Scotland And Europe- How Realistic Are The Scottish Government’s Ambitions?
It has been a very interesting week in Scottish and UK politics, with constitutional issues and relationships-between the UK, Scotland and Europe- very much to the fore. Scotland’s First Minister has indicated in her speech to her party’s conference that there should be another referendum on Scottish independence. The First Minister, to the delight of some and the despair of others, has claimed that she has been forced into this action as Scottish Government proposals on Europe, published in December 2016, have not been taken seriously. In response, Prime Minister Teresa May has said ‘now is not the time’ with Brexit negotiations ongoing until at least 2019 and likely beyond, plus presumably a need for transition.
Now as regular readers will know, I’m no fan of the cause of independence, but rather than simply address the raw politics, I wanted to look in detail at the Scottish Government’s proposals. Ostensibly at least, the rejection of, and failure to seriously consider the Scottish Government’s proposals for a differentiated relationship for Scotland with Europe, is at the heart of the First Ministers’ desire for a fresh referendum. But are those proposals credible or possible? Is this indeed UK government intransigence, or is it the Scottish Government making unrealistic demands in the first place? After all, if they are serious, then perhaps the First Minister has a point. But if there are not credible, then that in my opinion, shows the demands for ‘IndyRef2’ in a new light.
This blog therefore, delves into the complicated world of single markets, customs unions and trade barriers, and tries to answer the question ‘Just how realistic are the Scottish Government’s proposals on Europe’. I hope this will provide some contribution to inform the debate.
(Trying To) Explain Single Markets, Customs Unions and Economic Integration and Trade
I’m not a trade negotiator, nor am I a business person, nor have I ever had to export goods or services. So in what follows, I have done my best to tease out some key points amidst the complexity. But if you see something that’s wrong, or too simplistic, let me know and I’ll try and correct if I agree.
I thought to kick off we should define a few terms, as understanding these is key to understanding the Scottish Government’s proposals.
There are varying degrees of economic integration, from a free trade agreement, right up to a unitary state. Free trade agreements (FTAs) are the basic starting points, giving states freedom on lots of issues denied them as members of say the European Union, but still seeking to remove trade barriers. The UK government currently wishes to negotiate lots of new FTAs when it leaves the EU, which currently the common approaches to such things as a member of the EU prevents.
Next on the ascending ladder of integration are Customs Unions– members of a Customs Union take a common approach to external tariffs with other countries, whilst allowing the free movement of goods within members of the Union. Countries can be members of a Customs Union but not a common market, or vice-versa. If you’re not in a customs unions, then customs checks on your imports, tariffs and compliance with complicated ‘rules of origin‘ likely become a time consuming and potentially expensive issue. If you have complex multi-country supply chains or rely on just-in-time systems, you’ll want to avoid rules of origin and customs checks if you can.
Next, we have a Common Market, the sort of arrangement that the EEC was developing in the 1990s prior to morphing into the EU. Common markets seek to remove most but not all barriers to trade including tariffs, harmonising of product and production standards and freeing up movement of goods, services, capital and people.
Next we have a single market, a combination of a common market with a customs union, and looking to remove both tariff and non-tariff barriers to trade, along with free movement of people across the market. The EU is a single market and the largest in the world with 500 million people, as is the EEA which includes EFTA members. Now EFTA countries (Norway, Iceland, Liechtenstein and Switzerland) are members of the EEA along with the EU members- and in return for complying with the rules and paying a fee, are full members of the single market ( though their ability to shape the rules is severely limited).
The single market, in order to work requires that members fully adopt a set of what is known as the ‘four freedoms’- free movement of goods, services, people and capital.
Finally, some members of the EU (but not all) are members of a further integrated economic and monetary union, whereby they have adopted a single currency.
If you’re still with me, we need to also remember about movement of people, facilitated by borders unions, of which the Schengen Area is the main one in Europe. Neither the UK nor Ireland are members of Schengen, mostly due to the pre-existing agreement following Irish independence, known as the Common Travel Area.
As we can see, it is complicated, with some EU members being full members of the single market and currency union, others outside the currency union, with the single market also having non-EU members in the single market via the European Economic Area and with some non-EU members having harmonised border arrangements, but not others.
