© 2019 SCER
Overview: the Politics and Processes of Accession
Now the UK has left the European Union, the question of how and whether an independent Scotland could re-join the EU, and what the implications of that would be, are gaining renewed attention. Even in the run-up to the June 2016 referendum, how a Brexit vote might change both the levels of support for independence and the implications of independence in the EU were under discussion, and have been more so since the ‘leave’ vote.[i]
This report brings together the views of fifteen experts across fourteen topics to analyse, from different angles, what an independent Scotland’s accession process to the EU might look like and what the implications of independence in the EU, while the rest of the UK remained outside the EU, might be (notwithstanding Northern Ireland’s special status leaving it effectively in the EU’s single market for goods).
In many ways, an independent Scotland would look well positioned to join the EU. It would certainly be eligible to apply as a European state, as Tobias Lock argues (chapter two). And, compared to the range of states that have joined the EU in the last sixty-three years, Scotland does not look like an outlier.
A whole range of states, large and small, have joined the EU since the first enlargement in 1973 which brought in Denmark, Ireland and the UK. In total, twenty-two states have joined and one, the UK, has left. Those states include eleven countries from central and eastern Europe and the western Balkans, (Kirsty Hughes looks, in chapter 15, at the lessons of that enlargement for Scotland) and three of the European Free Trade Area states – Austria, Finland and Sweden (see Saila Heinikoski chapter 14 for a look at lessons from that 1995 EFTA enlargement). They include the still-divided island of Cyprus, and the group that joined in the 1980s – Greece, Portugal and Spain – having emerged from dictatorship in the 1970s. They also include a number of states who had re-gained their independence before joining the EU – including the Baltic three, and the ‘velvet divorce’ that split the former Czechoslovakia into two states.
In the face of a legally and constitutionally valid independence process, it is hard to argue that an independent Scotland (with 47 years experience as part of the EU, within the UK) would not be likely to succeed in joining. James Ker-Lindsay (chapter 13) argues Scotland would rapidly overtake the western Balkan candidate and potential candidate countries if it were independent in the next few years.
However, there are many questions that need to be addressed to understand how that accession process may play out. If it is not too long after the end of the transition period in December 2020 (until when the UK will continue to be part of the EU’s single market and customs union), then Scotland will not have diverged very far, quite probably, from the EU’s body of law and regulations – its acquis.
The further the UK, and Scotland, have diverged by the time of a potential Scottish application to join the EU, then the longer the accession process may take. And, in addition, Scotland as an independent state will need to establish institutions, regulatory bodies and laws, that previously sat at UK level during the UK’s period of EU membership.
Nicola McEwen (chapter three) considers whether in devolved areas, Scotland could, after the end of transition in December 2020 (unless that period is extended), stay aligned to EU laws – as the Scottish government aims to – and what challenges both political and technical that might raise. Whether the UK, in reserved areas, does diverge very much or not will clearly, she argues, impact strongly on how close Scotland stays to EU laws. And in devolved areas, the powers of the Scottish parliament versus those of the Scottish government come into question when looking at how decisions may be taken on alignment with EU laws.
The fastest an independent Scotland might join the EU is about 4-5 years from independence[ii]. Scotland would have to apply, be accepted as a candidate, participate in negotiations and undertake all the adjustments that would be demanded by the EU during that process, followed by all 27 EU member states ratifying the EU treaty (as Tobias Lock outlines in chapter two). It is hard to see it being much swifter. Scotland, once it joined the EU, would be represented in a whole swathe of EU institutions as Steve Bullock (chapter 5) discusses. It would be in the European Council, the European Parliament, and have a European Commissioner – as well as being in several other bodies. Scotland would have substantial voice and influence, he argues.
After a ‘yes’ vote in an independence referendum, and after a ‘divorce’ agreement with the UK, Scotland would be in a transition period – from the UK and towards the EU. Fabian Zuleeg argues (chapter four) that an independent Scotland might need to take a leaf out of the Brexit transition period that the UK is currently in. Scotland, he argues, might be de jure independent but de facto still part of the UK’s economic area for a while before then agreeing an Association Agreement with the EU, and perhaps associate membership of the European Economic Area, ahead of ultimate EU membership.
