

Scotland’s Interests, Contribution and Influence

Climate Change

The UK was one of the first countries in the world to adopt a piece of legislation especially dedicated to climate change. The Climate Change Act 2008 sets the target of an 80% reduction in carbon emissions by 
2050. The act requires the UK government to set carbon budgets to act as intermediate targets toward the 2050 target.

Similarly, Scotland adopted its own piece of climate legislation in 2009. The Climate Change (Scotland) Act 2009 set a target of a 42% reduction in emissions by 2020. Furthermore, the Climate Change (Emissions Reduction Targets) (Scotland) Bill, introduced to the Scottish parliament in May 2018, sets out a 90% emissions reduction target for 2050, with the possibility of adopting a 100% target by 2050. These targets have set Scotland as a global leader for ambition in climate change efforts. The achievement of these targets, both at the Scottish and at the UK level, relies, at least in part, on EU law instruments and governance arrangements.

Around 1200 UK installations are included in the EU ETS, making the UK one of the largest participants to the scheme. The EU ETS presently covers 45% of Scotland’s emissions. Since 2013, the UK has implemented a carbon price floor, to support investment in low-carbon technologies by the largest emitters. The UK’s target under the ESD is to reduce emissions by 16% from 2005 levels. Under EU law, the UK also has a target to achieve 15% of energy consumption from renewable resources.[11] The UK has collectively made good progress in achieving its targets both under the ESD[12] and on renewable energy[13]. The UK and especially Scotland have greatly benefited from measures designed to achieve the UK renewable energy targets. However, the UK government’s recent reform of renewable energy subsidies have undermined further investments in this sector across the board and in Scotland in particular.

In the event of a no-deal Brexit, the UK and Scotland will be faced with the question of how to ensure regulatory continuity concerning installations presently falling within the scope of the EU ETS. The UK government has announced that it would use a carbon tax to determine the price of emissions, in the event of a no-deal Brexit.[14] Concerns have however been expressed about the fact that this carbon tax would almost certainly lower the overall price of carbon.[15] Conversely, the Scottish government has expressed a preference to continue to remain in the EU ETS.[16] It would however be hard for Scotland to remain in the EU ETS, independently of the rest of the UK. While there are no precedents for participation in the EU ETS by non-EU/EEA members, some EU cooperation programmes presently include self-governing territories that are not within the EU, like the Faroe Islands and Greenland (Hartmann 2017). Similarly, Scotland could explore avenues to continue to access EU cooperation programmes, even when the UK will no longer be an EU member state.

After Brexit, the UK will be subjected both to lesser and less enforceable international obligations on air pollution, vis-à-vis EU law. UK business exporting to the EU, however, will need to continue to align with EU product standards – such as those concerning emissions from vehicles or ozone depleting substances (ODS), in order to export their products into the EU.

On ODS, Brexit will entail the loss of some EU governance structures which presently ensure the UK’s implementation of obligations under international law. As seen with the EU ETS, after Brexit the UK will have to come up with its own legal framework to comply with its international obligations on air pollution. For example, urgent action is required on f-gases, as continued reliance on extant EU governance structures after Brexit is simply not an option (House of Commons 2018).

More generally, both the UK and Scotland have recorded poor compliance with EU law on air pollution. This matter has been the centre of a judicial saga that saw the High Court quashing the UK government’s plan for ensuring compliance with the Air Quality directive.[17] Furthermore, in 2018 the EU Commission referred the United Kingdom to the CJEU for failing to respect air pollution limit values. The infringement action aims to address the significant and persistent exceeding of limit values for nitrogen dioxide. The Commission has also opened infringement proceedings against the UK with regard to Volkswagen Group, due to failure to provide effective, proportionate and dissuasive penalty systems to deter car manufacturers from breaking EU vehicle type approval rules.[18]

These cases shed light on a persistent lack of compliance with air pollution standards and on the need to maintain a high level of scrutiny in this area. In this regard, it is important to note how EU law comes equipped with supranational supervision and enforcement machineries that will no longer apply to the UK after Brexit. So while presently members of the public and pressure groups can initiate legal action before UK courts to request compliance with EU law, the EU Withdrawal Act explicitly excludes UK liability to pay compensation to individuals who have suffered loss by reason of failure to implement EU law properly. General considerations concerning enforcement therefore emerge in relation to this, as well as several other areas of EU environmental law (Austin et al 2018).

On air pollution, this oversight gap was specifically emphasised in a 2018 UK parliament report: ‘The government should establish appropriate institutions and agencies to independently enforce air quality requirements. Furthermore, the government should establish in primary legislation a requirement that UK air pollution standards are at least as high as equivalent standards in the EU, and that the relevant enforcement agency must have equivalent powers, standards and enforcement mechanisms as the equivalent agencies in the EU.’(emphasis added)[19]

While the first matter has been taken care of in Scotland, the second remains to be addressed and is at the heart of two public consultations, by the Scottish and UK governments, respectively.[20] The UK government has recently conducted a public consultation on a new air quality strategy,[21] and the Scottish government is expected to launch one soon.[22]

Protecting Agroecosystems

Scotland received more than £3.3 billion under Pillar I for CAP 2014-2021, but these funds can only be spent on direct payments. Under Pillar II, Scotland has more leeway to address its rural development needs. In this regard, Scotland has enacted an agri-environment climate scheme that rewards a broad range of management options, like the dedication of land to seed-bearing crops to benefit farmland birds, or restrictions of grazing times for sheep on moorland (Scottish government 2014b). Also, the Scottish Rural Network (SRN), funded through Pillar II, provides support to community-based initiatives, including environmental projects in rural Scotland. Through the European Network of Rural Development (ENRD), SRN cooperates with other networks and is able to put itself forward as a leader. For example, two Scottish projects were recently nominated for the ENRD’s Rural Inspiration Awards.

Looking beyond agricultural and rural development, Scotland has expressed bold aspirations for the agri-food sector, including the prioritisation of environmental and community aspects of food (Scottish government 2014a) and the delivery of world leadership in green farming (Scottish government 2015). In 2016, the Scottish government announced its ambition to build a ‘good food nation’ and explore the potential for a statutory framework on food (Scottish government 2016). Scottish civil society has used the opportunity to call upon the government to become a European and world-leader by taking a framework and rights-based approach to food (Rose 2017). The consultation on a ‘good food nation’, launched in December 2018, proposes a framework that embeds ‘processes for ensuring that the substance of the right to food has effect’ (Scottish government 2018a). The proposed new legislation would require public authorities to publish statements of policy on food, ensure the implementation of international obligations and underpin a collaborative and joint approach to delivery of a ‘good food nation’.

It follows from the above that there is ambition in Scotland to protect agroecosystems. These aspirations go beyond agriculture only, to include the wider food system. Yet, heavy reliance on voluntary agri-environmental schemes may be insufficient to bring about substantial food system change (Morgera et al 2017). Moreover, current proposals for a ‘Good Food Nation’ bill lack substantive obligations, specific targets and indicators of success, as well as clear links between agricultural policy and food policy, through agroecological principles. In this regard, Scotland could learn from experiences in other countries. For example, the French ‘law for the future’ (loi d’avenir)[23] is framed around agroecological principles – however, it has also received some criticism for its technocratic focus and continuous support for intensification (Crosskey 2016).

After Brexit, there may be opportunities for Scotland to redirect payments and replace CAP rules to achieve its environmental ambitions. Yet, Scotland’s policy will be crucially informed by the UK’s approach on funds, to be determined by the Treasury. It is unclear what the total amount of support available for farmers will be after 2022, or how funds will be distributed. The UK Agricultural bill proposes to replace area-based payments with a system of ‘public money for public goods.’ However, the bill fails to link agriculture to broader questions of food production, and an amendment suggesting a more explicit guarantee for financial assistance for agroecological farming was voted down. Moreover, the bill primarily applies to England and the Scottish government has resisted the inclusion of any provisions on Scotland. The Scottish government is yet to make a decision on how to spend funds, with recent proposals largely suggesting the continuation of CAP structures until 2024 (Scottish government 2018b).

Conclusion

The EU has attempted to show leadership on air pollution. While its air pollution standards are world-leading, their implementation could be improved, although the EU is largely reliant on member states’ action in this connection. The UK is a case in point: the recent ClientEarth litigation and Volkswagen scandal have eloquently shown how world-leading standards alone are insufficient to deliver the desired environmental outcomes. They also provide a good example of the enforcement gap that will affect several areas of environmental law after Brexit, which has been flagged as a serious concern by several experts, both in the UK and in Scotland.

On climate change, the EU has been a pioneer in the design and implementation of novel instruments to stimulate the reduction of emissions, such as the EU ETS, and, more recently, the LULUCF regulation. The implementation of these schemes has been complicated and the EU has certainly much more to do in order to deliver on the climate ambition required by the Paris Agreement. Conversely, the UK and Scotland have shown leadership by pioneering the adoption of national climate change legislation, which has inspired other countries in the world to follow a similar approach. Achieving the targets enshrined in UK and Scottish law, however, rests on the use of EU schemes, such as the EU ETS, which will no longer service the UK after Brexit. Both administrations need to address this gap. The matter of the enforcement of legislation and the lack of adequate remedies to challenge governmental inertia after Brexit applies also in this sector.

With regard to the protection of agroecosystems, the EU’s regulatory action can be regarded as an example of environmental integration. Despite ambition ‘on paper’, the EU’s standards such as the greening measures under the CAP have lacked positive environmental impacts. Scotland has shown leadership in the implementation of rural development pillar of the CAP. There might be opportunities after Brexit to better target legislation to protect the Scottish environment. Yet, much is dependent on continued availability of funds.

Ongoing and forthcoming public consultations on environmental principles, air quality and legislation for a good food nation provide important opportunities for stakeholder input to make sure Scotland stays on track. While maintaining international and EU obligations is crucial, and high EU environmental standards are important, there are opportunities for the UK and Scotland to exercise leadership after Brexit.

References

Austin, L, Cardesa-Salzmann, A, Hughes, J, Gemmell, C, Reid, CT and Savaresi, A (2018) Environmental Governance in Scotland after Brexit: Report, Scottish government, 1 Jun 2018, https://www.gov.scot/publications/report-roundtable-environment-climate-change-environmental-governance-scotland-uks-withdrawal

Crosskey, P (2016) ‘New Law, Contested Agroecology – France’s Loi d’Avenir’, Agricultural and Rural Convention (ARC 2020), 4 Feb 2016, http://www.arc2020.eu/a-new-law-a-contested-agroecology-frances-loi-davenir

De Schutter, O, Jacobs, N, Clément, C and Ajena, F (2019) Towards a Common Food Policy for the European Union, iPES Food, Feb 2019, http://www.ipes-food.org/pages/CommonFoodPolicy

European Commission (2011) The EU Biodiversity Strategy to 2020, http://ec.europa.eu/environment/nature/info/pubs/docs/brochures/2020%20Biod%20brochure%20final%20lowres.pdf

European Commission (2015) The Mid-Term Review of the EU Biodiversity Strategy to 2020, 2 Oct 2015, http://ec.europa.eu/environment/nature/biodiversity/comm2006/pdf/mid_term_review_summary.pdf

European Commission (2016) Car emissions: Commission opens infringement procedures against 7 Member States for breach of EU rules

European Commission (2018a) Air quality: Commission takes action to protect citizens from air pollution, 17 May 2018, http://europa.eu/rapid/press-release_IP-18-3450_en.htm

European Commission (2018b) Proposal for a Regulation of the European Parliament and of the Council establishing rules on support for strategic plans to be drawn up by Member States under the Common agricultural policy (CAP Strategic Plans) and financed by the European Agricultural Guarantee Fund (EAGF) and by the European Agricultural Fund for Rural Development (EAFRD) and repealing Regulation (EU) No 1305/2013 of the European Parliament and of the Council and Regulation (EU) No 1307/2013 of the European Parliament and of the Council, COM(2018) 392 final, 1 Jun 2018, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=COM%3A2018%3A392%3AFIN

European Court of Auditors (2017) ‘Greening: A More Complex Income Support Scheme, Not Yet Environmentally Effective’, Special Report No 21/2017, 12 Dec 2017, https://www.eca.europa.eu/en/Pages/DocItem.aspx?did=44179

European Court of Auditors (2019) ‘Concerning Commission Proposals for Regulations Relating to the Common Agricultural Policy for the Post-2020 Period’, Opinion No 7/2018, 7 Nov 2018, https://www.eca.europa.eu/en/Pages/DocItem.aspx?did=47751

IPCC (2018) ‘Global Warming of 1.5°C: An IPCC Special Report on the Impacts of Global Warming of 1.5°C Above Pre-Industrial Levels and Related Global Greenhouse Gas Emission Pathways, in the Context of Strengthening the Global Response to the Threat of Climate Change, Sustainable Development, and Efforts to Eradicate Poverty’, Special Report, Intergovernmental Plan on Climate Change, Oct 2018, https://www.ipcc.ch/sr15

Geelhoed, M (2016) ‘A Legal Perspective on the Value of Scotland’s EU Membership for the Agro Environment’, Policy Brief No 4, Strathclyde Centre for Environmental Law and Governance, Sept 2016, https://www.strath.ac.uk/media/1newwebsite/departmentsubject/law/strathclydecentreforenvironmentallawandgovernance/pdf/brexit/Policy_Brief_No._4,_September_2016.pdf

Hart, K and Bas-Defossez, F (2018) ‘CAP 2021-27: Proposals for Increasing Its Environmental and Climate Ambition’, Institute for European Environmental Policy, Nov 2018, https://ieep.eu/publications/cap-2021-27-proposals-for-increasing-its-environmental-and-climate-ambition

Hartmann, J (2017) ‘Scotland’s Relationship with the EU after Brexit: Lessons from the Faroes’, European Futures, University of Edinburgh, 29 Mar 2017, https://www.europeanfutures.ed.ac.uk/article-4731

House of Commons (2018) ‘UK Progress on Reducing F-gas Emissions’, HC 469, Environmental Audit Committee, 25 Apr 2018, https://publications.parliament.uk/pa/cm201719/cmselect/cmenvaud/469/46902.htm

Morgera, E, Cardesa-Salzmann, A, Geelhoed, M, and Ntona, M (2017) ‘Contribution of the EU Birds and Habitats Directives to Nature Protection in Scotland’, Policy Brief No 7, Strathclyde Centre for Environmental Law and Governance, Mar 2017, https://www.strath.ac.uk/media/1newwebsite/departmentsubject/law/strathclydecentreforenvironmentallawandgovernance/pdf/brexit/Policy_Brief_No._7,_March_2017.pdf

Rose, L (2017) ‘Are There Any Good Food Nations Out There?’, Nourish Scotland, 31 Jan 2017, http://www.nourishscotland.org/wp-content/uploads/2017/01/Any-Good-Food-Nations-out-there.pdf

Savaresi, A (2019) ‘The Rise of Community Energy from Grassroots to Mainstream: The Role of Law and Policy’, Journal of Environmental Law, 2019(0): 1–24, https://academic.oup.com/jel/advance-article-abstract/doi/10.1093/jel/eqz006/5369190

