During the Scottish independence referendum campaign of 2014, the mendacious “Better Together” threat that
Scotland would be expelled from the European Union if it voted for independence arguably swung the vote to No.
In the
Brexit referendum of 2016, Scots voted 62% to remain in the EU, but that had zero effect in preventing Scotland being undemocratically wrenched from the EU, thus further affirming Scotland’s subservient constitutional status within the UK.
Both these results affirm an EU-friendly sentiment among Scots, and recent polls indicate a broad majority in favour of rejoining the EU. However, we must consider what the EU will look like in a few years when Scotland could possibly accede, given the disastrous efforts by Ursula von der Leyen to integrate Ukraine in the EU. Does Scotland really want to be part of an increasingly irrational, militant and bellicose union?
To the extent that the SNP government has planned for post-independence policy, they have explicitly linked a vote for Yes to rejoining the EU. This is without even the pretence of debating serious alternatives such as membership in the European Free Trade Association (EFTA) and the European Economic Area (EEA) or Single Market.
The current members of EFTA are Norway, Lichtenstein, Iceland, and Switzerland. Along with the 27 EU member states, all participate in the four freedoms of movement: workers, goods, services and capital. All except Switzerland are members of the EEA, which conforms to the four freedoms through a very complex series of bilateral agreements with the EU.
EFTA members can also participate in EU programs and agencies as they see fit, such as the Erasmus student exchange program and scientific research grants. EFTA member states value their sovereignty over EU collective decision making and are free to make trade deals independent of the EU, which EU members cannot.
There are those that say that as a member of EFTA, Scotland would be a “rule taker not a rule maker”. However, under the EEA Agreement, though they do not have a vote, EFTA/EEA states must be consulted and do in fact help shape EU
law as it pertains to the EEA.
Of course, to achieve membership in the EU or EFTA, Scotland must become recognised as independent. Given the repeated refusal of former, current, and potential future UK Prime Ministers to countenance granting a Section 30 order, and the November 2022 UKSC ruling over the issue, the route to independence through a “legal” (under UK law) referendum is definitively closed.
Therefore, to get out of this UK constitutional logjam, Scotland must pursue an alternative “democratic event” to affirm majority support for independence. As it stands, the inchoate proposals are “plebiscite elections” in Westminster or Holyrood, or a referendum over extending powers to the Scottish Parliament to organise an independence referendum. Precise details on any option have yet to be agreed upon and legally codified.
Let’s assume there is an agreed/codified referendum over extending powers on, say, September 18, 2024, and the result is Yes. How would the EU and EFTA evaluate the legitimacy of this assertion of sovereignty and independence, and what would be the criteria for accession to these institutions?
For the EU, accepting the legitimacy of such a “democratic event” would be highly problematic. While there have been EU politicians who have expressed support for Scottish membership, the EU is not a happy place right now. Leaving aside the issue of Ukraine, according to the EU treaties there must be unanimous consent at all stages of the accession process. Even accepting Scotland as a candidate for EU membership could be easily derailed by Spain, who does not want to give Catalonia any ideas.
EU accession for Scotland, at least according to the treaties, could take 10 years. Assuming the EU commission grants unanimous consent for Scotland’s candidacy, it must still go through the accession process. There are 35 Chapters of the Acquis, or areas of EU law which must be conformed to, and there would need to be requisite Scottish institutions in place to apply these acquis. Anything can be derailed by any member state at any
stage. There would be years of negotiation and institutional building required.
EFTA accession, on the other hand, is much simpler. We at the Scottish Sovereignty Research Group have been in contact with EFTA and attended a conference at the EFTA House in Brussels last September.
Though we cannot speak on their behalf, they have indicated that for EFTA to accept the legitimacy of Scottish independence, there would need to be a “democratic event” indicating majority support for independence, not necessarily a referendum.
Following a positive outcome, the Scottish Government would send a letter to the EFTA Council requesting membership. Presuming a positive response at the following council meeting, the EFTA/EEA states would use their influence within the EEA Council to get Scotland back in the single market.
This would take a few months, not 10 years. As for membership in the EU Customs Union, Scotland would need to make a direct request to the EU commission and negotiate a bilateral treaty as Turkey has. Nothing in EFTA membership prevents Scotland joining the EU at a later date.
In preparation for such a democratic event, it would be important for the Scottish government to be in contact with the EFTA Secretariat, informing them of their plans and drawing on their expertise to build the Scottish institutions necessary to be a member in full standing.
The Scottish government under Humza Yousaf faces a stark choice. They can work with Alba, and other pro-indy parties to agree on a democratic event to affirm majority support for independence, rapidly join EFTA/EEA and be back in the Single Market, and begin setting up the functional governing structures to be a modern, democratic state.
Or, they can languish in the fanciful rhetoric of independence and rapidly joining the EU, with no coherent and feasible plan of achieving either, definitively extinguishing the prospect of independence in our lifetimes. I hope history will judge their choice favourably.
Dr Mark McNaught is founder of the Scottish Sovereignty Research Group and is Maître de conférences teaching US/UK history and politics at the University of Rennes, France.
www.heraldscotland.com