Brexit has several implications for an independent Scotland being an EU member state, not least the question of the Scotland-rest of UK (rUK) border. Three chapters in this report address this. Imelda Maher (chapter 7) looks at the Common Travel Area between the UK and Ireland, and asks how and whether this might apply to an independent Scotland. She argues Scotland, like Ireland, probably would get an opt-out from the border-free Schengen zone, so allowing free movement across the former UK and Ireland to continue as well as free movement in the EU (once Scotland is a member state). This would also require the UK’s and Ireland’s agreement to Scotland being part of the Common Travel Area.
Katy Hayward (chapter 6) considers what the Scotland-England land border would look like and the importance, in goods trade, of knowing what is crossing the border, whether it meets the relevant criteria for doing so, and having the means to stop goods if they don’t meet those criteria. She emphasises the need for cooperation on both sides of a border for it to function well. An independent Scotland, she argues, should look to the Republic of Ireland’s sea border with Britain to understand the likely border issues raised – rather than hope for any special treatment such as the Withdrawal Agreement gave Northern Ireland.
David Bell (in chapter 8) considers the economics of Scotland’s border with rUK being an external border of the EU. He underlines that barriers to trade are usually bad for growth and prosperity but the likely impact on an independent Scotland of being in the EU’s customs union and single market will not be fully clear until we see what sort of future UK-EU agreement is reached. However, Brexit arguments and analysis about trade frictions between the UK and EU translate across to the Scotland-rUK border. Trade frictions would be bad for Scotland and also for rUK. But there would be scope to negotiate bilaterally around some parts of services trade since the EU’s single market for services is not complete. How other dynamics would balance out is also an open question – such as whether an independent Scotland in the EU might attract more foreign direct investment or whether skilled workers might be attracted to rUK jobs.
There are a range of policy areas where Scotland would have to either revert to EU policies having moved away from them or where, as a newly independent state, it would have to start to meet EU criteria that were previously met at UK level. David Gow (chapter 9) looks at the thorny issue of the EU’s deficit and debt criteria and the question of currency. He argues that the binary divide in the debate – many arguing accession is either simple or impossible – is not helpful. He looks at the example of Croatia, which joined the EU while not having met its fiscal criteria (though it had been on a downward path) but then had to adjust rapidly once within the EU. But cutting the fiscal deficit, to get on such a downward trajectory, would raise political and economic challenges. And an independent Scotland would need to commit to joining the euro.
Arno van der Zwet and John Connolly (in chapter 10) consider the neuralgic question of re-joining the EU’s Common Fisheries Policy (CFP). They see no way around Scotland having to do this, and explore how difficult the relationship between much of the fishing sector and Scottish government might become. They also consider whether there could be concessions or assistance the Scottish government could negotiate with the EU to ease Scotland’s return to the CFP.
Scotland would be expected to participate fully in the EU’s justice and home affairs field of policy. Kenneth Campbell (chapter 11) looks at some of the key areas for cross-border cooperation including gathering of evidence and recognition of judgements in civil cases, and criminal justice cooperation including the European arrest warrant. He argues that, once the UK has left the transition period, there will be divergence in many areas so an independent Scotland aiming to re-join the EU would have to take steps to converge back to EU processes, including several possible interim steps prior to membership. Scotland would not, he suggests, have any chance of getting the sort of ‘opt-in’ to freedom, security and justice measures that the UK had but might perhaps have more of an argument for having a Schengen opt-out.
In the area of common foreign and security policy, joining the EU’s various frameworks and processes would seem relatively straightforward for an independent Scotland argues Daniel Kenealy (chapter 12). Having said that, an independent Scotland would need to align with EU foreign policy positions, show it had the laws and structures that gave it sufficient capacity to participate in EU foreign and security policies together with credible forward commitments on its future foreign policies. It would take several years to scale up diplomatic and military capabilities. The path to being a full EU member in this area would be fairly clear but time-consuming and resource-intensive.
Overall, as the various analyses and perspectives in this report show, the process of joining the EU is a multi-faceted one and would take substantial and detailed political and technical resources and considerable work over some time. In the end, as the experience of other EU enlargements show, accession is a manageable if major process. In this report, the aim is to bring together a range of expertise and differing points of view to cast light on what that major process would look like and the questions it would raise.
