Scotland & the EU

Scotland and the EU: a timetable for change

Guest opinion from James Aitken, solicitor and founder member of Lawyers for Yes.

I was quoted just a few weeks ago in an article in the National.  I had been asked what might happen if the UK votes to leave the EU but Scotland votes to stay.  I said the Scottish Government’s priority should be to make its voice heard within the various EU institutions and with its political groups as soon as possible.

Here we are within a week of the EU referendum vote and the First Minister is doing exactly that. It is early days yet but the positive response she is receiving is welcome. The First Minister has also set up a panel of advisers to look at how Scotland might be able to remain a part of the EU.  The Scottish Parliament has also overwhelmingly stated that it is its wish for Scotland to remain part of the EU and has asked the First Minister to do all she can to make this happen.

So how could this happen in practice?

Before I look at the three main options being discussed it needs to be acknowledged that this is uncharted territory.  It is also difficult to even to begin to list all of the agendas at work here.  Politics will play as important a role as the applicable law.

The first option is that primarily held by the UK Government and the Scottish Conservatives.  Events have already overtaken this option.  The Scottish Parliament will not stand aside and let the UK negotiate its future relationship with the EU. The reason for this is a simple one.  It is now clear Scotland aspires to a very different relationship with the EU than does the UK.  Scotland now has a different foreign policy to that of the UK.

A second option is that Scotland remains a part of the UK and some form of “distinct status” is agreed with the EU.  There are numerous examples of places having a distinct status with the EU via a member state.  This includes Greenland, the Azores, Gibraltar and the Aland Islands. This shows how pragmatic the EU can be when it suits.

The option most talked about is the Denmark/Greenland option as that involved part of a EU member state voting to remove itself from the EU. The Kingdom of Denmark comprises Denmark and two autonomous constituent countries in the North Atlantic Ocean: the Faroe Islands and Greenland.  The Faroese have control of most domestic matters and Greenland has an increasing degree of autonomy and is one of the EU’s “overseas countries and territories”.

So is this an option for Scotland?

There are a number of issues with this option.  Let’s start with the obvious. The Scottish situation is not the same if you take Denmark as the UK and Scotland as Greenland in the analogy.  It is the UK that has voted to leave and Scotland, presently a consentient part of the UK, that wishes to stay. Denmark is an independent nation. Scotland is not. It is also the case that each of the EUs “distinct status” relationships are with island territories or with relatively small, in the population sense, entities.  Scotland is neither.

Would the EU accept a non-independent Scotland as a member state?  That seems unlikely.  The EU is made up of independent nation states. Granted some territories have a distinct status with the EU but this requires a link with an independent nation state which is a full member of the EU. Can you imagine the reaction of say Spain to even the suggestion that a non-independent nation, region or territory was to be become a full member of the EU.

For the sake of argument, let’s say the EU would allow in principle this new form of distinct status.  Scotland would require a far greater degree of autonomy than it enjoys presently.

Would Westminster agree to a federal UK or a “devo max” or full fiscal autonomy” relationship with Scotland?  That would still mean foreign affairs, defence and a number of economic matters remaining at Westminster or are somehow “shared”. EU member states now discuss foreign affairs and defence issues as a matter of course.  The EU is of course primarily an economic is trading block. Scotland would be in the position of having to discuss many matters it does not have the final say on before it could discuss them with the EU. This is bound to cause difficulties.  What if the UK disagrees with Scotland on some point of its relationship with the EU?

It also cannot be ignored that the UK has at no point even come close to agreeing a level of autonomy for Scotland such as “devo max” or full fiscal autonomy.  Also, why would the EU accept this type of arrangement given its recent history with the UK?

The third option is an independent Scotland that becomes or remains a member of the EU.

That of course is the position taken by the YES campaign in 2014.

Again this option is not without its difficulties.  These difficulties were articulated during the first independence referendum.  The attitude of the Spanish is but one of these issues. It is though worth looking at this from a different angle for a minute.  These are also troubling times for the EU.  What would happen to the EU if it were to refuse Scotland membership?  A Scotland who has effectively been a member for over 40 years and who voted to remain a part of the EU.

The EU may simply accept Scotland as the successor member state to the UK but we can’t rely on that level of pragmatism.  Whilst the Greenland example does provide partial precedent for this, I suspect there may be too many competing agendas for this to happen. That said, I do hope that the various EU institutions increasingly allow Scottish Ministers to attend in place of their UK counterparts.

Now to the big question. Will the EU deal with a non-independent Scotland?  If continuing member status is off treble then in short, no. Then formal negotiations will not take place until Scotland has voted for its independence.

With this in mind I think that Scotland needs to prepare for another step.  Unless Scotland is placed on some form of “fast track” we need to have a more attainable short term goal.  This should be membership of the European Free Trade Association (EFTA) and the European Economic Area (EEA).  The longer term goal being full membership of the EU. The EEA comprises three of the four member states of the EFTA: Norway, Iceland and Liechtenstein – not Switzerland, and for now the 28 member states of the EU.