Savaresi, A and Perugini, L (2019) ‘The Land Sector in the 2030 EU Climate Change Policy Framework: A Look at the Future’, Journal for European Environmental & Planning Law, https://dspace.stir.ac.uk/handle/1893/29251

SULNE (2016) ‘The Implications of Brexit for Environmental Law in Scotland’, Cardesa-Salzmann, A and Savaresi, A (eds), Scottish Universities Legal Network on Europe, Dec 2016, https://sulne.files.wordpress.com/2016/12/environment-paper-sulne-20161214.pdf

Scottish government (2014a) Recipe for Success: Scotland’s National Food and Drink Policy, Becoming a Good Food Nation, 18 Jun 2014, https://www.gov.scot/publications/recipe-success-scotlands-national-food-drink-policy-becoming-good-food

Scottish government (2014b) United Kingdom – Rural Development Programme (Regional) – Scotland (Scottish Rural Development Programme (SRDP) 2014 – 2020), 12 Dec 2018, https://www2.gov.scot/Resource/0054/00544562.pdf

Scottish government (2015) The Future of Scottish Agriculture: A Discussion Document, 19 Jun 2015, http://www.gov.scot/Publications/2015/06/6695

Scottish government (2016) A Plan for Scotland: The Scottish Government’s Programme for Scotland 2016-2017, 6 Sept 2016, https://www.gov.scot/publications/plan-scotland-scottish-governments-programme-scotland-2016-17

Scottish government (2018a) Good Food Nation: Consultation, 21 Dec 2018, https://www.gov.scot/publications/good-food-nation-proposals-legislation

Scottish government (2018b) Stability and Simplicity: Proposals for a Rural Funding Transition Period, 20 Jun 2018, https://www.gov.scot/publications/stability-simplicity-proposals-rural-funding-transition-period

[1] Directive (EU) 2018/2001, Recast Renewables Directive, 11 Dec 2018, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2018.328.01.0082.01.ENG [2] Regulation (EU) 2018/841, LULUCF Regulation, 30 May 2018, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=uriserv:OJ.L_.2018.156.01.0001.01.ENG [3] See EU Biomass Legal Case, Save Forests, Save the Climate, http://eubiomasscase.org [4] See People’s Climate Case, Climate Action Network Europe, https://peoplesclimatecase.caneurope.org [5] Directive 2008/50/EC, Air Quality Directive, 21 May 2008, https://eur-lex.europa.eu/legal-content/en/TXT/?uri=CELEX:32008L0050 [6] Directive 2001/81/EC, National Emission Ceilings Directive, 23 Oct 2001, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32001L0081 [9] Regulation (EU) No 1306/2013, CAP Horizontal Regulation, 17 Dec 2013, https://eur-lex.europa.eu/legal-content/en/ALL/?uri=CELEX%3A32013R1306 [10] Regulation (EU) No 1305/2013, Rural Development Regulation, 17 Dec 2013, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A32013R1305 [11] See <https://assets.publishing.service.gov.uk/government/uploads/system/uploads/attachment_data/file/671187/Updated_energy_and_emissions_projections_2017.pdf> [12] See:< https://www.eea.europa.eu/themes/climate/trends-and-projections-in-europe/trends-and-projections-in-europe-2017/progress-towards-member-states-greenhouse> [13] See < https://www.eea.europa.eu/themes/climate/trends-and-projections-in-europe/trends-and-projections-in-europe-2017/progress-towards-member-states-renewable> [14] See: < https://www.gov.uk/government/publications/carbon-emmisions-tax/carbon-emmisions-tax> [15] ‘UK to use carbon tax for emission prices in a ‘no deal’ Brexit scenario’ | Financial Times, 2018: (2018, October 12). Financial Times. https://www.ft.com/content/3510a3c2-ce4b-11e8-9fe5-24ad351828ab [16] See <http://www.parliament.scot/parliamentarybusiness/report.aspx?r=11740&mode=pdf> [17] Court of Justice of the European Union PRESS RELEASE No 153/14 Luxembourg, 19 November 2014 Judgment in Case C-404/13 The Queen, on the application of ClientEarth v The Secretary of State for the Environment, Food and Rural Affairs; R (on the application of ClientEarth) v Secretary of State for the Environment, Food and Rural Affairs [2015] UKSC 28; R(ClientEarth (No 2)) v Secretary of State for Environment, Food And Rural Affairs [2016] EWHC 2740 (Admin); R(ClientEarth (No 2)) v Secretary of State for Environment, Food And Rural Affairs; ClientEarth (No.3) v Secretary of State for the Environment, Food and Rural Affairs [2016] EWHC 2740 (Admin)] [18] See:< http://europa.eu/rapid/press-release_IP-18-3450_en.htm> [19] Fourth Report of the Environment, Food and Rural Affairs Committee, Fourth Report of the Environmental Audit Committee, Third Report of the Health and Social Care Committee, and Second Report of the Transport Committee of Session 2017–19 (2018), para 27 [20] See the public consultation on environmental governance after Brexit, by the UK Government: < https://consult.defra.gov.uk/eu/environmental-principles-and-governance/> and by the Scottish Government < https://www.gov.scot/publications/consultation-environmental-principles-governance-scotland-4/> [21] <https://consult.defra.gov.uk/environmental-quality/clean-air-strategy-consultation/> [22] <https://www.gov.scot/news/tackling-air-pollution/> [23] Loi d’Avenir pour l’Agriculture, l’Alimentation et la Forêt (13 October 2014) LOI n° 2014-1170

Global and Neighbourhood Questions for the EU

Daniel Kenealy | University of Edinburgh

Introduction

This chapter explores some of the EU’s priorities within its Common Foreign and Security Policy (CFSP) and its Common Security and Defence Policy (CSDP). It is a challenging time for EU leaders facing Russian revanchism, ongoing instability in the EU’s southern neighbourhood and questions about the commitment of the United States to European security. The EU continues to face the internal challenge of forging consensus and common positions within the CFSP and encouraging greater defence collaboration within the CSDP. Brexit exacerbates the situation, as the UK is both a leading foreign policy power and a heavyweight defence player. Scotland has little capacity or power to act meaningfully in these policy areas, given foreign policy is not devolved. Were Scotland to become a nation state and secure membership of the EU, it could draw on the successful strategies of other small states and potentially adopt a number of different roles within the EU.

The Challenges Facing the EU

The EU has sought to forge common foreign, defence and security policies for decades. Attempts to coordinate foreign policy amongst EU member states date back to the European Political Cooperation initiative of the 1970s. It took on more institutionalised form throughout the 1990s, as successive EU treaties created new structures and roles. In defence, the EU took its first major step in the aftermath of the Balkans crises of the 1990s. The St Malo Declaration of December 1998, led by Tony Blair and Jacques Chirac, saw the launch of a European Security and Defence Policy, which has morphed into the contemporary CSDP. Despite failing to meet many of the defence goals set at St Malo, the EU has launched 37 missions under the auspices of the CSDP, some civilian, some military and others mixed (Smith 2017). The EU has constructed a military headquarters and staff. Today, the High Representative of the EU for Foreign Affairs and Security Policy is a senior position, double-hatted as a vice president of the European Commission, and coordinates the work of numerous commissioners covering a broad range of external policies.

EU foreign, security and defence policy has been criticised for lacking coherence and for failing to match rhetoric with reality. Consider, for example, that when France and the UK agreed to pursue a military course of action against the Gaddafi regime in Libya in 2011, it was unable to do so through EU mechanisms, principally because of opposition from Germany. The UK and France defaulted to NATO structures with US support. Going back even further, the Iraq war created deep divisions amongst EU member states. The EU has struggled – and continues to struggle – to forge common positions amongst 28 member states, with distinctive national interests. This remains the single biggest challenge facing the CFSP. In recent years – and in light of President Trump’s hostility towards a number of international agreements – the EU has forged common positions on, for example, the Iran nuclear deal and the Paris climate accord. On other issues, the member states remain divided.

Two of the most significant countries that the EU would like to form common and coherent positions on are China and Russia. China’s rise is the geopolitical story of the 21st century. China’s economic expansion, its acquisitions of companies and infrastructure in EU member states and its funding of development infrastructure through its ‘Belt and Road initiative’ pose a challenge to the EU. Several member states have tightened restrictions on Chinese investment over the past year, and there is an ongoing debate about the extent to which 5G mobile networks across the EU should be developed and owned by Huawei. Divisions persist across EU member states: whilst Germany, France and the UK have grown more sceptical, Italy’s new government is taking a softer approach, and Hungary and Poland continue to hold a relatively positive outlook on China (Peel et al 2019).

Finding a common approach remains a challenge. No EU government wants economic confrontation with China and there is a concern that, if President Trump takes a more aggressive economic stance towards China, the EU could be forced to pick sides between its two largest trading partners. But China represents a long-term challenge to the liberal rules-based international order that has served the EU’s collective interests, and divisions amongst EU member states result in a lowest-common denominator approach, with no more than a loose agreement on dialogue and cooperation.

Russian foreign policy is currently geared towards challenging the existing norms of the international system, destabilising states that it sees as within its sphere of influence, and disrupting democratic processes in EU member states. Although the EU rallied admirably in response to the poisoning, on UK territory, of the former Russian spy Sergei Skripal and his daughter Yulia, divisions remain on the broader question of how to develop an overall stance towards Russia. Germany – the EU’s most powerful state, but one that is often a reluctant leader in the realm of foreign policy – sits in the middle of the spectrum. Concerned about economic and geopolitical instability and, with Russia playing an important role in its energy policy, Germany is reluctant to adopt a hard line. Many of the EU’s eastern member states, such as Poland, are more fearful of Russian intentions and recent military adventurism. Member states such as Cyprus, Greece, Hungary and Bulgaria are friendlier towards Russia. Italy has long enjoyed relatively strong ties and a current deputy prime minister has suggested that Russia’s annexation of Crimea is legitimate, a position at odds with EU policy. The EU has managed to agree to five key principles that guide engagement with Russia, but these do not amount to a coherent and common policy (Rácz and Raik 2018).

The challenge posed by Russia spans foreign and defence policy, especially since 2014 and the beginning of Russian military activity in Ukraine. Developments such as Ukraine – in the EU’s eastern neighbourhood – and the instability across North Africa and the Middle East – in the EU’s southern neighbourhood – have brought back to the fore questions about European security and defence. The language of the EU’s 2016 Global Strategy seems to grasp the challenges of the time, speaking of an ‘existential crisis’ (European Commission 2016).

Further exacerbating the problem are questions about the commitment of the US to European security. Although President Trump has bombastically questioned the foundations of NATO, insofar as that was a strategy to cajole European states into spending more money on defence, he may differ from his predecessor more on means than on desired ends. China’s rise is triggering a shift in focus by US policy-makers from the Atlantic community to the Pacific, and a corresponding desire to see Europeans shoulder more of the burden for securing their own neighbourhood. In 2011, the Obama administration was happy to ‘lead from behind’ and allow Europe’s leading military powers to tackle the challenge posed by Gaddafi in Libya (Goldberg 2016).

The development of the CSDP creates tensions with NATO, the alliance that has underwritten European security since 1949. There have long been tensions within the EU between member states, such as France, which would prefer the EU to have a greater degree of strategic autonomy in matters of defence, and those such as the UK and the Baltic states, which see NATO as the principal security institution. The US has historically been wary of the development of security and defence policies within the EU, fearing that it might lead to duplication of, decoupling from, or discrimination against NATO. The quest for EU strategic autonomy is the overarching aim, and has been explicit in EU documents since 2013. An alphabet-soup of initiatives has been unveiled over recent years, designed to help the EU reach an appropriate level of autonomy (Fiott 2018). Numerous investments in defence research and capability development have commenced over the past few years through the European Defence Fund. A Capability Development Plan is focused on fostering capabilities related to strategic autonomy, such as artificial intelligence and stronger coordinating processes between the EU and NATO.

The initiative with the highest profile is Permanent Structured Cooperation, or PESCO for short. Launched in 2017 and involving 25 EU member states, PESCO allows member states to jointly plan, develop and invest in shared military and defence projects. The aim is to enhance operational readiness and develop a coherent full spectrum force package. PESCO capabilities would be available to member states for use in national or multinational operations. By 2018, 34 projects had been launched and it was hailed by some as a breakthrough for the CSDP (Tocci 2018). Others were sceptical about the ability of PESCO to meet the defence needs of the continent. Recent analysis concludes that PESCO projects are headed in the right direction, but that most of the gaps and shortfalls identified by the EU are largely unmet by PESCO projects (Billon-Galland and Efstathiou 2019). PESCO has the potential to become a robust framework for joint procurement in defence, but the emphasis is on potential. Fundamentally, the same political and industrial hurdles that have dogged EU efforts in this space since St Malo largely remain. EU member states are stuck in an autonomy trap: whilst many of them desire greater autonomy in defence from the US, they are not prepared to give up the necessary autonomy to the EU.

Brexit is a complicating factor in both the CFSP and CSDP pictures, but especially in the latter. Much will depend on the future relationship between the UK and the EU, which at the time of writing remains unknowable. If the UK leaves the EU, then it will not be a full participant in either the CFSP or the CSDP. A form of Brexit that results in a close partnership between the UK and the EU could see the UK having some form of associate or partnership status in these frameworks, which would be to the mutual interest of both sides (Heisbourg 2018). The UK possesses capabilities that are of use to European partners.

It is for this reason that President Macron’s 2018 European Intervention Initiative – a project that seeks to unite militarily capable states to jointly carry out effective interventions – has been established outside of the formal structures of the EU. Macron sees this as a pragmatic step to keep the UK involved in European security and defence cooperation after Brexit, thus enhancing Europe’s collective capacity to act. Other governments, such as Germany’s, have been critical of the Macron-led initiative for organising cooperation outside of EU structures. At the time of writing, it has attracted ten participating states, including the UK. The situation demonstrates two things: first, the divergence of views amongst the EU’s leading member states about how to organise new defence cooperation initiatives and, second, the reality that any conversation about the future of European security will be weakened by a lack of UK presence.

That conversation goes beyond conventional defence and military affairs. The EU faces a fluid and fast-moving strategic environment. It must be prepared for what General Gerasimov – Chief of the General Staff of the Armed Forces of Russia – calls full-spectrum conflict: that is conflict operating at and below the level of formal armed conflict (McKew 2017). Beyond that, technological advancements in warfare are allowing cheap but sophisticated weaponry to be used by state and non-state actors. The cyber domain is another key challenge for the EU. Future civilian and military operations will depend to a great extent on the use of critical and space infrastructure, common cyber assets and supply chains. The EU is taking many small steps in the right direction, but these steps are not sufficient to the scale of the challenge.

