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What Options are Available to Scotland to Remain within the EU Given the ‘Brexit’ Referendum Result?

Document Cited authorities 5 Cited in Related
Vincent
Author
DOI10.3366/elr.2017.0392
Pages98-103
Published date01 January 2017
Date01 January 2017

The European Union referendum result has the potential to impact hugely on Scotland's relationship with the EU and indeed with the rest of the United Kingdom. Within the framework of the current devolution settlement, the UK's withdrawal from the EU will mean that Scotland also leaves, despite 62% of the Scottish electorate voting to ‘remain’. In legal terms, the UK as a state recognised under international law is the signatory to the European Treaties. Withdrawal of that state includes its constituent parts. Given that, what options, if any, are there for Scotland to retain a relationship with the EU post-Brexit?

INDEPENDENCE

The referendum result has prompted calls from Scotland's First Minister to “take all possible steps and explore all options to give effect to how people in Scotland voted”.1 One of these options is a second independence referendum, which the First Minister described in the immediate aftermath of the 23 June vote as “highly likely”. Should Scotland democratically secede from the UK it would then be in a position to be a member of the EU in its own right. An independent Scotland would be the clearest legal route to membership of the EU should the UK leave, although by no means guaranteed, let alone quick and easy. As with the 2014 independence referendum, the question of the legality of a referendum would need to be resolved; there would need to be negotiations with the UK Government to agree the terms of separation; and negotiations would also be required with the EU in order to reorder Scotland's relationship with it. And the particular legal route (Article 48 or 49 of the Treaty on European Union) to EU membership for Scotland is contested. The traditional accession route for any non-EU State (Article 49 TEU) would place Scotland alongside a number of other States in that particular queue and down a route of full EU-acquis adoption, thus relinquishing the UK's current opt-outs, for instance from the euro and Schengen. Alternatively, Article 48 TEU provides for the Treaties to be amended by unanimous consent of the member states and is sometimes referred to as a basis for allowing “internal enlargement”. Assuming there is the political will to use Article 48 TEU and assuming matters of timing permit, there could be a seamless transition from Scotland's membership of the EU as part of the UK and its membership of the EU as an independent state on Brexit day.2

EU MEMBERSHIP WITHOUT INDEPENDENCE?

In exploring “all options” to give effect to the referendum result in Scotland, consideration has also been given to whether Scotland could remain in the EU without seeking independence. Could Scotland (and Northern Ireland) somehow retain the UK's membership of the EU, while England and Wales effectively withdraw? Certainly, this would require a high level of political will and...

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