Key points are that there is a ‘ladder’ of integration, starting with free trade, moving through customs unions and integration of standards, towards a full single market and currency union, and ultimately of course, a single unified state. As I understand it, the direction of travel of both the EU and of trade negotiation generally, is to move beyond merely eliminating tariffs on goods, towards removal of non-tariff barriers to trade in goods and services, such as the harmonisation of technical and product standards, intellectual property, labelling, licensing and removing services market barriers to enable financial and digital markets.
Actually, the former Deputy Prime Minister Nick Clegg, as part of his ‘Brexit Challenge’ series, lays this out rather well.
Brexit Issues and Economics
Now I should note in passing that I voted to remain, that I think exiting the EU is a very bad idea, that the challenges are immense, and that we seem to be creating the potential for economic self-harm without being likely to realise the promised benefits. But that is a whole other story so I won’t dwell on it. If you are interested then try this from the IFS, this from Wren-Lewis and to explain the background try these excellent papers from Nick Clegg, for example this on food and agriculture, or this on the complexities of the Brexit negotiation.
For the avoidance of doubt, I agree with those who think Brexit is a bad idea, but the purpose of this blog isn’t to discuss Brexit per se, but rather whether the Scottish Government has made viable alternative proposals.
So, what is the Scottish Government proposing?
The Scottish Government Proposals
The Scottish Government’s proposals on Europe are contained in a 62 page paper published in December 2016. The thrust of the First Minister’s case for a referendum is that the proposals in the paper haven’t been taken seriously. So what does the paper propose?
The first two chapters of the paper explain how we have arrived at this point, and the importance of the single market to Scotland’s interests. It is worth noting that the paper (para 34) suggests that a range of fundamental rights and interests of working people, social and environmental interests and wider common challenges such as climate change,may be under threat as the loss of the overarching framework increases the chances of a current or future UK government removing these protections and agreements.
Chapter 3 moves onto ‘protecting Scotland’s interests’ either by keeping the UK in the single market, or by examine ‘differentiated solutions for Scotland’. Chapter 4 then discusses a range of devolution and constitutional consequences of Brexit for Scotland and the UK, some of that discussion assuming that chapter 3 proposals are going ahead, before Chapter 5 summarises.
The paper initially hopes that the UK will seek to remain part of the single market and customs union as the best option for both the UK and for Scotland (and I agree with that). However since the paper was written in December 2016, the Prime Minister in her speech on Brexit, made clear that the option of staying as a member of the single market and customs union was not on the table, although somewhat mysteriously ‘access’ and ‘association’ were. Regardless of what we think of the UK government’s negotiation objectives, this does mean that the Scottish Government’s ‘differentiated proposals’ come into play.
Just before we get to the specifics though, let me say that in general terms the paper undermines its own credibility by not really addressing a fundamental point- the relative size and importance of the UK single market for Scottish trade, relative to the European market. Not only is Scottish trade with the UK market 4 times bigger, but trade with England has been growing far faster for Scotland than trade with the EU over the last 10 years- not the message that either the First Minister, nor the paper itself, seems willing to make clear. I’m sure the authors will point to mentions at various places of the UK single market, but it hardly makes it clear that one is 4 times bigger than the other nor the recent dynamics.
In my opinion this is yet again an example of the problem with the blindness of the independence argument- point out the problems with ‘thing A’ (in this case Brexit) whilst ignoring the problems with thing B (independence). This chart makes the point:
But back to the proposals.
What Is the Differentiated Proposal for Scotland?
If we accept that the UK is leaving the single market and Customs Union, then the Scottish Government essentially calls for Scotland to be allowed to stay in the single market (but not the Customs Union). This is called for based on the chapter two list of the benefits of membership, and the problems for Scotland if it leaves. I find these claims slightly overdone but convincing.
The key sections start at para 106. The Scottish Government says it is ‘essential’ that Scotland can ‘remain within the EEA and the European Single Market even if the rest of the UK leaves’. The paper claims that there are already differentiated arrangements within the EU and single market framework, nothing that parts of Denmark (Greenland,Faroes) have different relationships, as do the Svalbard Islands in Norway. Similarly the Channel Islands are mentioned, as is Liechtenstein. The paper also makes a version of the argument ‘well everything is already going to change because of Brexit so…’
The core of the proposal (para 117) is membership of the European Single Market, and collaboration with EU partners on key aspects of policy and participation in EU programmes just as Horizon 2020, energy and justice. Para 126 is explicit in suggesting that the proposal will give a comparative advantage to Scottish companies. Para 130 appears to suggest that as a price of single market membership, the ‘four freedoms’ would have to be upheld, implying that EU rules would be paramount in Scotland compared to UK rules (if they weren’t, the four freedoms would be breached and misalignment with the single market rules created over time)
The paper notes the challenges that this option presents- the status of Scotland in international law,legislative and regulatory compliance, free movement of people within the UK and continued free trade within the UK (as part of the UK single market).