The challenge cannot be met by discrete policy initiatives. At a strategic level, a discussion is needed about whether coalitions of willing EU member states ought to move forward with common policies and integrative mechanisms in certain areas. As described above, too often the EU has to move at the pace of its slowest, or most reluctant, member states, creating inertia at best and incoherence at worst. New initiatives, such as PESCO and the European Intervention Initiative, demonstrate the possibilities created by flexibility. President Macron has attempted to put the question of flexibility on the table, through a series of high-profile speeches and articles, suggesting a Europe of several circles with France unsurprisingly at the centre, in partnership with Germany. Ideas of a more institutionalised ‘multi-speed’ EU or a Union of ‘concentric circles’ have a long pedigree, but are met with scepticism in many capitals, including Berlin. In many Eastern European capitals, such calls are viewed sceptically as having the potential to consign those states to the outer circles. Grappling with these tensions will require a debate on the scale of those that preceded the Maastricht and Lisbon treaties. There is currently too much in flux to make concrete predictions or proposals, but a comprehensive conversation of the type proposed by Macron would be welcome in the near future.

Scotland’s Interests and Potential Role

Scotland shares an interest in ensuring that Europe remains peaceful and secure. But Scotland is not a state. As such it lacks both the capacity and the constitutional powers necessary to act in core areas of foreign and defence policy. It does not possess any military power and, although the UK’s devolution settlement allows Scotland to develop an external affairs policy, it is not permitted to develop a foreign policy distinctive from the UK’s. The international presence of the Scottish government – with offices in Washington, DC, Brussels, Beijing and two offices in Canada – is largely confined to the promotion of trade, investment and culture, as the recent opening of hubs in Berlin, Paris and Dublin attests to. The Scottish government has also developed a distinctive international development policy since 2005.

Adopting a soft power approach, the Scottish government attempts to use public diplomacy to promote human rights and research and scientific exchanges. In areas where the Scottish government has innovative policy ideas to share – such as climate change – it can use its international footprint to participate in policy networks. These sorts of activities are quite common undertakings by sub-national governments and the phrase ‘para-diplomacy’ has been coined to describe them. But Scotland is shut out of the core areas of foreign and defence policy.

If Scotland were to become an independent state – a proposition rejected by voters in September 2014 – then it would be able to develop its own distinctive foreign and defence policy. Debates in the context of the 2014 independence referendum suggested that an independent Scotland would seek to play an active role in international politics, within the EU and in other multilateral forums such as NATO and the UN. The emphasis was placed on trying to play active leadership roles in such institutions, becoming a thought leader in specific policy areas where Scotland had distinctive capacities and ideas. A network of overseas embassies, it was suggested, would be established in key national capitals and closer relationships sought with, for example, the Nordic Council of Ministers. It was also suggested that Scotland would have a defence force with around 15000 full-time personnel and a defence budget in the region of £2.5 billion. Ongoing conversations about the military footprint of an independent Scotland suggest the development of specific capabilities – for example, maritime capabilities, air- and sea-based patrol capabilities and specialist peacekeeping forces – that would make Scotland a valuable contributor to EU and/or NATO peacekeeping and stabilisation missions.

The foreign and defence policy sketched above could form the basis for an active Scotland to play a distinctive role within the EU, assuming it applied for, and secured, EU membership. Research suggests that small states can punch above their weight in international politics if they possess high-level, niche defence and security capabilities (Archer et al 2014). Similarly, in the realm of diplomacy, successful small states have demonstrated a capacity to build up a reputation for expertise in specific policy portfolios (Cooper and Shaw 2009). The highly networked institutional environment of the EU is fertile ground for such small state strategies. And the EU’s rotating presidency can be a powerful tool in the hands of diplomatically skilful and entrepreneurial small states. However, attaining the roles of a valued regional partner in defence and a thought leader on certain foreign policy portfolios would take years of sustained work. It is not a realistic prospect for Scotland in the short-to-medium term.

The present external relations strategy of the Scottish government is the one best geared for success in the short term. Although the areas in which the Scottish government has cultivated a reputation for knowledge and innovation, such as energy and climate change, are not core portfolios of the CFSP, they do feed into the broader global strategy of the EU. Alongside Scotland’s ongoing work in development – underpinned by strong research clusters in health, education and economic development – these are areas the Scottish government should continue to focus on.

In the current context, Scotland’s biggest external relations policy challenge is Brexit. If Brexit goes ahead, the influence of the Scottish government in Brussels will inevitably be diminished, whether its direct influence or via London. Any ongoing influence would depend in large part on the closeness of the future relationship forged between the UK and the EU. In the spirit of Scotland developing capabilities and ideas that are of use to the EU, two possibilities present themselves. First is cyber security, where the EU is already investing in new projects to build resilience and capacity. The UK is also a strong player in this field but, with a thriving tech sector and strong research base in its universities, Scotland could seek to play a stronger role, complementing and supplementing UK strategy in an area that is becoming increasingly relevant to security and defence policy.

Second is Arctic policy, something that the Scottish government is actively working to develop at the moment, respecting the reserved nature of the defence and foreign policy aspects of the Arctic. Several EU member states, and the EU itself, are developing policy in this space and the Scottish government could, once again, convene the research expertise of its universities and the policy expertise of its civil servants to develop a stronger voice. Were the intergovernmental relations between the UK and Scottish governments better than they are at present, this could even be an area of joint work, allowing Scottish government civil servants to participate in the shaping of UK foreign policy: but that is a far-fetched notion at present.

Conclusion

The EU currently faces a number of challenges in the fields of foreign, security and defence policy. Despite numerous policy initiatives, the challenge remains one of forging a unity of purpose amongst EU member states that can underpin common policies. These challenges are as persistent today as they have been in the past. Scotland – irrespective of the outcome of Brexit and its own constitutional future – has an interest in the security of Europe. But at present it lacks the capacities and powers required to play any role in core areas of foreign and defence policy. Should it become independent, and become a member state, Scotland could seek to play a role within the EU as a regional partner within the CSDP and a thought leader within the CFSP. As a part of the UK, Scotland’s influence in Brussels will be largely determined by the overarching UK-EU relationship and the outcome of Brexit.

References

Archer, C, Bailes, AJK and Wivel, A (eds) (2014) Small States and International Security: Europe and Beyond, New York: Routledge

Billon-Galland, A and Efstathiou, Y (2019) ‘Are PESCO Projects Fit for Purpose?’, European Defence Policy Brief, International Institute for Strategic Studies, Feb 2019, https://www.iiss.org/blogs/analysis/2019/02/pesco-projects-fit-for-purpose

Cooper, A and Shaw, T (eds) (2009) The Diplomacies of Small States: Between Vulnerability and Resilience, Basingstoke: Palgrave Macmillan

European Commission (2016) Shared Vision, Common Action: A Stronger Europe (EU Global Strategy), Jun 2016, http://eeas.europa.eu/archives/docs/top_stories/pdf/eugs_review_web.pdf

Fiott, D (2018) ‘Strategic Autonomy: Towards “European Sovereignty” in Defence?’, Briefing 12/2018, European Union Institute for Security Studies, Nov 2018, https://www.iss.europa.eu/content/strategic-autonomy-towards-%E2%80%98european-sovereignty%E2%80%99-defence

Goldberg, J (2016) ‘The Obama Doctrine’, The Atlantic, Apr 2016 issue, https://www.theatlantic.com/magazine/archive/2016/04/the-obama-doctrine/471525

Heisbourg, F (2018) ‘Europe’s Defence: Revisiting the Impact of Brexit’, Survival, 60(6): 17–26

McKew, MK (2017) ‘The Gerasimov Doctrine’, Politico, 5 Sept 2017, https://www.politico.eu/article/new-battles-cyberwarfare-russia

Peel, M, Hornby, L and Sanderson, R (2019) ‘European Foreign Policy: A New Realism on China’, Financial Times, 20 Mar 2018, https://www.ft.com/content/d7145792-4743-11e9-b168-96a37d002cd3

Rácz, A and Raik, K (2018) ‘EU-Russia Relations in the New Putin Era: Not Much Light at the End of the Tunnel’, International Centre for Defence and Security, Jun 2018, https://icds.ee/eu-russia-relations-in-the-new-putin-era-2

Smith, ME (2017) Europe’s Common Security and Defence Policy: Capacity-Building, Experiential Learning, and Institutional Change, Cambridge: Cambridge University Press

Tocci, N (2018) ‘Towards a European Security and Defence Union: Was 2017 a Watershed?’, Journal of Common Market Studies, 56, Annual Review, 131-141

Andrew Sherriff | European Centre for Development Policy Management (ECDPM)

Introduction

Globally, the number of forcibly displaced people has been rising rapidly since 2013. In 2017, 68.5 million people were displaced as a result of persecution, conflict, violence or human rights violations, according to the United Nations High Commissioner for Refugees (UNHCR 2018). Given the scale of this global displacement crisis, it is clear that no single approach or government will be able to address it effectively (Liebl, Musgrave and Maranto 2016).

Most of those forcibly displaced do not come to Europe. Instead, the majority stay in their country of origin, or move to neighbouring developing countries. In Europe, only Germany is among the top ten countries hosting refugees in absolute numbers, although Malta and Sweden are, globally, among the top ten for number of refugees per 1000 inhabitants (UNHCR 2018). In 2015, the war in Syria, other violent conflicts, poverty and turmoil in other parts of Africa and the Middle East uprooted people, caused flight and facilitated human smuggling closer to Europe’s borders and in greater number than at any time since the end of the Second World War (Knoll and Sherriff 2016). Irregular migration and asylum applications reached a peak in 2015-2016 and have been falling in recent years, yet their impact on European politics and society remains.

The EU’s Strategy, Challenges and Opportunities

During the past five years, responses to irregular migration have been some of the hottest and most contentious issues within the European Union. Rivalling Brexit for their consumption of top table European political energy, they have not been approached with the same degree of European solidarity. Heated discussions about potential responses have cut to the core of European values, collective interests, state sovereignty and supposedly shared responsibility.

Migration – Why Terminology Matters

Less than 4 in 10 people in Europe feel that they are well informed about immigration issues (Eurobarometer 2018). Indeed, clarifying the terminology used about migration is not an academic exercise, but one crucial to public understanding and effective policy response. ‘Regular migration’ respects rules and laws. ‘Irregular migration’ takes place outside regular norms of origin, transit and destination countries. Both categories can include those seeking asylum and those awarded refugee status. Irregular economic migrants can make asylum claims, but will likely be rejected. They will not receive refugee status, but are still counted as asylum seekers.

Those migrants arriving in Scotland under EU freedom of movement, or with valid visa, work permit, and importantly those entering legally and then applying for asylum, would be considered regular migrants. Irregular migrants who enter European countries illegally may be asylum seekers who eventually attain refugee status or economic migrants who would not. In Europe, in 2016, 984000 ‘third-country nationals’ (ie non EU citizens) were found to be illegally present in the EU, while 21.6 million third-country nationals were legally residing in the EU (Eurobarometer 2018). Thus, while the vast majority of immigrants in Europe are ‘regular’ – over 95% – rather than ‘irregular,’ public perception often thinks otherwise (Eurobarometer 2018).

Public, political and media discourse often conflates or confuses the different categories of migration. Indeed, people migrating cannot always be neatly categorised, often having mixed motives or changing status along the way. Certain populist politicians in Europe use a narrative stating that migrants are taking jobs, opportunities and public services away from indigenous, law-abiding citizens, while also shifting European or national culture (as also discussed in chapter 5). This resonates with some who think that conventional mainstream politicians are incompetent, indifferent or complicit in this supposed state of affairs. This powerful narrative, coupled with effective fake news and social media campaigns, has had a direct impact on European politics.

In fact, there is nothing new in the migration of people, leading some observers to point out that there is no ongoing ‘migration crisis’ in Europe. Rather, they say there is a political crisis relating to the lack of response solidarity, and a humanitarian crisis in most of the situations producing irregular migrants. Even if people understand the lack of a real ‘migration crisis,’ irregular migration, particularly the comparatively large numbers seen in 2015-2016, raises concerns among many citizens that borders are not being adequately protected and processes for orderly migration overwhelmed.

This European irregular migration drama may seem a little far from the day-to-day reality in Scotland. However, in continental Europe, irregular migration-related issues have had a profound impact on domestic politics. Angela Merkel’s political career was damaged by her humane response to the large inflow of predominantly Syrian irregular migrants in 2015, which was subsequently seen as a threat to the electoral success of the German Christian Democrats. In Sweden, a European bastion of tolerance and international values, the far-right Sweden Democrats rapidly gained influence after Sweden took in record numbers of irregular migrants. As a result, in 2015, Sweden ended up spending almost 30% of its aid (official development assistance) on refugees and asylum seekers within Sweden itself – an unprecedented development (Knoll and Sherriff 2017). It also considerably toughened its asylum laws, adding restrictions on the right to family reunification, for instance. In 2019, Fidesz, the party of Hungarian Prime Minister Viktor Orbán, put up billboards featuring European Commission President Jean-Claude Juncker and accusing him of being complicit in the ‘migration crisis’. This resonates with some Hungarian citizens, despite the fact that Hungary hosts relatively few migrants. And, in Greece, the ongoing crisis relating to the care and housing of tens of thousands of asylum seekers has put huge pressure on domestic politics and social services.

Effective European and multilateral solutions to migration governance, including irregular migration, have been in short supply. In fact, the adoption in Morocco in 2019 of the voluntary UN Global Compact for Safe, Orderly and Regular Migration actually caused the Belgian government to collapse, on the back of a social media campaign against it. While 152 countries voted in favour of the Global Compact for Migration in the UN General Assembly, several EU member states abstained (Austria, Bulgaria, Italy, Latvia and Romania) and three EU states (Poland, Czech Republic and Hungary) were amongst the five (along with Israel and the United States) to vote against it. This was hardly a demonstration of collective European solidarity. In this context, it is crucial to understand the ability of certain political parties to frame the debate about migration in overwhelmingly negative terms. They can have an indirect impact on policy choices at the European and national level, even if these parties are not in government.

The EU’s External Strategy for Responding to Irregular Migration

Political pressure in the European Union for an urgent crisis response was highest in 2015, due to rapidly growing inflows and frequent media reports of the dire humanitarian and human consequences of irregular migration. Since then, despite declining numbers of irregular migrants, the issue has not gone away. Indeed, successive summits of European heads of government have continued to deal with the issue. Solutions proposed by the European Commission for a more collective response within Europe to the consequences of irregular migration have been dismissed by heads of government, who have been unable to agree. Collective responses have been vehemently resisted by certain European Union member states, particularly those who are not a first destination for irregular migrants or those where political parties in government are openly hostile to a more welcoming migration agenda.

As a result, the collective EU response to irregular migration has been pushed beyond the borders of the EU, towards an external affairs approach where consensus is easier to find – and where collective action, while controversial internationally, is less politically contentious domestically. EU institutions and member states have found it easier to agree on the deployment of EU financial resources to third countries that are either countries of origin or transit. This has resulted in a number of rapid changes that have stretched the Commission’s existing financial instruments and budget ceilings to a breaking point. Nevertheless, EU institutions can point to a number of successful migration initiatives, some mobilised at impressive speed by EU standards (Knoll and Sherriff 2017).

