Where does the Brexit vote leave the cause of an independent Scotland in the EU?

Back in 2012, prior to the Scottish Independence Referendum, I wrote a blog post entitled Answering how an independent Scotland would work in the EU is much more mundane than anyone seems to want to admit. While the title of that blog post remains true, the state of play on this issue has moved on – after Scotland did not vote for independence, but the UK did vote for Brexit.

I was further reminded of these issues this week after a debate with Scottish Tory MEP Ian Duncan about the Scotland and the EU, in which he determinedly maintained Spain would spike prospects of an independent Scotland joining the EU (Twitter thread here), and a bunch of tweets that I and others sent to BBC journalist Andrew Neil who made a series of errors about how Scottish membership of the EU could work (tweets by me, Alberto Nardelli and Steve Peers).

In this blog entry I am going to try to draw together all the strands of this debate, and conclude what can and cannot legitimately be said about Scotland and the EU at this stage. Be aware I am writing this on 12th February 2017, before the likely notification from the UK Government to trigger Article 50 to formally start the Brexit process.

The first aspect to bear in mind is how the politics have changed since 2014. When it comes to UK-Scotland relations, the offer of more devolved power made to Scotland in the month before the independence vote has largely not been delivered upon. The SNP has maintained its primacy in Scottish politics, with a smooth transition from Alex Salmond to Nicola Sturgeon as the leading character. Scotland voted to Remain in the EU, while the UK as a whole voted to Leave, meaning that since the EU referendum relationships have soured further – with Sturgeon expressing her discontent for how the devolved administrations are to be involved in the Brexit process, and no help whatsoever gained from the judgment in the Miller Supreme Court case. Theresa May might say the country is coming together behind her Brexit plan, but as I see it this is not happening in Scotland. The politics of Edinburgh – London relations appear more strained now than at any point since the establishment of the Scottish Parliament.

May’s government galloping towards a Hard Brexit nevertheless causes a problem for Scotland and its independence hopes. Were the UK to leave the Single Market and the Customs Union, how could Scotland respond? Were Scotland to stay in the EU somehow, or in the Single Market or Customs Union, that would necessitate some controls at the England – Scotland border – and that would come with an economic cost. That means some pro-Brexit, pro-Union folks think the case for Scottish Independence is over. But how did keeping in the UK in the EU against its will go, eh? Try keeping the UK together while consistently poking Scotland in the eye – I cannot imagine that ending well.

Conversely on the EU side, things have decisively shifted in Scotland’s favour. While in 2014 no-one really gave a damn about Scottish independence in the rest of the EU as far as I could tell, apart from some in the governments of Spain, Belgium and Romania who opposed it, the rest of the EU was neutral. Now there is still opposition – most notably from Spain – but there is quite some goodwill elsewhere. What was viewed as an issue for the UK and Scotland to solve now has an EU component, as Scotland voted Remain. The EU trying to do something for the pro-EU Scots is an easier line to sell politically now, and also makes the Scottish case decisively different from the Catalonia one. The behaviour of May and her Brexit lackeys Davis, Fox and especially Johnson have won her few friends in Brussels, while Sturgeon’s smoother approach has started to pay dividends there and in Berlin too.

Which then brings us to the technicalities of the matter – how could Scotland actually join the EU? There are essentially two ways that Scotland could do this – either by somehow taking over the UK’s membership of the EU (also known as Reverse Brexit as eloquently explained by Steve McCauley here), or through applying to join the EU as an independent state.

Neither option to allow Scotland to join the EU is technically or legally simple, but neither is the process ridiculously complicated either – and it is nowhere near as complex as Brexit is, not least because the process to join the EU is known, while the process to leave is not. Also recall that Scotland implements pretty much all of the acquis communautaire already, so were it to have to apply as an independent state it’d be the swiftest accession there has ever been. Yes, there are the issues of Schengen and borders, and the Euro, that are so far unaddressed – but how those could be worked out would depend on what variant of Brexit the UK ultimately ends up with, for whatever happens to Scotland depends on that in the short term. Also the argument that Andrew Neil advanced, that somehow Scotland would be behind the likes of Serbia and Bosnia & Herzegovina in a sort of queue to join is ridiculous – there is no queue, there are just criteria – and the country that fulfils them can join.

Scotland independence opponents also point to Jean Claude Juncker stating there will be no enlargement of the EU until 2020 (and Neil also made this point). I see that comment as irrelevant as he said it before the UK left the EU, and anyway a further Scottish independence referendum would be needed first, and then – as Scotland presumed last time when it voted – the actual independence day would follow at least two years later. With Scotland and the UK in no way able to organise a second Scottish independence referendum before 2019 anyway, all of this can only be solved by 2021 or so at the very earliest.

So my conclusion is that the politics today make it easier to foresee an independent Scotland in the EU than was the case in 2014, but the technicalities of how this could be done remain unclear, unprecedented, but not insurmountable.

(For the record: while in my 2012 blog post linked above I stated I was mildly in opposed to Scottish independence, by the time of the independence referendum I was in favour of it – as I state here. I am not Scottish and have never lived in Scotland. Make of that what you will)

[UPDATE 12.2.17, 1245]
Turns out that Zelo Street was blogging about this at the same time I was! His post critiquing Neil is here. There’s also a dissection of Neil’s errors from Young Team for Independence.