© 2018 SCER
The Scottish Centre on European Relations, in partnership with the Edinburgh Europa Institute and the European Commission Office in Scotland, organised a public panel discussion in Edinburgh in November at the University of Edinburgh. This was the last in a series of four events supported by the European Commission Office in Scotland that SCER ran this year in Dundee, Oban, Aberdeen and Edinburgh. The three speakers were Dr Kirsty Hughes, Director of SCER; Iain MacWhirter, Political Editor of The Herald; and Dr Rebecca Zahn, Senior Lecturer in Law at the University of Strathclyde; and the chair was Dr Tobias Lock, Co-Director of the Edinburgh Europa Institute.
Each member of the panel made introductory comments followed by a lively question and answer session. The EU and UK had agreed the draft withdrawal agreement on 14 November, making the event particularly timely. The event was focused around three broad topics: the Brexit deal and the path ahead; the Scottish dimension of the deal and the politics, and the likely outcomes for citizens’ rights.
The Brexit Deal and the Path Ahead
At the time of the event, the draft withdrawal agreement had been agreed but not yet published. However, the key outlines of the deal were already clear. The withdrawal agreement would cover all aspects of the UK’s withdrawal from the EU but not the future relationship. The political declaration would cover the future relationship but only as an outline framework and without legal weight, unlike the withdrawal agreement which would be a legally binding treaty.
Key issues in the withdrawal agreement cover the rights of EU citizens in the UK and UK citizens in the EU, the UK’s outstanding financial obligations, transition (and any extension of transition), governance and a backstop provision to ensure the Northern Ireland/Ireland border remained open and frictionless. There had already been indications that the UK might have the option to extend the transition period for 1-2 years rather than move straight into the backstop at the end of December 2020 if the future relationship deal had not been finalised (highly unlikely for a detailed complex treaty expected to cover trade, security and other cooperation).
It was also expected that the backstop would include a basic customs union to cover the whole UK as well as more detailed customs and regulatory provisions for Northern Ireland. While the expectation was this would prevent a substantial customs border in the Irish Sea, there would be regulatory barriers and more intense, highly scaled up checks on food, live animal and related products. It was expected that any backstop once triggered would need both EU and UK agreement for the UK to exit from the backstop.
This likely Brexit deal was seen as having negative economic and democratic impacts. Even in a basic customs union, the UK would not have frictionless borders with the EU so there would be a major hit to goods trade, including for companies operating cross-border supply chains. Services – without their current access to the single market – would be particularly badly hit. In a customs union, the UK would also be a rule-taker on trade policy, which compared to its say and vote as a member state would create a significant democratic deficit.
There was a discussion as to whether this agreement was likely to represent a ‘blind Brexit’ i.e. one where the future relationship was unclear and uncertain. This could be seen in two ways. Firstly, the future relationship was unclear, whatever the content of the political declaration as the backstop was not legally binding. Secondly, however, the fact that the backstop allowed for an indefinite customs union suggested – even though it is in the withdrawal agreement – that it might be form the basis, in part, for a future relationship, including in terms of some of its level-playing field requirements.
The discussion then focused on the upcoming politics of ratifying the deal or not. The UK continues to face considerable uncertainty. The deal once finalised at a late November summit might not pass the House of Commons. If it was rejected there were a range of possible routes ahead. There might be Commons support for a ‘no confidence’ vote leading to an election – but it looked more likely there would not be majority support for this. There might be Commons support for a people’s vote but this would require Labour to come on board and enough Tory ‘remainers’ to vote for it too – not impossible but certainly not guaranteed. Theresa May might go back to Brussels and see if there were any tweaks to the deal to enable her to hold a second Commons vote.
But if none of these options got support in the Commons, then the political crisis, that rejection of the deal would entail, would get even deeper. In the face of a looming deeply damaging and chaotic ‘no deal’ exit, there would surely be sustained political efforts to resolve the crisis. Whether this would be through an election, support for the deal on a second vote, or support for another referendum remains uncertain. An election or another referendum would also require the EU to agree to extend Article 50 – this was seen as likely but not definite. Another possibility, depending on the outcome of the 27 November case at the European Court of Justice, would be for the UK to unilaterally revoke Article 50.