Prior to 2014, external spending was primarily focused on the EU’s development cooperation programmes. At that time, it was implicitly understood that migration was largely positive for economic development (eg including the positive impact of remittances, but also that migrants could return with skills and capital) and therefore should be encouraged, albeit in a managed way. While there are many nuances, this aligns with most academic research on migration and development and United Nations declarations relevant to the topic. However, in 2014, the European policy focus (within many member states and EU institutions) shifted, to one in which aid should seek to address the ‘root causes of migration’. From then on, the inference here is that migration is something to be stopped, or at least stemmed, and that the EU’s international aid can contribute to this goal. The evidence that migration can be stopped or that development aid can contribute towards this is very limited indeed.

In 2015, the EU increased its humanitarian aid, particularly to those affected by the Syrian conflict, via new EU Trust Funds and the EU-Turkey Facility. The EU-Turkey Facility has a proposed budget of €6 billion, and according to the Commission has already helped 1.5 million refugees. Both these initiatives mostly involved scraping together resources from across different EU budget headings and external instruments, as well as dipping into reserves. The expectation was also that EU member states would ‘top up’ these instruments with additional funding. It was even possible for non-EU members such as Norway and Switzerland to buy a seat at the spending allocation, decision-making table by contributing over €3 million into the EU Trust Funds.

Unfortunately, the Commission’s goals for EU member state contributions were not met. The EU-Turkey Facility proved to be controversial. It was seen by some as essentially ‘buying off’ Turkey by providing billions of euros to assist with irregular migrants based there and therefore supporting an increasingly autocratic regime simply to prevent irregular migrants from travelling further towards Europe. Adding to the controversy was the Facility’s funding for the return of irregular migrants to Turkey from Greece.

These developments seemed at odds with the stated European goals of effective multilateralism and support for democracy and human rights. Some claimed that the EU was not living up to its humanitarian ideals, let alone good neighbourly relations and solidarity, if it ignored Turkey’s request for funds to deal with the significant inflow of people or Greece’s desire for a European solution. Ultimately, while the humanitarian and moral foundation of the EU-Turkey Facility can be questioned, it has had a significant impact on the number of people flowing into the European Union. It is thus seen in some political quarters as a success, despite the condemnation by a range of non-governmental organisation (NGOs) of the conditions of irregular migrants, including asylum seekers in Turkey and Greece.

The EU Trust Funds were also controversial, but for different reasons. Set up rapidly, some were concerned that they would draw money away from long-term, poverty-focused development cooperation and make these funds available to those seeking short-term security and migration governance solutions. Additionally, some felt that the rapid use of funds to address the ‘root causes of irregular migration and displacement’ would mean that hard-won lessons in effective European development assistance would be lost. For example, rapid spending can limit the ability of implementers to consult and involve local partners, which improves ownership. Rapid spending also limits the ability of actors to do the requisite amount of homework before spending aid resources (EU development policy is considered further in chapter 16 of this report).

Europe’s Long-term Interest: A More Effective Response to Irregular Migration

The European Union and its member states need effective multilateral and European solutions to emerging global problems, such as migration challenges and climate change. There are distinct limitations to the effectiveness of bilateral responses to these issues. Unfortunately, international politics seems to be turning away from cooperation and increasingly towards bilateral or purely domestic solutions that, by their very nature, are likely to be suboptimal.

The European Union promotes itself as a bulwark of support for multilateralism, with a strong values agenda in a world where such approaches to international affairs are increasingly under threat (including from erstwhile allies such as the United States). However, the EU’s fragmented response to the Global Compact for Migration is an indication that, on this issue in particular, its commitment to multilateralism and collective action differs widely amongst its member states. It is clear that European Union member states have different political interests and needs related to migration. Thus, a common EU-wide approach is difficult to realise.

Furthermore, the EU has moved toward a global strategy of ‘principled pragmatism’, in which its security and internal interests are more boldly asserted, and its support for the human rights and values agenda seems less unconditional (EEAS 2016). As irregular migration touched national politics in most European states, many favoured short-term, defensive crisis management responses. ‘Stabilisation in the neighbourhood’ and making ‘deals’ to address migration flows further afield has been the order of the day. Many European leaders believe that their firm response to the migration ‘crisis’ of 2015 saved liberalism in Europe, because they demonstrated that they were capable of fending off populists by mounting a robust and effective response. While this argument resonates with political leaders, few migration experts find it convincing (Parkes 2017).

It has been noted that the European Union’s explicit goals of decreasing irregular arrivals and increasing returns are at odds with the interests of many of its third-country partners and therefore very difficult to realise, particularly over the longer term (Collette and Ahad 2017). While the old EU approach to Africa of conditionality and buying support and transactional agreements may work in the short term, it is likely to backfire in the long term (Knoll and de Weijer 2016). Thus, questions arise about the effectiveness of the EU’s response and the extent to which it is going to be ‘fit for purpose’ in the longer term.

New Policy Ideas for the European Union

The EU can better address irregular migration by ensuring that its complexity is understood. This means working towards safe, legal and orderly routes to migration, as well as finding better solutions to forced displacement and incentivising responsibility sharing. None of this will be easy. Some specific proposals would include the following:

Being realistic and evidence-based about what EU spending can achieve

Irregular migration and a more common approach to asylum have had a significant influence on the European Commission’s proposal for the 2021-2027 budget. There is much to critique, but increasingly incentivising burden-sharing and thinking more specifically upfront about how migration can be addressed through the EU’s external spending are not inherently flawed. Improving migration governance is a long-term issue. It will be essential for the EU to strike the right balance between a long-term strategic focus for EU funds – with a focus on sustainable development – and a budget that is flexible in crisis situations, and that can pursue the EU’s political priorities (Knoll and Veron 2019). There is much work to be done to reach the finish line, and to ensure that the debate and decisions are evidenced-based.

Building strategic action from the bottom-up – but thinking long-term

The European External Action Service (the EU’s diplomatic services, with 140 EU delegations around the world) and the European Commission are currently involved in a quiet exercise to revise their analysis and strategy for cooperation in almost every region and country of the world in which they are active. This effort is in anticipation of being strategically ready to spend the new budget from 2021-2027. Here again, an approach incorporating clearer, more realistic thinking about the realm of possible responses to irregular migration, while keeping EU values and long-term interests balanced, is welcome. The EU institutions are doing their homework in these areas – processes that must be encouraged and supported.

Revitalising EU conflict prevention and peacebuilding

Under new political leadership, the EU should prioritise diplomatic conflict prevention and peacebuilding rather than short-term stabilisation and containment. If realised, better EU contribution to conflict prevention and peacebuilding, particularly in partnership with others, has the potential to address at least some of the reasons why individuals become irregular migrants and asylum seekers against their will. The EU has many good tools and has developed technical competence in this area. But it currently lacks sufficient top-level political sponsorship and long-term version.

Scotland and Irregular Migration

Unlike Italy, Germany, Greece, Sweden, Spain and Malta, the UK and Scotland have not had to deal directly with large flows of inward irregular migration. However, even the few who are trying to cross the English Channel have impacted on UK politics.

A functioning multilateral, European and national system for orderly migration and an effective and humane response to irregular migration would seem a priori to be in Scotland’s interest. Yet, immigration policy remains the competence of the government of the United Kingdom, not Scotland’s government or authorities. Therefore, the direct policy scope for Scotland is limited. While public attitudes towards immigration in Scotland seem to be broadly similar to that of England and Wales, the political and policy responses, in domains where it does have competence, have been different (Curtice and Montagu 2018).

Indeed, successive Scottish governments have adopted a relatively progressive and welcoming policy stance toward migration since the 1990s. The current Scottish government is one of the few in Europe which openly and consistently acknowledges the problem created by demographic changes and skills shortages, and the need for regular migration (from the European Union but also beyond) as a response. This perspective is supported by evidence generated by the Scottish government’s Expert Advisory Group on Migration and Population (Scottish government 2019). Even amongst progressive and left of centre European political parties, such positive and evidence-based public positions are increasingly rare at the national level in the EU.

Also, Scotland is seen as quite progressive in terms of refugee integration. The ‘New Scots: Refugee Integration Strategy 2018 to 2022’ is an example of multi-agency collaboration between governmental and non-governmental actors that includes significant refugee and asylum seeker input (Scottish government 2018). However, some believe that Scotland cannot be seen as a leader in all areas because, as with most European nations, Scotland struggles to respond to the human rights and public services needs of refused asylum seekers (McKenna 2019).

Scotland’s lack of legislative competence on migration or asylum issues has given it significant space to take the long view and some would say the moral high ground. Austerity and fears about irregular migration are often cited as a toxic mix and a contributory factor – if not the root cause – of the rise of right-wing populists elsewhere in Europe. Wage stagnation and a decline in ease of access and quality of public services have provided fertile ground in Europe for those who want to stop or dramatically reduce migration, whether regular or irregular. Could such dynamics play out in Scotland in the future?

Policy usually follows politics, and as yet none of the mainstream parties in Scotland has taken a strident anti-immigrant approach. There is no Scottish political party actively opposing immigration, although Scotland did elect a UKIP as an MEP in 2014, and it will be interesting to see how the new Brexit party fairs this May. While it may be tempting to conclude that the absence of an anti-immigrant Scottish party is because such views have no place in Scottish society, this would make Scotland a very special place indeed. Even in Nordic countries, Germany and the Netherlands, such anti-immigration political parties have seen increasing electoral success in the last ten years. While these parties rarely participate in government, they increasingly shape and influence the politics and national policies towards migration and asylum seeking. Ireland is a rare European counter-example, where anti-immigrant parties have not grown in political support. This is an interesting comparison with Scotland, given that both are small countries far from the front line of receiving irregular migrants – with neither in Schengen.

Scottish politicians and authorities at every level should strive for equitable access and high-quality public services for all users, as well as an effective yet equitable law enforcement and justice response. This must be achieved while addressing inequality and the effective integration of migrants, asylum seekers and refugees, and countering fake news about irregular migration.

Scotland’s Limited Route to Policy Influence in Europe on Irregular Migration

It will be difficult to make Scotland’s interests and views on matters of irregular migration heard at the EU level. As it is not a sovereign state or member of the European Union in its own right, Scotland does not have a place at the table in relation to Europe’s foreign, development or humanitarian policy; nor can it influence justice or home affairs policy, either as part of the European Council, the Council of Ministers or the many technical working parties. While the UK remains a member of the European Union, Scotland could seek to influence the UK government’s EU policy, although the track record in this area is not impressive. The UK is not in the Schengen area, nor has it shown any desire to share responsibility for asylum seekers entering the rest of Europe. Additionally, given Brexit (even before it happens), the UK does not have the influence it once did.

Furthermore, the separate political positions of the UK and Scottish governments are not currently aligned when it comes to migration. This could change if there is a change of UK government, or if Scottish political parties hold more influence and/or a direct line to ministers in any future UK government. Smaller EU member countries, such as Sweden, Ireland, and Luxembourg, with a more progressive outlook on migration and European external action, have themselves struggled to lead foreign or development policy responses and spending. But they have had some success in limiting the impact of a more security-oriented approach on the EU’s international development cooperation. If Scotland did become independent and if its government then continued to hold its current views on migration, it could ally with these states in its engagement on these issues.

Another route for Scottish engagement on migration is the European Parliament. While the UK remains an EU member, Scotland will continue to send MEPs to serve in the parliament. Some contend that the next European Parliament will move to the right and take a much harder line on migration and asylum seekers. This shift would undoubtedly have an impact on the European Parliament’s position on issues associated with irregular migration. Such a shift would also influence the 2021-2027 budget negotiations and the selection of top positions in the European Commission.

However, it is on the overarching budget negotiations rather than the day-to-day of the EU’s foreign and development policy or justice and home affairs that the European Parliament has more impact. Scottish MEPs could have a role, either as part of political groupings or, if luck would have it, in key positions in European parliamentary committees. Of course, if the UK leaves the European Union, no such routes will be open to the United Kingdom or Scotland in the short run, and would only open up if the United Kingdom or an independent Scotland would return to EU membership.

Alternative Routes to Scottish Influence

There are a variety of European non-governmental networks that regularly engage and shape debate at the EU level on migration, asylum, refugees, peace and security and development issues. These networks include the European Council on Refugees and Exiles (ECRE), the European Peacebuilding Liaison Office (EPLO), and CONCORD – the European Confederation for Relief and Development NGOs, as well as think tanks. While the Scottish Refugee Council is a member of ECRE, Scottish influence and input into other networks and think tanks (beyond the influence held by particular individuals) has been very limited. Scotland House, the Scottish government’s base in Brussels, has become a venue of choice for many think tanks and networks holding events discussing migration issues. While this may be simply because of its location and cost-effectiveness, rather than a conscious Scottish policy, it is a place to begin increasing Scottish influence. Also, Scottish politicians and political leaders can speak more publicly about the issue of irregular migration and associated issues of asylum and integration through clever social media campaigns. This is particularly effective if few European political leaders are prepared to promote such views, and if Scotland has a positive and credible story to tell.

Finally, outside of the sovereign national level, other civic leaders are increasingly frustrated with their own governments’ defensive approach to migration. This is leading to a new type of diplomacy – the emergence of actors such as city and municipal governments voicing progressive opinions on safe and orderly migration. For example, a global group of mayors and cities recently held a forum on the Global Compact for Safe, Orderly and Regular Migration, with recommendations to the UN General Assembly both on migrants and refugees. Scotland could seek to influence these actors’ work, particularly if Scotland feels its views and experiences are not well represented at the UK or European level. While the Scottish government has commissioned some work on regular immigration in the wake of Brexit (Scottish government 2019), more could be done to explore Scotland’s place, role and response to irregular migration and the related issue of asylum seeking in a changing Europe.

This chapter is written in a personal capacity and should not be taken to be the views of European Centre for Development Policy Management. I am grateful to Anna Knoll and Pauline Veron of ECDPM’s migration programme for their feedback and insight on an earlier draft of this chapter.