[i] Kirsty Hughes (2016) “Scotland and Brexit: shockwaves will spread across the EU” Policy Paper, Friends of Europe
[ii] Kirsty Hughes (2019) “Independence, Scotland and EU Accession: Challenges Ahead” Policy Paper, Scottish Centre on European Relations; Kirsty Hughes and Tobias Lock (2017) looked at how it might even take only 3-4 years: “An Independent Scotland and the EU: What Route to Membership?” European Futures website
1. Overview: The Politics and Processes of Accession – Kirsty Hughes
Part One: Joining the EU: Processes and Adjustment on the Way
2. Negotiating EU accession: Lessons for an Independent Scotland – Tobias Lock
3. Devolution and Alignment with EU Laws – Nicola McEwen
4. Transition from the UK and to the EU – Fabian Zuleeg
5. What Representation would an Independent Scotland have in the EU? – Steve Bullock
Part Two: Scotland’s Border as an External Border of the EU
6. Borders: Lessons from Ireland – Katy Hayward
7. Borders: Free Movement and the Common Travel Area – Imelda Maher
8. The Economics of the Scotland-rUK Border – David Bell
Part Three: EU Policy Challenges and Adaptation
9. The EU’s Fiscal Criteria: Debt, Deficit and Currency Questions – David Gow
10. A Return to the Common Fisheries Policy? – Arno van der Zwet and John Connolly
11. Justice and Home Affairs – Kenneth Campbell QC
12. Scotland’s Accession and the EU’s Common Foreign, Security and Defence Policies – Daniel Kenealy
Part Four: Lessons from Current and Previous Enlargements
13. The Fast Track Queue for EU Membership: Scotland versus the Western Balkans – James Ker-Lindsay
14. Lessons from the EFTA Enlargement: How Would the EU Accession Process Look Today? – Saila Heinikoski
15. Lessons for Scotland from the EU’s Enlargement to Central and Eastern Europe – Kirsty Hughes
List of Contributors
Prof. David Bell CBE FRSE is Professor of Economics at the University of Stirling. He is affiliated to the Centre on Constitutional Change and his research interests include the economics of social care and of subjective well-being, the Scottish economy and the economics of education.
Steve Bullock is an ex-UK Civil Servant who has worked in the Department for International Development, the European Commission, the UK Representation to the EU, and as an advisor to an MEP. He is now a political commentator and tweets as @guitarmoog
Kenneth Campbell QC is an Advocate at Arnot Manderson Advocates, Edinburgh, a Barrister at Lamb Building, London and doctoral researcher in the Law School at the University of Edinburgh. His expertise includes public law and professional liability.
Prof. John Connolly is Professor of Public Policy at the University of the West of Scotland. He researches and teaches in the areas of policy analysis, crisis management, public health and multi-level governance. He is Editor of ‘Contemporary Social Science’, which is the flagship journal of the UK Academy of Social Sciences.
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.
Dr Katy Hayward is Reader in Sociology at Queen’s University Belfast. Her research interests include political sociology, European integration, cross-border conflict and cooperation, peace and conflict processes, and Brexit and Ireland.
Dr Saila Heinikoski works as a Senior Research Fellow in the EU Research Programme at the Finnish Institute of International Affairs (FIIA). Her areas of expertise include EU border management, free movement policy and national EU discourses.
Dr Kirsty Hughes is Director and founder of the Scottish Centre on European Relations. A researcher, writer and commentator on European politics and policy, she has worked at a number of leading European think tanks.
Dr Daniel Kenealy is a Lecturer in Public Policy at the University of Edinburgh and the lead editor of The European Union: How Does it Work? (Oxford University Press).
Prof. James Ker-Lindsay is visiting professor at the London School of Economics and a research associate at Oxford University. He has written extensively on South East Europe and on secession and recognition in international politics. He is the author of “The Foreign Policy of Counter Secession: Preventing the Recognition of Contested States” (Oxford University Press).
Prof. 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.
Prof. Imelda Maher MRIA is Dean of Law and Sutherland Full Professor of European Law in the UCD Sutherland School of Law.
Prof. Nicola McEwen is Professor of Territorial Politics at the University of Edinburgh; Co-Director, Centre on Constitutional Change, and Senior Research Fellow, UK in a Changing Europe.
Dr Arno van der Zwet is a Senior Lecturer at the University of the West of Scotland and a Senior Research Associate at the European Policies Research Centre at the University of Strathclyde. His research interests include territorial and European policies.
Dr Fabian Zuleeg is Chief Executive and Chief Economist of the European Policy Centre. He has worked as an economic analyst in academia and the public and private sectors. He is Honorary Fellow of the Edinburgh Europa Institute and Honorary Professor at Heriot-Watt University. He is a member of the Scottish Centre on European Relations’ Advisory Board.