The Scottish Dimension of the Deal and Politics
In the 2016 referendum, Scotland voted to remain in the European Union by a significant margin – 62% to 38%. All of the political parties in the Scottish parliament opposed Brexit during the referendum. Since the vote, only the Scottish Conservatives have moved to support the UK government’s approach to Brexit. Despite the collective degree of opposition, Scottish politics has largely failed to make an impact on the debate in London.
The Scottish government, run by the Scottish National Party, has continued to push for a ‘soft’ Brexit of remaining in the single market and customs union. This however has not been the policy of the UK government, and prime minister Theresa May has reiterated often her commitment to leaving both – although the Irish backstop includes the whole UK remaining in a customs union with the EU.
In the event that the Brexit deal is rejected by the House of Commons, however, it is possible that the option of a ‘soft’ Brexit or a ‘Norway’ model could return to the debate. Support for a People’s Vote within Scottish politics has grown in recent weeks – the SNP, Scottish Greens and Scottish Liberal Democrats all now formally back a further referendum as party policy. The Scottish parliament also voted 66-28 to support a People’s Vote.
Concerns have also been raised that Brexit will have significant negative implications for devolution, changing the paradigm of the devolved settlement. The EU Withdrawal Act was passed by the UK parliament despite the refusal of legislative consent by the Scottish parliament. This act has the potential to change devolved powers by allowing the UK government to act directly in EU areas which have already been devolved. It also seems unlikely that the Scottish parliament will support the various ongoing pieces of UK legislation to implement Brexit, such as the Trade bill. This raises the prospect of continued political disagreements between Scotland and the UK.
With the announcement of the Brexit deal, the SNP and others have argued that Scotland should be granted whatever special arrangements are made for Northern Ireland. Their case is that Scotland should not be economically disadvantaged by missing out on differentiation, and that Scotland’s pro-remain majority entitles it to closer EU ties.
However, the EU has agreed to those arrangements for Northern Ireland as a result of the historical and political circumstances on the island of Ireland. It is unrealistic to expect that the EU would extend those provisions to Scotland as well. Moreover, the Brexit deal only ensures that Northern Ireland will be partly aligned with the single market – which is far from an ideal scenario.
Brexit is unquestionably now a key factor in Scotland’s independence debate. First minister Nicola Sturgeon has previously stated that she will outline her view on the timing of a future independence referendum once the terms of Brexit became clearer. The prime minister’s Brexit deal, if it makes it through the House of Commons, spells out the UK’s withdrawal from the EU, while leaving most of the future relationship to be negotiated. While the political uncertainty remains, the UK government’s preferred Brexit path is now on the table.
Outcomes for Citizens’ Rights
The situation of EU citizens living in Scotland and the UK has been unresolved since the EU referendum. The UK government was reluctant to unilaterally guarantee the rights of EU citizens currently living in the UK without securing reciprocal rights for UK citizens in the EU. In recent weeks, however, the government has indicated that those EU citizens will retain their rights to stay in the UK even in the event of a no-deal Brexit.
The withdrawal agreement includes a number of provisions on citizens’ rights, as this is one of the core subjects of the UK’s withdrawal from the EU. The deal provides that the free movement of people between the EU27 and UK will continue during the transition period – currently envisaged to run to 31 December 2020. This transition period could be extended for up to two years (so to December 2022).
Under the agreement, EU citizens living in the UK up to the end of the transition period will be able to apply for permanent residence after having five years of residence. Citizens without those five years will be able to register to have time to obtain them. Family members living with EU citizens will also be able to apply. The withdrawal agreement requires that the UK’s application process be simple and fast. The Court of Justice of the EU will also have a role in the enforcement of citizens’ rights under the agreement.
The deal establishes that citizens exercising free movement will be able to apply to stay where they are at the end of the transition. This means that UK citizens living in the EU27 will only be able to obtain permanent residence in the country they are living in, not to get continued free movement in the EU.
If a no-deal Brexit is the eventual outcome, then the status of the millions of EU citizens in the UK and UK citizens in the EU would be in doubt. Citizens rights’ are a priority issue for the European Union, and in particular the European Parliament. Under a Norway option, free movement of people would be a requirement. If Brexit is reversed, free movement would continue as it is now.
The panel discussion at the University of Edinburgh is pictured above