References

Collette, E and Ahad, A (2017) ‘EU Migration Partnerships: A Work in Progress’, Migration Policy Institute, Dec 2017, https://www.migrationpolicy.org/research/eu-migration-partnerships-work-progress

Curtice, J and Montagu, I (2018) ‘Do Scotland and England & Wales Have Different Views About Immigration?’, NatCen, Dec 2018, http://natcen.ac.uk/our-research/research/do-scotland-and-england-wales-have-different-views-about-immigration

Eurobarometer (2018) ‘Integration of Immigrants in the European Union’, Special Eurobarometer 469, Apr 2018, http://ec.europa.eu/commfrontoffice/publicopinion/index.cfm/survey/getsurveydetail/instruments/special/surveyky/2169

European External Action Service (2016) Shared Vision, Common Action: A Stronger Europe (EU Global Strategy), Jun 2016, http://eeas.europa.eu/archives/docs/top_stories/pdf/eugs_review_web.pdf

Knoll, A and de Weijer, F (2016) ‘Understanding African and European Perspectives on Migration – Towards a Better Partnership for Regional Migration Governance’, Discussion Paper No 203, European Centre for Development Policy Management, Nov 2016, https://ecdpm.org/publications/understanding-african-european-perspectives-migration

Knoll, A and Sherriff, A (2017) ‘Making Waves: Implications of the Irregular Migration and Refugee Situation on Official Development Assistance Spending and Practices in Europe’, Expertgruppen för biståndsanalys (Expert Group for Aid Studies), Jan 2017, https://eba.se/en/rapporter/making-waves-implications-of-the-irregular-migration-and-refugee-situation-on-official-development-assistance-spending-and-practices-in-europe-2/5239

Knoll, A and Veron, P (forthcoming, 2019) ‘Migration and the Next EU Long-Term Budget: Key Choices for External Action’, in Sherriff, A (ed) ‘Investing in Europe’s Global Role: The Negotiations for the Multiannual Financial Framework 2021-2027’, European Centre for Development Policy Management

Liebl, J, Musgrave, A and Maranto, R (2016) ‘A Safe Haven? Britain’s Role in Protecting People on the Move’, Joint Agency Briefing Note, 14 Apr 2016, https://policy-practice.oxfam.org.uk/publications/a-safe-haven-britains-role-in-protecting-people-on-the-move-605192

McKenna, R (2019) ‘From Pillar to Post: Destitution among People Refused Asylum in Scotland’, Destitute Asylum Seeker Service (Glasgow), Feb 2019, http://www.scottishrefugeecouncil.org.uk/assets/0001/8406/From_Pillar_to_Post.pdf

Parkes, R (2017) ‘Nobody Move! Myths of the EU Migration Crisis’, Chaillot Paper No 143, EU Institute for Security Studies, 13 Dec 2017, https://www.iss.europa.eu/content/nobody-move-myths-eu-migration-crisis

Schöfberger, I (2019) ‘Migration: Solid Nations and Liquid Transnationalism? The EU’s Struggle to Find a Shared Course on African Migration 1999 – 2019’, Discussion Paper 1/2019, Deutsches Institut für Entwicklungspolitik (German Development Institute), https://www.die-gdi.de/en/discussion-paper/article/migration-solid-nations-and-liquid-transnationalism-the-eus-struggle-to-find-a-shared-course-on-african-migration-1999-2019

Scottish government (2018) New Scots: Refugee Integration Strategy 2018 to 2022 – Convention of Scottish Local Authorities (COSLA), Scottish Refugee Council and Scottish government, 10 Jan 2018, https://www.gov.scot/publications/new-scots-refugee-integration-strategy-2018-2022

Scottish government (2019) UK Immigration Policy after Leaving the EU: Impacts on Scotland’s Economy, Population and Society, Expert Advisory Group on Migration and Population, Feb 2019, https://www.gov.scot/publications/uk-immigration-policy-leaving-eu-impacts-scotlands-economy-population-society

UNHCR (2018) ‘Global Trends: Forced Displacement in 2017’, United Nations High Commissioner for Refugees, 25 Jun 2018, https://www.unhcr.org/globaltrends2017

Cathy Ratcliff | International Development Practitioner

The EU’s Strategy, Challenges and Opportunities

This section of the chapter describes the EU’s international development strategy and the main debates around the European Commission’s future budget, Brexit and other relevant international negotiations. Differences of opinion lie between countries (particularly between the original and new EU member states), but more significantly between civil society and government. The phrase ‘international development’ is often used interchangeably with ‘aid’, but development can happen with or without aid, and is affected by policies such as migration (facilitating remittances) and international tax and trade rules. This section proposes that, to reduce poverty overseas, the EU should encourage migration from poorer countries to the EU, ensure coherence of all its policies and, if Brexit proceeds, continue to include the UK in its international development activities.

The EU’s International Development Strategy and Key Debates

The EU is the largest donor of development aid in the world, and the largest donor to climate change mitigation and adaptation. The architecture of this aid is complex, involving the European Commission (EC), EU and recipient governments, and publics and civil society in both donor and recipient countries, including non-governmental organisations (NGOs), all aiming to address poverty and crises in recipient countries.[1] The EC delivers most of the EU’s aid, through the Directorate-Generals of International Cooperation and Development (DEVCO) and European Civil Protection and Humanitarian Aid Operations (ECHO), which operate from Brussels and EC delegations in countries receiving their aid. The rest is delivered through EU member states’ aid agencies, which deliver both development and humanitarian aid from within their ministries of foreign affairs – except the UK’s Department for International Development (DFID), which uniquely has ministerial status (Mawdsley 2012). EU membership requires being a donor, and new members have to prove compliance with EU donorship when qualifying for EU membership, committing to increasing aid budgets and to standards.

The EC’s proposed 2021-2027 budget is significantly increased from €1087 billion in 2014-2020 to €1279 billion for 2021-2027, in current prices. A new Heading 6 ‘Neighbourhood and the World’ represents external action, and is 13% greater than the EC’s previous expenditure on external action – its share of overall budget proposed to increase from 8.7% in 2014-2020 to 9.6% in 2021-2027. The proposals simplify EC international development finance through a new ‘Neighbourhood, Development and International Cooperation Instrument’ (NDICI), occupying 72% of the Heading 6 budget (ECDPM 2018). NDICI will total €89 billion over seven years: geographic programmes (€68 billion), thematic programmes (€7 billion), rapid response (€4 billion) and €10 billion to respond to emerging challenges and priorities. It is proposed that €22 billion (25%) of NDICI will be for neighbourhood countries, 25% to further climate objectives, 20% for human development and social inclusion (including women’s and girls’ rights) and 10% to address root causes of migration and manage migration. NDICI would enable mixing of EU funds with private sector investment from outside the EU, through a European Fund for Sustainable Development-plus (EFSD+), an External Action Guarantee (EAG) and financial assistance (European Commission 2018).

Although broadly welcomed by EU civil society, NDICI has its critics. The increase in the external action budget of 13% over seven years is less than the projected European Gross National Income (GNI) increase, and so represents a reduced share of GNI (ECDPM 2018). Given that only five EU member states have achieved the target of aid equalling at least 0.7% of their GNI (Bond 2017), civil society will advocate for the Heading 6 budget to be at least maintained. While the proposed EFSD+ and EAG should enable the EC to innovate in response to global concerns needing multi-dimensional responses and should attract private sector finance, there is concern over NDICI’s implementation, governance, accountability and allocation of resources between themes, while its focus on the EU’s priorities of European neighbourhood, security and migration risk an excessive focus on self-interest (Jones et al 2018).

The EFSD+ is conceived as flexible, but the proposal lacks detail of how it connects to climate objectives, women’s and girls’ rights, youth, business, geographical balance, targeting of fragile and poorer countries, investment, grievance mechanisms and tax rules. Its governance remains sketchy, the role of the European Investment Bank outside the EU is unspecified and the proposal gives the EC great power to shape these matters (Bilal 2019). NDICI obfuscates its aims through mixing neighbouring and poorer countries in one instrument, and allocates only 55% more (€32 billion) to Sub-Saharan Africa than to neighbourhood programmes (€22 billion).

Of course, change is to be expected. Aid is constantly in flux, as some recipient countries cease to need it, some proceed from humanitarian to development needs, some become donors or return to donorship, countries which never received aid become donors, and South-South cooperation grows as India, China and Brazil strengthen. Donors’ priorities change, depending on who is in government, public attitudes and recipients’ priorities. Climate breakdown needs global cooperation, as new emergencies arise on unexpected scales. The EU must respond to all these, and NDICI’s flexibility could be an advantage. Such flexibility, though, requires civil society to keep an eagle eye on NDICI’s implementation, assessing whether in practice it addresses the most pressing needs overseas, or prioritises the EU’s soft power and security.

Brexit adds to this change and uncertainty, especially given UK prominence in aid. Brexit would alter dynamics among member states, generate a significant financial vacuum in the EU, reduce mutual influence between the UK and the EU, and likely reduce their collective strength and soft power. A post-Brexit UK will no longer contribute its current annual €18 billion to the EU, 15% of the EU’s income and a net loss to the EU of €11 billion, perhaps causing the EU to cut overseas aid. The UK would lose influence and implementation through its largest multilateral aid partner, and the EU would lose up to £1.3 billion of aid funds annually from the UK, 8% of the UK’s aid budget. The devaluation of the pound soon after the Brexit vote reduced the value of UK aid overseas, and more reductions in its value post-Brexit would further devalue UK aid. Current negotiations for a renewed Cotonou Agreement between the EU and 79 African, Caribbean and Pacific countries, on development, trade and political cooperation may be weakened by the UK’s absence, since most countries party to it are members of the Commonwealth, in which the UK has both interest and influence (Bond 2017). In multiple areas which affect recipient countries (aid, trade, investment, tax, climate change, migration, global health, peacebuilding, humanitarian policy and security), Brexit presents loss of mutual beneficial influence between the EU and the UK, but it also presents the hope that the UK may raise standards and still influence the EU.

It is hard, though, to detect plans for higher standards in international development in a post-Brexit UK. The government’s white paper on the future relationship between the United Kingdom and the European Union makes scant mention of international development and aid (UK government 2018). The withdrawal agreement and political declaration merely state that the UK will continue to honour all commitments already made to contribute to EU Trust Funds and the ‘facility for refugees’ in Turkey, and that the UK will remain party to the European Development Fund (EDF), honouring existing financial commitments to the end of the 11th European Development Fund in 2020.

Such loss of UK NGOs to the EC, and of the EC to UK NGOs, would be considerable. Article 152 of the withdrawal agreement states that UK organisations may participate in projects under the 11th and previous EDFs as they did previously (UK government and EU 2018). However, if UK NGOs are excluded from future EC funding, the EC would lose access to collectively the largest recipient of its grants and the second largest recipient of its grants and service contracts combined: it awarded at least €300m of fresh commitments to UK NGOs each year from 2012 to 2016. The EC would also lose access to UK NGOs’ advice, which has helped shape its development agenda. Cooperation of UK NGOs with NGOs of other member states would also diminish (Ansorg et al 2019).

From UK NGOs’ perspective, if they cannot apply to the EC for aid funds, they would lose approximately €357 million each year, the amount received by UK NGOs from the EC in 2016. €211 million of this (a full 25% of ECHO’s funding that year) was for humanitarian work (Bond 2017). Consequently, Brexit would cause the EC and high-performing aid implementers and advisers to lose access to each other – unless the EC unties its aid, allowing applicants from any country. But current calls for proposals from the EC state that any successful UK lead applicant must cede its place as lead beneficiary to a co-applicant from 2021. Larger NGOs with offices in other EU member states can apply from non-UK offices, but smaller UK NGOs have already lost much EC funding, with replacements by UK sources as yet undetermined. Finally, from the UK government perspective, if it spends less on aid through the EC, it must work out how to spend more through other routes, to maintain its legalised commitment to 0.7% of GNI – if it maintains this commitment.

It is good to remember, though, that large donors can wield unfair power. NDICI and Brexit intermingle with other EU international negotiations, in which the EU exercises its economic strength and status as donor. African, Caribbean and Pacific countries may find development funding conditional on agreeing to EU member states’ and NDICI’s priorities of migration control. Africa’s own Continental Free Trade Agreement is at odds with the EU’s repeated commitment to Economic Partnership Agreements. And while the EU has proposed an Africa-EU Strategic Alliance for Sustainable Investment and Jobs, which emphasises partnerships with the private sector to boost trade over aid, it may be driven by a desire to counter China’s influence in Africa through its ‘Belt and Road initiative’, and to keep African migrants from Europe. Already in 2016, the EU’s investment commitment in Africa aimed to address root causes of migration and contribute to reintegration of migrants returning to their countries of origin (Ansorg et al 2019; see also chapter 15 of this report). Motivations matter and, if aid is given to reduce unwanted migration instead of in response to recipient countries’ priorities, the end result may not be development.

Extent of Consensus or Diversity of View

Since each EU member state must have a good quality governmental aid department, and since each is influenced by social and political changes sweeping Europe and the world, there is similarity between each country’s approach in its own aid effort and their negotiated common effort through the EC. But member states also express their individuality through their own aid: the central and eastern European ones ignoring their previous donorship under socialism (Mawdsley 2012); some with the wisdom and scepticism of having been recent aid recipients; some influenced by strong religious culture; and some having evolved from coloniser to donor and preferring to donate to countries which speak their language, their former colonies. Member states have strengths and preferences, whether women’s rights, infrastructure, conflict resolution, emergency response, education, health or economic development, and such approaches and policies combine to determine EC policy. In recipient countries, different approaches are fairly clear, as donors negotiate which donor will fund what in each sector. Diversity of views between member states and the EU is therefore managed.

Diversity of views between EU civil society and government is less well resolved. The EU’s NGO sector has well developed advocacy, with membership bodies such as CONCORD representing 2600 EU NGOs, international networking and specialist staff. NGOs advocate on behalf of their publics at home and populations whom they aim to help overseas. They are specialised and informed, vocal and consensual as their strategies dictate, but do not always agree with each other on policy or tactics. They and other informed actors such as university academics are unlikely to sit quietly, if the EU puts its own interests above those of poor people overseas but, since they depend on the EC and EU governments for much of their funding, their voices may not be loud and, since the media may not be sympathetic to helping spread NGO messages, they may not be heard, as other aspects of Brexit dominate the media.

Another division is between aid implementers (NGOs, EC and member states’ aid agencies) and anti-aid activists. Many of the latter are right-wing and argue through a sympathetic media that their country’s money is better spent on their country’s people. Some pro-poor activists also argue against aid, seeing it as neocolonialism, whereby powerful donors (many former colonisers) present depoliticised recipient countries (usually former colonies), to whom they dictate, allowing the continuation of a harmful aid apparatus (Cornwall and Eade 2010). These pro-poor, anti-aid activists sometimes combine with others to promote policies such as ‘trade not aid’, but in general they are little heard. While many NGOs advocate policy reform and ‘beyond aid’ to reduce poverty overseas, they are unlikely to promote anti-aid voices, and so the aid consensus continues with the most apparent division between government and NGOs on the one hand, and right-wing anti-aid activists on the other.

Fresh Thinking Needed by the EU

The EU must continue to try to reduce poverty overseas, even given the above challenges of a possibly unaccountable NDICI prioritising EU strategic aims over the needs of poor people overseas, Brexit causing the EU and UK to lose access to each other’s funds and skills, and international development debates reduced to a dispute between aid and right-wing anti-aid proponents, with little space to debate other poverty-reducing policies. These challenges prompt three policy proposals.