The paper notes that only states can become members of EFTA and so proposes that either Scotland becomes an ‘associate’ member or that the UK retains membership of EFTA but then applies a ‘territorial exemption’ to all of its territory except Scotland. The paper appears to suggest this is possible because the Svalbard Islands have some elements of EFTA rules disapplied.
The paper notes that to be a member of EFTA, Scotland would need to attend international fora to ensure compliance and also submit to the jurisdiction of the EFTA Court, and to both ensure UK regulation and policy on competition, procurement and state aid rules complied with EFTA (and therefore single market rules) in Scotland, or that new powers are granted to Scotland (see below).
On free movement of goods and services, the paper appears to suggest that two legal and trade regimes will be operating without undue problems. Firstly, Scottish goods exported to the single market will comply with single market rules, but secondly Scottish goods exported to the rest of the UK will comply with UK rules. Apparently, any changes in trade relations with England will be frictionless.
On free movement, the key problem of course is that much of the Brexit debate was about reducing free movement of people, but the paper appears to suggest that again, two systems can be operated. Scotland will have an open relationship with 500 million people in the single market and accept free movement of people. However at the same time, no hard border for people will exist with England. The explanation for this relies on the precedent set by the Common Travel area I mentioned above, where Irish citizens can travel freely across the UK.
Finally, in order to make all this happen, the paper suggests a long-list of new powers are required for the Scottish Government and Scottish Parliament. Actually new powers are of 3 types:-
– matters which are no longer subject to EU law and that currently are devolved to Scotland (e.g. fishing, agriculture, marine environment, civil law, justice)
– other areas of EU competence that need to be devolved to Scotland to protect over-arching key rights such as health and safety or employment law and workers rights, equalities law, consumer protection
– new powers needed to make the differentiated arrangement work
This latter list is surprisingly long and includes import and export control; immigration; competition policy,product standards and intellectual property; company law and insolvency; social security; professional regulation; energy regulation; financial services; telecommunications; postal services and the full devolution of transport. In addition, Scotland needs the power to take part in trade negotiations, international fora including EFTA mechanisms, and cooperation.
Is All This Remotely Credible or Feasible?
What are we to make of all this?
Firstly, I think we can safely say that the politics look challenging. The idea that a UK government will proceed to complex negotiations with 27 member states on the terms of Brexit, plus a range of negotiations with countries around the world, whilst also granting one part of its territory an set of exemptions, looks implausible. Not to mention that immigration and control of free movement was a key aspect of the Brexit discussion, but the Scottish Government suggests that will remain for Scotland. Add in the explicit suggestion that differentiation gives a competitive advantage to Scots companies, plus the suggestion that under the deal Scotland takex ovrr its ‘share’ of the previous EU funding contribution and it starts to look almost impossible.
Beyond the politics though, I think there are more serious flaws. All of the territorial exemptions mentioned above are very small- Svalbard, Liechtenstein, Faeroe Islands- and are very small in trade terms whereas Scotland is a top 50 world economy on its own. Secondly, I find the idea of a territorial exemption applied to 90+% of the UK population- remember the idea is that UK stays but exempts itself from EFTA except Scotland- to be implausible in the extreme. Thirdly, the idea of an ‘association’ from a non-state member seems a non-starter, as Iceland said recently.
So on political and legal grounds, things look shaky.
But let’s keep going. The paper appears to suggest that in order to stay in the single market, UK rules would have to defer to single market rules and that great swathes of what it is to be a UK unified state would not apply. Remember this affects things as diverse as competition law, energy, production standards and a host more. I find that this strains credibility. I also find that the idea that a single unified state can apply two sets of trade rules across its geography, but also maintain an internal free open border for people, goods and services, to be implausible . The paper says that if the UK succeeds in its Brexit goals, then there should be minimal differentiation between the existing regimes, and the new UK relationships. But of course if that was true, then that removes much of the argument for the differentiated solution. So either, things will be the same (in which case why bother with the complex Scottish solution) or things will be very different indeed, in which case operating two very different systems seems a non-starter.
