Would Scotland Need a Phased Approach to the EU?

Kirsty Hughes | 14 May 2017

© 2017 Kirsty Hughes

Nicola Sturgeon has suggested Scotland might need ‘a phased approach’ to regaining or retaining EU membership in her Andrew Marr and Robert Peston interviews this Sunday. Is this right? And if so, is it a reasonable approach or a fudge to cover the different views amongst independence supporters, about a third of whom voted leave?

Scotland’s options

Since Scotland, like the rest of the UK, currently meets almost all criteria for EU membership – apart from where the UK has opt-outs – then if it actually became independent before the UK leaves the EU in March 2019, there would be an opportunity for seamlessly staying in. But since it could take two years or more after an independence vote to separate from the rest of the UK, that seamless option is now pretty much impossible since a 2017 referendum is not in prospect.

Nicola Sturgeon’s proposal to hold a second independence referendum between October 2018 and March 2019 – rebuffed by Theresa May – would give Scottish voters a choice about independence before the UK formally left the EU. But even so it wouldn’t give enough time to leave the UK and become a full EU member state all by March 2019. The main advantage of Sturgeon’s proposed timing is simply this. If Scotland chose independence before the UK had left the EU then it could aim to keep all its laws fully in line with the EU’s laws (and agree this with the rest of the UK as part of UK-Scotland divorce talks), so that it was in a position to re-join the EU relatively quickly, and avoid the costs inherent in unwinding then reapplying EU laws.

But given May’s reluctance to allow an independence referendum before March 2019, then – unless Brexit is reversed or May changes her mind – Scotland would leave the EU with the rest of the UK in March 2019. UK laws at that point may start to diverge from EU laws – even if the Great Repeal bill first simply translates EU law into UK law (something that is not simple at all).

A phased approach if Scotland says ‘yes’ to independence after March 2019?

If a second referendum were held in 2020 or 2021, and Scotland voted ‘yes’ to independence in the EU, would it need a phased approach to re-joining?

A ‘yes’ vote in 2020 or 2021 would mean Scotland would already be outside the EU, and would need to apply to re-join once it was independent – say in 2022 or 2023. Talks and ratification would then take at least a couple of years, probably somewhat longer.

EEA or Association Agreement?

Would it, at this point, then be sensible to first join EFTA and the European Economic Area (EEA)? Note that only being in the EEA gives a state membership of the EU’s single market – but to join the EEA from outside the EU, a country must first join EFTA.

In recent years, the European Commission, and EU, has tended to agree special trade deals with candidate countries known as Association Agreements. So it may well be that Scotland would be offered its own specific Association Agreement that would build on the fact that its laws would probably still be fairly close to EU laws and would help it return to being fully in line with EU laws (including in areas where the UK currently has opt-outs such as in a range of justice and home affairs issues). No country has ever joined the EEA as a transition to the EU after all.

But one thing that might change this normal route is the expectation that in 2020 or 2021 the UK – including Scotland – is likely to be in a transitional phase itself in its relations with the EU (assuming talks have not broken down completely). If this transitional deal, ahead of a final UK-EU27 trade deal, keeps the UK fairly close to the EU’s single market – or even possibly in the EEA (though this would require it to retain free movement and a role for the European Court of Justice) – then the EU may propose other routes than an Association Agreement.

If the UK is actually in the EEA, then doubtless it would make sense for Scotland, once independent, to stay in the EEA too while it negotiated full EU membership. If the UK has a bespoke transitional deal, this may not make sense for Scotland – since the UK’s deal will be a staged process moving away from, not towards, full compliance with EU laws. Again, the European Commission is likely to make its own proposal on the best relationship for Scotland with the EU while it completes membership talks – whether to retain the same transitional deal the UK has or to have a different set-up.

EEA then EU – a fudge or straightforward?

If the Scottish National Party are clear that they want to join the EU as fast as possible once an independence referendum has happened, then joining the EEA before joining the EU may only make sense if the UK itself is transitioning out of the EU via the EEA (so Scotland would already/still be in the EEA (since the UK as an EU member state is currently also in the EEA).

An independence referendum after March 2019 would certainly mean that Scotland would have to apply to re-join the EU, a process that would take time – and so ‘a phased approach’ is a reasonable description of that process.

If the SNP present such a phased approach as being first focusing on the EEA and only later applying to re-join the EU, that would look like a fudge. But this is not what Nicola Sturgeon said in her Marr and Peston interviews. Rather she said to Marr ‘”It may be by necessity, even if we didn’t want that.”

The key question here is not in fact the EEA. The key question is whether an independent Scotland would apply immediately for EU membership – the route to that membership would then be discussed with the EU. So far, joining the EU not the EEA remains SNP policy. Unless the SNP policy is or becomes one of delaying its EU membership application in favour of joining the EEA, there is no fudge, just a recognition that instant EU membership after March 2019 is not possible.

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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 previously worked for a number of leading European think tanks.