Firstly, policy coherence is a key policy tool. If applied to all EU external actions in all dealings with all countries, it would transform global inequality and injustice. Policy Coherence for Development (PCD) was introduced in EU law in 1992 with the Treaty of Maastricht, reinforced in the 2007 Treaty of Lisbon, reaffirmed in the 2017 European Consensus on Development, and is essential to the UN’s 2030 Agenda for Sustainable Development and its 17 sustainable development goals (SDGs). The EU coordinates self-reporting by member states into a document which is only mildly critical of their policy coherence. Nevertheless, such statements alone serve a purpose: ‘Policy Coherence for Development constitutes a key pillar of the European Union’s efforts to enhance the positive impact of its policies on developing countries, promoting synergies between policies and thereby increasing the effectiveness of its development cooperation.’ (European Commission 2019)

If the aid industry arises from the need to remedy the ills caused by development, from the industrial revolution, through colonialism and mature capitalism (Cowan and Shenton 1996), policy coherence aims for governments’ efforts not to cause harm in the first place, and may reduce the need for aid. For example, policy coherence might lead to cessation of subsidies to tobacco agriculture, rather than funding both tobacco-growing and major efforts to reduce smoking. The concept of policy coherence is not new, but its implementation is. Thus, while NDICI proposes that 25% of the EC’s resources be put towards climate objectives, some member states and EU policies still promote cheap air travel, intensive meat and dairy production, and extraction of oil and gas. Even if only applied to mitigation of climate breakdown, vital to the very survival of our species, root-and-branch policy coherence would be transformative.

Secondly, if Brexit goes ahead, and if the UK retains its prominence in international development, the EU and international development would benefit enormously from including a post-Brexit UK in EU international development. The UK is the most significant contributor to the EU’s overseas development aid. The EU’s new Financial Regulation already allows for the establishment of EU Trust Funds to pool resources from the EU budget and EU member states and other donors, such as a post-Brexit UK. The UK could pool its resources with EU budgets in some thematic trust funds which might then be open to UK NGOs. Like Norway and Switzerland, the UK might opt in case by case, perhaps to the Investment Plan or the Africa Trust Fund. UK NGOs could still consult on EU strategies (Ansorg et al 2019).

Finally, a more open immigration policy to the EU would greatly reduce poverty. The much-debated EU policy of freedom of movement within the EU has enabled remittances from wealthier to less wealthy member states, until these are developed enough to attract back some citizens to contribute to their countries of origin. It has enabled international friendships, maintained through people settling for good in adopted countries or through the internet at a distance.

If the EU had a managed immigration policy for people from outside the EU, combined with aid developing the countries from where immigrants have come and to where many would return, it would spread wealth around the world and transform global inequality and cultural exchange. Since increasing even temporary immigration to the EU flies in the face of current policies and trends to reduce immigration, advocates of this more open immigration policy must gather evidence of the EU’s need for migrants while European populations age, and of the other benefits of people moving as freely as capital. Migration is harder to stop as climate breakdown spreads, and it is strange in today’s globalised world to keep most people inside their original region while a small elite travels freely. Managed immigration to the EU would benefit many people and reduce the need for aid.

Scotland’s Interests, Contribution and Influence

This section describes Scotland’s significant but relatively low-profile presence in international development, the importance of its historical relationships, the Scottish government’s international development and humanitarian aid policies, and its leadership through a holistic aid policy spanning climate justice and fair trade. It also considers its vulnerability in operating an area reserved to Westminster. This section proposes that to reduce poverty overseas, Scotland should be a policy coherence case study helping persuade the EU to implement policy coherence, that Scotland’s ‘relational development’ model should be rigorously and independently evaluated and any advantages also presented as a case study from which the EU could learn, and Scotland should present itself to the EU as a valuable partner in international development, even in the event of Brexit.

Scotland’s Presence in International Development, Its Leadership and Challenges

Scotland has a large and varied presence in international development. Since the 1980s, a large office of DFID has operated in East Kilbride; professionals based there form a significant and often overlooked asset in Scotland, some engaging in high-level networking. Scottish universities are increasingly funded by the UK government to participate in international development, using their innovations to benefit poorer populations, often in conjunction with NGOs. Scotland has many large and small NGOs, the largest being Mercy Corps Europe (£101 million income in 2018) and the Halo Trust (£61 million income in 2018), also significant assets which are often overlooked in Scotland.

Scotland’s International Development Alliance (the Alliance) has over 100 members, mainly NGOs, working in over 140 countries. Some UK NGOs headquartered outside Scotland have an office in Scotland, some implementing overseas with Scottish government funding, for which a presence in Scotland is required. Scotland is home to individual consultants and homeworkers, hired by international institutions for a range of development expertise. Some Scottish trusts fund international development. Diaspora living in Scotland maintain links with their home countries, raising funds for it and sending remittances to their families. The Scotland Malawi Partnership has over 1000 members with active links with Malawi. This is a vibrant aid community, whose biggest players have a fairly low public profile.

Although international development is reserved to Westminster, the Scottish government has since 2005 spent some of its budget on international development and emergency aid, through its Cooperation Agreement with Malawi, expanding in 2008 to other countries, and in 2016 narrowing again to Malawi, Rwanda, Zambia and Pakistan (the last for educational scholarships). It disburses its £10 million international development annual budget largely through NGOs and universities. ‘Global Citizenship: Scotland’s International Development Strategy’, is ‘to encourage new and historic relationships; empower our partner countries; engage the people of Scotland; and enhance our global citizenship’. (Scottish government 2016)

The explicit emphasis on historic relationships, some of which span centuries, and on engaging the people of Scotland in present-day relationships, makes Scottish aid unusual amongst institutional donors. In Malawi, for example, historical links started with Scottish missionaries founding churches, hospitals and schools which still exist today, with churches in Malawi actively involved with churches in Scotland, and some Malawian representatives attending the Church of Scotland’s annual General Assembly. While the missionaries unwittingly laid the path to trade and colonialism, they helped Malawians resist the slave trade and stayed with congregations in difficult times such as the Second World War. Scots advocated for Malawian independence in the 1960s, and some were ministers in the young Malawian government (Ross 2013). This history is known to some Malawians and some Scots. The historic links have evolved into twinning between churches and between schools, multiple Scottish projects in Malawi, and many visits from Scotland to Malawi plus some from Malawi to Scotland. With all these person-to-person links, and similar links with other countries (but simply fewer of them), today’s Scottish international development has been characterised as ‘relational development’ (Ross 2014).

The Scottish government’s varied approach is reflected in its report on 2017-2018, with sections on initiatives in its four priority countries, its Humanitarian Emergency Fund, Climate Change and Climate Justice, Global Citizenship in the NHS and in Scottish education, and civil society partnerships including Fair Trade, Scotland’s relationship with Malawi and sport: ‘We aim to equal the best small countries in the world in our contribution to international development – we know that small countries consistently top the annual Commitment to Development Index in terms of the overall impact of their policies on international development’ (Scottish government 2018). Its broad remit, especially Climate Justice, Global Citizenship, Fair Trade and mixing diplomacy with aid, shows leadership and innovation. This plus the strong international development community present in Scotland would stand it in good stead if Scotland became independent. Indeed, the sector is valuable to the current SNP government, as it shows what an independent Scotland could do, engaging in international affairs, the equal of other small donor countries.

But the sector has its challenges. Brexit gave a shock to the sector in Scotland when the pound devalued, and would reduce funding to the small number of Scottish NGOs which have headquarters in Scotland, sufficient reserves and enough implementation expertise to manage EC grants. All the risks of Brexit outlined in this chapter’s first section apply to the Scottish aid sector and its impact on reducing poverty. The biggest challenge though is that, with international development reserved to Westminster, Westminster could stop the Scottish government from engaging in it. The government’s challenge is to keep developing the sector so that Scottish society would resist any such demise.

How Scotland Can Influence EU Policies

Scotland has several routes to influencing the EU. Scotland-based staff and volunteers of DFID, universities, NGOs, membership organisations, trusts, diaspora and consultants participate in international networks, including Catholic Caritas, Protestant and Muslim networks and EU civil society such as CONCORD. The Alliance and Bond (a UK NGO network) work with CONCORD to influence EU policy, and larger Scottish NGOs sometimes work directly with CONCORD. Scotland can influence specific sectors through EU forums such as the Network of European World Shops, and Scottish universities participate in international programmes and networks which influence the EU.

The Scottish government’s office in Brussels is a potential outlet for Scotland to influence EU international development policy. Scotland has expertise and access to make useful contributions through all these networks, but many routes are also closed to it, a sub-state which does not sit at all decision-makers’ tables, and whose expertise the UK government does not always know.

Policy Proposals for Scotland in International Development

Scotland could attempt to influence the EU through several strategic proposals. The first again concerns policy coherence. The Scottish NGO sector studied five EU countries implementing policy coherence, and made recommendations including: a strong legal or policy commitment to policy coherence to prevent loss of support when governments change; involvement of all departments and leadership from the highest level to help arbitration and prevent policy coherence becoming a ‘development’ issue; annual or biennial government reporting on policy coherence with scrutiny by parliament and civil society; a strong role for civil society to ensure accountability and information exchange; and sufficient funding for an effective policy coherence system (NIDOS 2014). The Scottish government and civil society should implement these recommendations, evaluate the results and present this to the EU as a case study to encourage the EU to implement policy coherence thoroughly.

Secondly, Scotland could also be a case study of ‘relational development’, an experiment in aid revolving around human relationships with the aim of poverty reduction. A rigorous, objective evaluation of this strategy and its achievements could be of value to UK, EU and global international development circles.

Finally, as Brexit would mean the UK losing influence and funding in the EU, Scotland could redouble its efforts to engage as much as possible in all areas of international development that the EU focuses on, as described above for the UK. Scotland should make a case for why the EU should seek Scotland’s participation, as a pro-EU, pro-development, internationalist small country with expertise and unique case studies to offer to the EU and to international development.

References

Ansorg, N, Haastrup, T, Whitman, RG (2019) ‘Global Europe Centre, University of Kent – Written Evidence (INT0008)’ Written Evidence, International Development Cooperation after Brexit, House of Lords EU External Affairs Sub-Committee, UK parliament, 24 Jan 2019, http://data.parliament.uk/writtenevidence/committeeevidence.svc/evidencedocument/eu-external-affairs-subcommittee/international-development-cooperation-after-brexit/written/94894.html

Bilal, S (2019) ‘Leveraging the Next EU Budget for Sustainable Development Finance: The European Fund for Sustainable Development Plus (EFSD+)’, Discussion Paper No 243, European Centre for Development Policy Management, Feb 2019, https://ecdpm.org/publications/leveraging-the-next-eu-budget-for-sustainable-development-finance-the-european-fund-for-sustainable-development-plus-efsd

Bond (2017) ‘The Impact of Brexit on UK and EU International Development Policy: Views from UK and European Civil Society’, 19 Jul 2017, https://www.bond.org.uk/resources/the-impact-of-brexit-on-uk-and-eu-international-development-and-humanitarian-policy

Cornwall, A and Eade, D (eds) (2010) Deconstructing Development Discourse – Buzzwords and Fuzzwords, Rugby: Practical Action Publishing with Oxfam GB

Cowen, MP and Shenton, RW (1996) Doctrines of Development, London: Routledge

European Commission (2018) ‘Proposal for a Regulation of the European Parliament and of the Council Establishing the Neighbourhood, Development and International Cooperation Instrument’, 14 Jun 2018, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX:52018PC0460

European Commission (2019) 2019 EU Report on Policy Coherence for Development, 28 Jan 2019, https://ec.europa.eu/europeaid/2019-eu-report-policy-coherence-development-including-member-states-replies_en

Jones, A, Di Ciommo, M, Sayós Monràs, M, Sherriff, A, and Bossuyt, J (2018) ‘Aiming High or Falling Short? A Brief Analysis of the Proposed Future EU Budget for External Action’, Briefing Note No. 104, European Centre for Development Policy Management (ECDPM), Sept 2018, https://ecdpm.org/publications/aiming-high-falling-short-analysis-proposed-eu-budget-external-action

Mawdsley, E (2012) From Recipients to Donors: Emerging Powers and the Changing Development Landscape, London: Zed Books

NIDOS (2014) ‘Policy Coherence for Development: Exploring and Learning from European PCD Approaches’, Network for International Development Organisations in Scotland, Nov 2014, https://www.intdevalliance.scot/resources/policy-coherence-development-exploring-and-learning-european-pcd-approaches

Ross, KR (2013) Malawi and Scotland – Together in the Talking Place since 1859, Mzuzu: Mzuni Press

Ross, KR (2014) ‘No One Can Shave Your Head in Your Absence: Malawi, Scotland and a Relational Approach to International Development’, University of Edinburgh

Scottish government (2016) Global Citizenship: Scotland’s International Development Strategy, 21 Dec 2016, https://www.gov.scot/publications/global-citizenship-scotlands-international-development-strategy

Scottish government (2018) Contribution to International Development Report 2017-2018, 3 Sept 2018, https://www.gov.scot/publications/contribution-international-development-report-2017-18

UK government (2018) The Future Relationship between the United Kingdom and the European Union, Cm 9593, July 2018, https://www.gov.uk/government/publications/the-future-relationship-between-the-united-kingdom-and-the-european-union

UK government and EU (2018) Agreement on the Withdrawal of the United Kingdom of Great Britain and Northern Ireland from the European Union and the European Atomic Energy Community, 14 Nov 2018, https://ec.europa.eu/commission/publications/draft-agreement-withdrawal-united-kingdom-great-britain-and-northern-ireland-european-union-and-european-atomic-energy-community-agreed-negotiators-level-14-november-2018_en

UK government and EU (2018) Political Declaration Setting out the Framework for the Future Relationship between the European Union and the United Kingdom, 22 Nov 2018, https://www.consilium.europa.eu/en/press/press-releases/2018/11/22/draft-political-declaration-setting-out-the-framework-for-the-future-relationship-between-the-eu-and-the-uk-and-article-132-of-the-draft-withdrawal-agreement

[1] The EC and member states develop their own strategies in conjunction with recipient governments and governed by international agreements such as the 2030 Agenda for Sustainable Development, the Paris Agreement on Climate Change and the Addis Ababa Action Agenda. Each member state also has an array of quasi-governmental, private for-profit and not-for-profit NGOs, funded by EU publics, private trusts and government, while in recipient countries much development is implemented through local NGOs.

David Gow | Sceptical.scot

Introduction

‘The only one in the light’ is how Jyrki Katainen, European Commissioner for jobs, growth, investment and competitiveness, described European Union (EU) efforts to preserve the open, rules-based global trading system that is core to its entire economic strategy. The EU, as the world’s largest trading bloc, is facing a twin challenge to that strategic commitment from the United States and China, both of which have adopted a series of measures to protect their industries at home and increase their overseas trade and investment reach in their increasingly vicious search for hegemony. At the same time, the global commerce regulator, the World Trade Organisation (WTO), is at risk of crumbling.

The EU, for its part, favours a ‘balanced and progressive trade policy to harness globalisation’ (European Commission 2017) for the supposed benefit of all. It has placed great store by its post-crisis shift in policy towards greater fairness and sustainability in trade, with a new emphasis on social justice, respect for human rights, observing high labour/health and safety and environmental standards. The results have been patchy for a body that prides itself on being the world leader in development aid. Worse, they are being systematically undermined by the two other great trading blocs.