One point that does appear to have force is the argument that if the UK can agree a special deal with Ireland (a foreign state) on the free movement of people across the UK, then ‘there can be no reason whatsoever that it could not continue to operate between Scotland and the rest of the UK, even if Scotland is in the single market’. But I’m afraid this wording reminds me of the now-dead former currency union plan- the gentleman protests too much. In reality I think there are reasons to think that the Irish and Scottish situation would be different:
– firstly the Common Trade Agreement has been in place since the 1920s and has not caused the concern that EU immigration has (or at least not recently)
– second both the EU and UK recognise the pre-existing agreement and seek means to honour it- whilst neither has given any indication they wish to see more such arrangements. In general the direction of travel is to remove special cases not add to them
-thirdly, the risk of conflict in Ireland is fresh in everyone’s minds, so the animus to get an agreement is much stronger
– fourthly, Ireland is a island separated physically, so the ongoing suggestion is too find a free movement solution that involves more checks at airports and ports, rather than the physical contiguous border- and that doesn’t apply to the English-Scottish border
-finally – we don’t actually know if the Brexit negotiations will succeed in generating a solution that avoids a hard border.
Let’s keep going. At first sight, it appears perfectly reasonable to suggest that any powers ‘coming back’ from the EU to the UK that covered devolved matters, should go straight to Scotland. But not to fast- the issue is that these powers are tied up with complex discussions that need to take place on trade and tariffs and market access- not just the policies themselves. So, as Nick Clegg points out, food and farming policy will need to be thought through not just in terms of CAP-replacement, but also on complicated trade and import issues. So, even the initial list of new powers suggested by the Scottish Government needs pause for thought- its not a land-grab for the UK government to want to think it through, it merely reflects the need to for example, retain bargaining power in trade discussions, and ensure maintenance of the UK single market.
But as we move onto the wish list of new powers in the Scottish Government’s paper, things in my view start to become beyond the point that serious proposals are being made. Recall that even before we get to this point, special legal status for Scotland is needed, UK rules and policies will need to be subverted to single market rules for Scotland, free movement of people with no hard border will need to be agreed, and two complex and different bodies of trade rules will need to be accepted. But that’s not all!
Now we find that the UK will have a sub-section part of it that controls not only trade, but also immigration, consumer law, employment law, imports and export rules, intellectual property, social security, professional regulation, energy, telecommunications policy, financial services and a host more.
I won’t go through why that is beyond implausible. At that level of devolution it should be clear that there are three consequences:
– the UK single market and associated rule book will barely apply in Scotland
– distortions between England and Scotland will appear all over the place with massive potential for conflict and political disagreement
-a state with that level of devolution can barely be called a state, and is one step away from breaking up
So I found it hard to take seriously such a wish list, which I felt could only really be put forward in the expectation of being rejected.
Time To Summarise
If you made it this far, ‘well done’. The sheer length of this and the range of issues to be considered does I think show how complex Brexit is going to be. I think we can draw a few conclusions:
– Brexit is going to be an undertaking of unprecedented difficulty and complexity
– The consequences of Brexit for the UK and Scottish economies look severe and ongoing and the Scottish Government is surely right to point them out
– At the same time, the proposals for a differentiated solution for Scotland by remaining part of the single market don’t look politically feasible, but more importantly lack international precedent at the scale proposed
– the proposals surely fail the credibility test – operating differing trade, immigration, free movement of peoples and other regimes within a single state at the scope and scale proposed just doesn’t add up
– either the timing of new powers demanded is wrong (think agriculture or food), or the scope of powers demanded is just not credible within a unified state.
My conclusion is clear- the Scottish Government proposals do not represent a credible package that any government, not just a UK government, could agree. They lack serious international precedent, they destroy the basis of the unified UK state, and they appear to fall foul of international law.
My final comment is this- I do agree with independence supporters on one point at least. Scotland does face a choice, a choice brought on by Brexit. The choice is to stay with the UK and accept a new trading relationship with Europe and the rest of the world, or leave and forge a new state itself. Pretending you have have both is neither sensible not credible.