This option has a number of advantages when you consider the timescales we are facing.  We gain most of what we are looking for and it removes many of the short term political issues. It gives us access to the single market and allows for the free movement of peoples.  It is also worth remembering that agriculture and fisheries are not covered by the EEA

It also gives us more time to figure out our relationship with the UK.  The UK has made it clear that it does not want the same relationship with the EU as Scotland does. The conundrum for the UK is that the EU has made it clear if the UK wants access to the single market it must accept free movement of people.  That will make it very difficult for the UK to join the EEA.

This is one of numerous possible scenarios:

  1. February 2017 – the advisory group confirm that independence is our only option if we wish to remain a member of the EU
  2. February 2017 – there is a clear majority for a second independence referendum
  3. March 2017 – a second independence referendum is called for June 2017
  4. June 2017 – the second independence referendum is won by the pro EU side
  5. July 2017 – talks begin between Scotland and the EFTA, the EU and the UK
  6. July 2017 – Scotland submits application to join EFTA
  7. October 2018 – Scotland joins the EEA
  8. October 2018 – Scotland formally applies for EU membership
  9. October 2018 – the UK leaves the EU
  10. October 2018 – Scotland leaves the UK
  11. October 2018 – the UK is still negotiating its future relationship with the EU
  12. January 2021 – Scotland becomes a full member of the EU


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About the author

James Aitken

James Aitken is a partner in and co-founder of Legal Knowledge Scotland. James has over 20 years experience as a private client and tax lawyer and tutor in Scotland, London and somewhat unusually for a Scottish lawyer, Chicago.

Since returning to Scotland in 2002 James has served on a number of Law Society of Scotland committees and has also played a leading role in the debate over the transfer of tax and fiscal powers to the Scottish Parliament. James was a co-author of Reform Scotland's well received "fiscal powers" and "devo plus" papers and more recently authored a chapter titled "The continuing battle for Scottish tax powers" in the Hassan/Mitchell book: "after independence".

James is originally from Galashiels and splits his time between Edinburgh and the Borders and is the immediate past Convener of the Scottish Borders Chamber of Commerce.


  • Lets consider this highly realistic scenario : RUK (Rest of UK) does not continue to be a member of the Single Market, and at the very least will lose some of its access to financial services market : a chunk of this will move to the EU. Step forward Scotland, and claim your share of this huge prize. You also gain access to the EU-Canada trade agreement for life (unlike RUK, which only have it till they exit), which is likely to be in force within 18 mths. Alternatively, Scotland ties itself to an economically poorer RUK, and gets dragged down with it.

    • Yes but we need some form of trade agreement also with rUK and EU meaning our trade with both is protected whilst Scotland stays and rUK leaves.

  • I don’t agree with your conclusion or, therefore, your timetable, James. Your pessimism about becoming recognised as a continuing member – by far the administratively easiest scenario, not only for Scotland but for the EU, seems to me to be based on nothing at all. You reference only two points and in the vaguest terms. First, Spain’s supposed objection. Rajoy’s own position is at present a very shoogly peg and he has always stopped short of any absolute statement of this view – as Paul Kavanagh has pointed out several times – and for the very good reason that his own power base depends on Galicia’s share of fishing in Scottish waters as fellow members of the EU. Secondly, your other ‘ground’ is a vague reference to the 2014 referendum’s arguments; but this is hardly convincing. It is apples and pears – for the situation, as you partly concede, is entirely changed this time. The EU has no ‘greater’/more powerful member(the UK) to please/keep on side. Indeed, it even has political reasons for discommoding that departing and now thoroughly resented state. The ‘so called’ EEA/EFTA ‘route’ is a dangerous – and expensive – side-track and it in any case misses the entire point – as Nicola Sturgeon acidly and accurately pointed out to Ruth Davidson in Holyrood at FMQs this week. Scotland didn’t vote for a trade deal but for our membership of the EU with all that that implies and involves. For example, the freedom of movement principle which has always favoured ambitious and capable Scots and which has enriched our society, culture – yes, AND economy so much in recent decades. There are no reasons of a practical, political and certainly none of a legal nature for an unvoted for EEA/EFTA bypass. Scotland wants our place in Europe properly – that is going to mean what we voted for and will vote for next – Independence in Europe by as swiftly arranged a referendum as possible. Preferrably this should happen before whichever Tory is finally in Downing Street can press the Article 50 button – so that nobody can argue that we were formally counted as ‘leaving’ by the fiat of Gove, May or God save the mark, Hunt. There has never been a clearer case for an independence referendum being urgently required. Future generations will not forgive us should we miss our and our nation’s moment.

  • I won’t comment too much on the possible timescale, as it is hypothetical, but this:

    October 2018 – the UK leaves the EU
    October 2018 – Scotland leaves the UK

    It’s maybe a bit pedantic, but after all the decades of effort we’ve gone to, and everything we’ve had to put up with, I don’t want to have to share a date for our Independence Day with England or anyone else, thank you!

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