Europe’s policy stance has been described as ‘walking on two legs’: promoting multilateral liberalisation and regional integration. Even without Brexit, the second leg has begun looking limper than even the first as economic and political differences, notably over migration but also over eurozone reform and even the rule of law, come to a head and threaten the EU’s cohesion. Protectionism overseas, populism at home.

For a small trading nation like Scotland – total annual exports of £81.4 billion, including to the rest of the UK (rUK) – compared with the EU, with extra-EU exports of goods alone in just January 2019 of €153.6 billion – Brexit, protectionism and inward-looking nationalism (‘nativism’) represent a huge triple challenge to its current and future prospects. In or out of the EU, independent or still in the UK, it is in its elemental interests to support efforts to preserve an open, rules-based trading system that promotes social justice around the world. Its influence here is tiny and under siege in the Brexit process that has seen the UK government whittle away and undermine the 20-year devolution settlement, and make promises to fully engage the Scottish government in post-Brexit trade negotiations that are not worth the paper they are written on.

At the same time, Scotland needs to invest far more energy and creativity in expanding its export base, increasing both exports and investment in export-led growth, upgrading its skills and infrastructure base, leveraging its research expertise, quite apart from tackling effectively the long-standing scourges of poverty and inequality with their damaging impact on educational attainment and health outcomes. This, we argue here, is by far the best way to improve competitiveness.

EU Trade Policy

The EU sees trade policy as inextricably linked to its overall economic strategy of promoting growth, jobs and competitiveness. Indeed, it sees the greatest benefit of an open, fair trading system as spreading these three around the globe – and adding to peace and stability both intra- as well as extra-EU. The EU accounts for around 15% of world imports and 16% of global exports, while extra-EU trade accounts for almost a quarter of EU28 GDP. Trade is, then, the lifeblood of the EU economy. More than one in seven jobs, or 32 million, depend upon exports.

Table 1: International Trade Flows in 2017 (€ trillions)

 ExportsImportsTotal Trade
China1.91.43.3
US1.32.03.3
EU Total5.25.110.4
EU Intra3.43.36.6
EU Extra1.91.93.7
World15.515.7

​Data: Bruegel, based on International Trade Centre and Eurostat. Total trade is the sum of exports and imports. Discrepancies between world exports and imports and intra-EU exports and imports are due to statistical issues. EU refers to the 28 member states of the European Union as of March 2019.​ Source: Dadush and Wolff (2019)

These benefits are at increasing risk as, first, the US under President Donald Trump adopts outright protectionist measures, often in the form of tariffs, on goods from the EU, China and Turkey – and China responds to his trade war. Eurofound, the EU agency for improving living and working conditions, says Trump’s measures have been ‘radically ramped up to reach a scope and scale that are unprecedented in living memory.’ (Eurofound 2019) Given that manufactured goods represent 83% of EU exports, it sees the sector suffering a hit of up to 1.0% of output and 1.1% of jobs, with overall EU GDP down 1.0% by 2030.

Similarly, the Chinese authorities in charge of the world’s most populous country, with its state capitalist system, are stepping up what is essentially a protectionist policy with their Made in China 2025 programme. This, designed to secure Chinese global leadership in artificial intelligence (AI) and renewable energy inter alia, wants to raise the domestic content of core components to 70% by the middle of the next decade or even get to self-sufficiency, enabling greater lift-off in conquering global markets. This is in addition to the ‘Belt and Road initiative’, which is spearheading China’s drive into regional markets and beyond and is seen as a tool for establishing trading hegemony.

These and other US/Chinese measures are a direct challenge to EU trade policy. The European Commission (EC), which has exclusive competence to negotiate and conclude trade agreements around the world, adopted a revised policy in 2015 as set out in Trade for All (European Commission 2015). This made a series of ‘progressive’ as well as ‘modernising’ commitments that are now assailed from all sides. It put values at the heart of trade strategy: ‘The new approach also involves using trade agreements and trade preference programmes as levers to promote, around the world, values like sustainable development, human rights, fair and ethical trade and the fight against corruption. We will use future EU agreements to improve the responsibility of supply chains.’ Such commitments to a stable, values-based system cut little ice in Beijing and Washington.

Similarly, the Commission made revitalising the WTO a key plank of its revised policy, but there is precious little evidence that this is succeeding: au contraire. The EC’s approach was to make the body better reflect the emergence of new economic powers such as China but, instead, the WTO has been crippled by the failure of the Doha Development round (Amadeo 2019) and its ‘inability to make progress in critical areas such as services, agricultural subsidies, investment, the facilitation of global value chains and digital trade calls into question the value of the organisation and the sustainability of its legal framework.’ (Dadush and Wolff 2019) The US refusal to endorse new members of the appeals panel – its disputes settlement system – and a wave of new protectionist measures from the likes of India and South Africa have dealt serious blows to the very notion of trade liberalisation.

Trade and Industry

The Commission has made strong links between trade policy and industrial policy within overall EU economic strategy. One of the most explicit is that between ‘structural reforms’ and ‘growth, jobs and innovation.’ It says: ‘Structural reforms, less red tape, better access to finance and more investment in infrastructure, skills and research and development are essential to further strengthen the Union’s capacity to take advantage of open markets.’ It adds that ‘structural reforms implemented by Member States also pay off in improved trade performance.’ The European Semester is lauded as ‘an important tool to maximise synergies between trade and domestic policies.’ (European Commission 2015)

The problem here is that ‘structural reforms’ have more commonly been associated with austerity, wage depression (‘internal devaluation’), enforced privatisation and deregulation, rather than with investment in education and skills training, research and development or infrastructure, let alone modernising manufacturing via digitalisation. And, while such reforms are propagated by northern eurozone member states such as Germany and the Netherlands, they are anathema in the southern periphery and/or parts of central and eastern Europe.

Latterly, the ‘big two’ EU member states, France and Germany, have initiated an industrial policy of creating and supporting ‘European champions’ to combat Chinese and American rivals – and at the very least retain Europe’s place in the global commercial marketplace. This was given added impetus by the decision of EU Competition Commissioner Margrethe Vestager to block the proposed merger of the rail manufacturing interests of Alstom and Siemens. Indeed, the French and German finance ministers, who published the manifesto on a European industrial policy ‘fit for the 21st century’, proposed significant changes to competition rules, including on mergers and state aid, in the wake of her ruling (French ministry of finance 2019).

Similarly, the ‘Friends of Industry’, a group of 18 EU member states, urged the EU in early 2019 to adapt its trade policy to ‘defend its strategic autonomy’ not just by modernising the WTO, but adopting a proposed regulation to ‘better monitor foreign direct investment in Europe for reasons of security and public order’ and identifying the EU’s strategic value chains within a globalised world, where raw materials, parts and machinery account for 75% of trade.

But these initiatives and others do not command unanimous support. Spain may be a ‘friend of industry’ but it is anxious that the Franco-German version of industrial policy would cement the leading position of their champions at the expense of others and of many regions of Europe. Italy, too, is a ‘friend of industry’ but is also attracted by China’s Belt and Road initiative to the point of endorsing it during a March 2019 state visit by President Xi Jinping. Similarly, smaller EU member states prefer to step up freedom of (labour) movement and consolidate competition rules rather than up-end them. The EC’s European Political Strategy Centre (EPSC) is both admiring and wary of Chinese initiatives: ‘Openness must be a two-way street. Europe needs to become more strategic in planning its technological and industrial future, and far less naïve with regard to unfair competition from other countries. A policy that will best serve Europe’s interests is one that supports industry at large, rather than individual technologies, and one that rejects free-riding on the part of competitors.’ (EPSC 2019)

EU Response to Protectionism

The EPSC (see above) encapsulates the EU’s dilemma in confronting growing barriers to trade and, in some ways, exposing the contradiction between openness and defensiveness at the heart of EU policy responses. In its reaction to the Vestager ruling on Alstom-Siemens, it clearly links industrial strategy to trade policy, calling for a level playing field globally based around: ‘1. Making the World Trade Organisation fit for purpose; 2. Growing the EU’s arsenal of defensive tools; 3. Shifting into offensive gear: beefing up reciprocal market access and building up leverage.’ It then calls for greater effort to implement the ‘international procurement instrument’ (opening up public authority contracts to more global competition) and, in the same breath, by urging an industrial renaissance at home – effectively calls for greater public funding of projects of common European interest. This comes with talk about ‘sensible protection of European strategic assets’ and reviewing the EU’s public procurement market to check on foreign bidders in ‘critical markets.’ (EPSC 2019)

The EU28/27 have stayed committed to free trade, eschewing the ‘managed’ version favoured by both President Trump and the Chinese, but the EU is under pressure to adopt a more protectionist stance from countries such as Italy, under its new populist coalition government, and member states in eastern Europe (that are also flirting with the Chinese). Even ‘ordoliberal’ Germany stands accused of taking on increasingly protectionist policies towards key economic sectors such as banks.

Clearly, it is in Europe’s essential interests to stand up for free but ‘fair and balanced’ trade and a rules-based order. The European Council on Foreign Relations says the EU can best do this by ‘ensuring its continuity at home; supporting liberal values abroad through the use of European economic power and alliances with like-minded states; and adjusting its strategy to protect the order’s core elements in an era in which illiberal states have growing power.’ (Dworkin and Leonard 2018) And there has been evidence of a (partial at least) rethink in Beijing. Even so, the EU has updated its trade defence instruments to further protect companies against damaging competition. The EPSC calls this ‘reducing exposure to protectionism while restoring industrial leadership at home’ – a neat encapsulation of the potential conflict within trade policy. Instead, the EU should come out even more strongly against protectionism that, ultimately, can only lead to the kind of depression the world witnessed in the 1930s, with the known consequences.

Ultimately, as analysts at Brussels-based think tank Bruegel (Dadush and Wolff 2019) acknowledge, the best way to respond to protectionist populism is via investment in skills and, above all, measures to reduce inequality via a more expansive fiscal policy. Europe needs to encourage more strategically the adoption of digital technology and, with it, its own ‘big tech’ firms capable of taking on American and Chinese competitors. Currently, only five of the top 100 unicorn firms ($1 billion start-ups) are from the EU27. And this required strategic approach is highly pertinent for the case of Scotland that is discussed in the next section.

Scotland Needs to Scale Up

The Scottish economy underperforms. Growth in 2018 was 1.4% (1.5% in 2017), which is below potential, in common with the trend in growth-rates in recent years. Unemployment is at a record low, though the quality of jobs is debatable and productivity, described as ‘middling’, is around 20% below the ambitious target of being in the top OECD quartile (Fraser of Allander 2019a). Inequality and low birth rates/ageing population are just two of the most prominent and long-standing challenges.

The Scottish government is well aware of these trends. Like the EU’s, its trade policy as such is an integral part of its overall economic strategy: ‘A strong, vibrant and diverse economy is essential to our national prosperity and in creating the wealth to support high quality public services. Ensuring that growth is shared and sustainable is the key to unlocking all of Scotland’s potential and strengthening our greatest asset – the people of Scotland.’ (Scottish government 2016) At the heart of trade policy is internationalisation: both boosting exports/exporters and encouraging FDI and skilled migration. The aim is clearly to boost growth and competitiveness. Like the EU’s industrial strategy, the Holyrood government’s adoption of a £2 billion Scottish National Investment Bank (SNIB) is designed to provide longer-term (‘patient’) finance for companies and infrastructure projects and, thereby, help modernise and grow the economy in a digital age. A consultation into the proposed bank, due to be fully operational by 2020, ended in early 2019 with mixed external signals.

Delivering the trade policy is overseen by a Glasgow-based directorate for international trade and investment, advised by a new and recently expanded ministerial trade board that is supposed to deliver advice and suggest new ways of boosting Scotland’s export performance under the government’s 8-point ‘action plan’. This talks of ‘building Scotland’s profile and reputation as a connected, innovative and inclusive nation’, but is short of detail – apart from monies to support innovation hubs in London, Dublin and Brussels, and now Berlin and Paris, and a strong commitment to the living wage. Its strategic approach is called ‘One Scotland’ or, as usual, all working together.

Scotland’s Export Performance

In 2017, Scotland’s total exports were £81.4 billion, or a drop in the EU ocean. Of these, £48.9 billion or around 60% went to the UK, whose market for Scottish goods has expanded 70% in 15 years (Scottish government 2019a). Of the remaining £32.4 billion of strictly international exports, £14.9 billion (within the UK’s overall £274 billion) went to the EU – up 18% on the year, but to a market that has grown less than that of non-EU countries. The EU and its single market and customs union remain, even so, the Scottish government’s favoured destination. The UK government viewpoint is, according to the House of Commons Scottish Affairs committee, that 90% of global economic growth in the next 20 years will be non-EU.

A March 2019 report (Fraser of Allander 2019b) compiled by the Fraser of Allander Institute (FAI) is an effective wake-up call to ministers, officials and policy-makers. Scotland has high-performing export sectors, such as food & drink and life sciences, and the report says almost a million jobs (in 2015) depended upon exports and incoming tourism. Exports may be important, but they need to be significantly higher and the narrow export base highlighted within the report needs to be expanded. Scotland has a ratio of exports to GDP of around 50% but, excluding those to the rUK, this drops to 20% or less than half the EU average. Five sectors alone account for more than half of Scottish international exports, with whisky accounting for a substantial share of that. Overdependent on rUK, Scotland must substantially scale-up its performance and seize the opportunities presented in emerging overseas markets, with their increasing emphasis on digital products and services and in sectors such as renewable/clean energy, where it already has strengths.

Table 2: Exports of Goods and Services in 2017 (% of GDP)

TerritoryExports
Ireland119.87
Hungary88.25
Belgium85.78
Netherlands82.95
Czechia79.73
Switzerland64.91
Denmark54.54
Poland54.29
Austria53.73
Scotland52.21
Germany47.05
Sweden45.34
EU2844.41
Portugal42.70
Finland38.51
Norway36.22
Spain34.31
Italy31.18
France30.88
United Kingdom30.13

Data: World Bank Indicator Code (NE.EXP.GNFS.ZS). Scotland percentage calculated on exports including to rUK (£81.355 billion) and GDP at market prices (£155.830 billion). Percentages rounded to two decimal places. Source: World Bank (2019); Scottish government (2019a, 2019b)

Brexit and Devolution

As a sub-state EU member, Scotland has little influence over EU trade policy and, post-Brexit, might have even fewer opportunities – except by example – to help shape that policy. Cross-party MPs (House of Commons 2019) are alarmed that, given the record of the UK government in respecting the role and policies of the devolved administrations in the Article 50 negotiations, the Scottish government could be squeezed out of future talks on the political declaration (‘transition’) and any subsequent free trade agreement. They also fear that sectors of importance to Scotland, such as food and drink, could be ‘traded away’ by Westminster/Whitehall to secure preferential treatment for others, such as autos.

Clearly, the Scottish government requires strong cross-party support from MPs and MSPs and popular backing to ensure that a distinct Scottish voice and interests are represented in post-Brexit trade talks. It is also essential that Scottish ministers retain and expand strong networks, including institutionalised links, with the EU and its member states, not least smaller nations with similar interests, such as Ireland, Denmark or Finland.

Boosting Internationalisation

In conclusion, there are a number of policy steps the Scottish government and other actors should consider.

  1. Export culture: There is often a reluctance on the part of business, especially SMEs, to consider export markets, because of perceived barriers to entry and the absence of, say, language skills. Like the 2015 Cole Commission (Labour Policy Forum 2015) before it, the FAI suggests greater mentoring to growing firms to help them move into international markets and a ‘decluttering’ of the public support system, with a focus on what is effective rather than more talk of initiatives. However, Cole reprised the suggestion first made by Lord Heseltine (as industry secretary) for a ‘one-stop shop’ or single portal for advising firms, especially SMEs. The Scottish government’s trade board might usefully take on a key – and more widely publicised – role in creating this culture.
  2. Look forward, angels: There is an aversion in policy-making circles to ‘picking winners’ though, obviously, deciding upon strategic investments has to be selective. Equally, there is a widespread predilection for investments and trade in digital products/services, AI, robotics and so on, as well as in what is known as Industry 4.0 (in which services play a key role). The point here is that, rather than seek to mimic bigger players, Scottish policy-makers should encourage growth in, say, low-carbon segments or key parts of life sciences. The proposed SNIB can play a vital role here, despite some fears expressed (Lorimer 2019) about the adequacy of its capitalisation and even usefulness. It could, above all, encourage a more inclusive-oriented approach to growth that would raise Scotland’s overseas profile.
  3. Scotland’s USP in trade policy: In or out of the EU, Scotland should play to its strengths, and one of these is a shared belief in values such as social justice, human rights, more even development as set out in the UN’s sustainable development goals (SDGs) and a fairer distribution of income and assets. Fair and ethical trade schemes, including environmental commitments, are at the heart of EU policy, despite shortcomings in practice revealed by bodies such as the Trade Justice Movement. Here is an area where Scotland can take a leading role, working in harness with others to hold the EU to its promises and making a small but decisive contribution to a fairer and more peaceful world.

References

Amadeo, K (2019) ‘Doha Round of Trade Talks: The Real Reason Why It Failed’, The Balance, 25 Jan 2019, https://www.thebalance.com/what-is-the-doha-round-of-trade-talks-3306365

Dadush, U and Wolff, G (2019) ‘The European Union’s Response to the Trade Crisis’, Policy Contribution Issue No 5, Bruegel, 14 Mar 2019, http://bruegel.org/2019/03/the-european-unions-response-to-the-trade-crisis

Dworkin, A and Leonard, M (2018) ‘Can Europe Save the World Order?’, European Council on Foreign Relations, 24 May 2018, https://www.ecfr.eu/publications/summary/can_europe_save_the_world_order

European Commission (2015) Trade for All: Towards a More Responsible Trade and Investment Policy, Oct 2015, http://trade.ec.europa.eu/doclib/press/index.cfm?id=1381

European Commission (2017) A Balanced and Progressive Trade Policy to Harness Globalisation, 13 Sept 2017, https://publications.europa.eu/en/publication-detail/-/publication/4a4b13f2-e3a6-11e7-9749-01aa75ed71a1

European Political Strategy Centre (2019) ‘EU Industrial Policy after Siemens-Alstom: Finding a New Balance between Openness and Protection’, 18 Mar 2019, https://ec.europa.eu/epsc/publications/other-publications/eu-industrial-policy-after-siemens-alstom_en

Fraser of Allander Institute (2019a) ‘Scottish Productivity Statistics – Latest Update and Longer-term Trends’, University of Strathclyde, 14 Feb 2019, https://fraserofallander.org/scottish-economy/productivity/scottish-productivity-statistics-latest-update-and-longer-term-trends

Fraser of Allander Institute (2019b) ‘Scotland in 2050: Realising Our Potential – Final Report’, University of Strathclyde, Mar 2019, https://www.sbs.strath.ac.uk/economics/fraser/20190319/scotland-in-2050.pdf

French ministry of finance (2019) A Franco-German Manifesto for a European Industrial Policy Fit for the 21st Century, Paris/Berlin, 19 Feb 2019, https://www.gouvernement.fr/en/a-franco-german-manifesto-for-a-european-industrial-policy-fit-for-the-21st-century

House of Commons (2019) ‘Scotland, Trade and Brexit’, HC 903, Scottish Affairs Committee, 10 Mar 2019, https://publications.parliament.uk/pa/cm201719/cmselect/cmscotaf/903/90302.htm

Labour Policy Forum (2015) ‘The Cole Commission on Exports: An Action Plan from Business’, Jun 2015, https://www.policyforum.labour.org.uk/uploads/editor/files/ColePlan11-23166.pdf

Lewney, R, Alexandri, E, Storrie, D and Antón Pérez, JI (2019) ‘Trade Scenario: Employment Implications in Europe of a Large Increase in Global Tariffs’, Eurofound (European Foundation for the Improvement of Living and Working Conditions), 14 Mar 2019, https://www.eurofound.europa.eu/publications/report/2019/trade-scenario-employment-implications-in-europe-of-a-large-increase-in-global-tariffs

Lorimer, K (2019) ‘Warnings over Scottish National Investment Bank’, Public Finance, 13 Feb 2019, https://www.publicfinance.co.uk/news/2019/02/warnings-over-scottish-national-investment-bank

Scottish government (2016) Global Scotland: Trade and Investment Strategy 2016-2021, 10 Mar 2016, https://www.gov.scot/publications/global-scotland-scotlands-trade-investment-strategy-2016-2021

Scottish government (2019a) ‘Export Statistics Scotland 2017’, 30 Jan 2019, https://www2.gov.scot/Topics/Statistics/Browse/Economy/Exports/ESSPublication

Scottish government (2019b) ‘GDP Quarterly National Accounts, Scotland: 2018 Quarter 3’, 30 Jan 2019, https://www2.gov.scot/Topics/Statistics/Browse/Economy/QNA2018Q3

World Bank (2019) ‘Exports of goods and services (% of GDP)’, Indicator Code NE.EXP.GNFS.ZS, 24 Apr 2019, https://data.worldbank.org/indicator/NE.EXP.GNFS.ZS

About the Report

Nick Barley has been Director of the Edinburgh International Book Festival since 2009. He was chair of the judges for the Man Booker International Prize in 2017 and since 2018 has been a trustee of the Booker Prize Foundation. In 2019, he was appointed a Chevalier in the Ordre national du Mérite by the French government.

Alistair Burnett is a journalist and analyst of international affairs. He worked for the BBC for 26 years until 2015, where he was editor of The World Tonight on BBC Radio 4 for ten years, ensuring there was a place on national news for daily coverage of global affairs. He was also editor of Newshour on BBC World Service in the early 2000s. He has an MA in History from the University of Edinburgh and has worked in several countries, including Italy and China. He has a particular interest in international relations and the shifting power relations in the world that are challenging the traditional American and European dominance of global affairs.

Professor Sionaidh Douglas-Scott is Anniversary Chair in Law and Co-Director of the Centre for Law and Society in a Global Context at Queen Mary, University of London. She was formerly Special Legal Advisor (2015-2017) to the Scottish parliament’s Culture, Tourism, Europe and External Relations Committee for its inquiry ‘EU Reform and the EU Referendum: Implications for Scotland’.

Maria Fletcher is Senior Lecturer in European Law at the University of Glasgow. She teaches and researches on EU law, in particular around EU constitutional law and EU citizenship, immigration and criminal justice. Maria’s scholarly practice is informed by a strong commitment to securing access to justice for those most in need through innovative, practical and collaborative research projects. She is on the Steering Group of the University of Glasgow’s Refugee Asylum and Migration Network (GRAMNet) and the Director of the Scottish Universities Legal Network on Europe (SULNE).

Miranda Geelhoed is PhD researcher at the Strathclyde Centre for Environmental Law and Governance (SCELG) and expert on interactions between the agricultural and environmental legal regimes. She has worked with the European Commission and the secretariat to the Convention on Biological Diversity on agriculture, and contributed extensively to SCELG’s work on Brexit. Her current research focuses on the potential of an ecosystem approach to regulation in support of agroecological transitions at EU and national levels.

David Gow is Editor of Sceptical.scot, Senior Adviser at Social Europe and Senior Adviser at Acumen Public Affairs. He is former European Business Editor of The Guardian and worked for The Scotsman and London Weekend Television. He also served as rapporteur on the Cole Commission on exports (2014-2015), writing and editing its final report on improving the UK’s export performance. He is Advisory Board member of the Scottish Centre on European Relations.

Dr Kirsty Hughes is Director of the Scottish Centre on European Relations. She is a researcher, writer and commentator on European politics and policy, and she has worked for a number of leading European think tanks as well as at senior level in the European Commission and as a university lecturer. She has published widely, including books, academic articles, policy papers and extensive commentary and analysis for the media.

Alison Hunter is a Brussels-based policy analyst in the areas of EU regional and innovation policy, economic development and industrial growth. She is director and joint owner of Economic and Public Policy Consultancy, a board member of the EU research lab – European Future Innovation System Centre – and a Senior Adviser to the European Policy Centre.

Professor Michael Keating FRSE FBA FAcSS is Professor of Scottish Politics at the University of Aberdeen and Director of the Centre on Constitutional Change. His research areas include regions, nationalism, Scotland and public policy. He is author or editor of over thirty books on Scottish politics, European politics, nationalism and regionalism.

Dr Daniel Kenealy is Lecturer in Public Policy at the University of Edinburgh, where he teaches and researches UK constitutional politics and foreign policy, including the external affairs of Scotland. He is the lead editor of The European Union: How Does it Work? (Oxford University Press, 2018) and has previously served as an expert adviser to the European and External Relations Committee of the Scottish parliament.

Professor Tobias Lock is Professor of Law at the National University of Ireland, Maynooth. His research focuses on the EU’s multilevel relations with other legal orders, including the European Convention on Human Rights. He is Advisory Board member of the Scottish Centre on European Relations.

Professor Sir Anton Muscatelli FRSE FRSA FAcSS is Principal and Vice-Chancellor of the University of Glasgow, and Chair of the First Minister of Scotland’s Standing Council on Europe. An economist, his research interests include monetary economics, fiscal policy, finance and macroeconomics. He is Advisory Board member of the Scottish Centre on European Relations.

Dr Pontus Odmalm is Senior Lecturer in Politics at the University of Edinburgh. His research focuses on parties, elections, the politics of immigration and the impact of migration using a comparative European perspective. He recently published the book The European Mainstream and the Populist Radical Right (co-edited with Dr Eve Hepburn, Routledge, 2017).

Dr Cathy Ratcliff is a development discourse analyst and an international development practitioner. She has worked in Scottish international development NGOs for 25 years, managing programmes departments and grants from a range of donors, including the European Commission, Scottish government and UK government. She has lived and worked in Scotland, Russia, China and Ethiopia, and is writing a book comparing Western and Russian development discourse, to be published by Routledge.

Paul Reddish is Chief Executive of ProjectScotland, which provide opportunities for young people to engage and volunteer in communities throughout Scotland. In addition to providing supported opportunities to volunteer with individual charities, it has more recently played a role in empowering young people to influence the design and implementation of new policies and strategies with its partner, Young Scot. ProjectScotland is also a strategic partner for the new European Solidarity Corps programme (part of Erasmus+), affording opportunities for young people throughout Europe to volunteer.

Anthony Salamone is Research Fellow and Strategic Advisor at the Scottish Centre on European Relations. He is a political scientist and his academic and policy expertise focuses on the politics and institutions of the European Union, Scottish-European relations, Brexit and Scottish politics. He is PhD Candidate in British and European Politics at the University of Edinburgh. A member of the Edinburgh Europa Institute, he was Founding Managing Editor of European Futures, its academic blog; Co-Convenor of the Edinburgh Europa Research Group; and Founding President of the Edinburgh University European Union Society.

Dr Annalisa Savaresi is Lecturer in Environmental Law at the University of Stirling. Her work focuses on climate change, renewable energy, nature conservation and the interplay between environmental and human rights law. She has taught at institutions around the world, regularly serves as a consultant for think tanks and international organisations, and has advised the Scottish government and parliament on Brexit. She is a member of the IUCN World Commission on Environmental Law, Deputy Director for Europe of the Global Network on Human Rights and the Environment and Associate Editor of the Review of European, Comparative and International Environmental Law.

Andrew Sherriff is Head of the European External Affairs Programme at European Centre for Development Policy Management (ECDPM), an independent think tank with offices in Brussels and Maastricht. Prior to ECDPM, he was an advisor to EU presidencies, think tanks and aid agencies. From 1999-2004, he worked for the peacebuilding organisation International Alert, after academic research in Canada and Ireland. He grew up in Blair Drummond near Stirling.

Craig Wilson is Parliamentary Public Affairs Officer at the Scottish Council for Voluntary Organisations (SCVO). He leads on SCVO’s direct engagement with MSPs, ministers and MPs – having begun his career working in the Scottish parliament and House of Commons. Central to his role is the dissemination of SCVO policy positions and ensuring politicians and influencers are aware of, and receptive to, the needs and ambitions of the charity sector. Keeping SCVO members up to date with the relevant current affairs developments and heading up policy campaign activity are other key parts of his work.

Dr Fabian Zuleeg is Chief Executive and Chief Economist of the European Policy Centre. Fabian holds a PhD on the political economy of EU accession from the University of Edinburgh. Before the EPC, he worked as an economic analyst in academia, the public and private sectors. He is currently Honorary Fellow at the Europa Institute of the University of Edinburgh and Honorary Professor at Heriot-Watt University. He was appointed to the Standing Council on Europe, established by Scotland’s First Minister after the Brexit vote in June 2016, and also sits on the Advisory Board of the Scottish Centre on European Relations.

We are grateful to all the members of our Strategic Advisory Group. The responsibility for the contents of the report rests with the editor, and individual chapter authors, alone.

Members

John Downie
Director of Public Affairs · Scottish Council for Voluntary Organisations (SCVO)

David Gow
Editor · Sceptical.scot

Dr Eve Hepburn FRSA
Director · PolicyScribe

Dame Mariot Leslie
Former UK Diplomat and Ambassador

Prof Tobias Lock
Professor of Law · National University of Ireland Maynooth

Prof Nicola McEwen
Professor of Territorial Politics · University of Edinburgh

Prof Kurt Mills
Professor of International Relations and Human Rights · University of Dundee

Prof Sir Anton Muscatelli FRSE FRSA FAcSS
Principal and Vice Chancellor · University of Glasgow

Jane Salmonson
Chief Executive · Scotland’s International Development Alliance

Dr Uta Staiger FRSA
Executive Director · UCL European Institute | UCL Pro-Vice-Provost (Europe)

Dr Fabian Zuleeg
Chief Executive and Chief Economist · European Policy Centre

We are grateful to the following funders for supporting this programme of work.

James and Morag Anderson

Supporters of the Crowdfunding Campaign:
Scotland and the EU: Disruption, Continuity and Change

The Federal Trust

Fraunhofer UK Research Limited

European Movement in Scotland

The University of Glasgow

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