Overshadowed by horror in France, insurrection in Turkey and wholesale change in the British Government, the ramifications of Brexit continue to quietly unfold. It’s increasingly apparent that Scots face a choice between two families of nations and must soon take a long-term decision about which one feels like home.
Family one – the Europeans – are admittedly a carnaptious bunch. Veteran EU members share the same social democratic tilt as the Scots but those with independence movements did everything possible to obstruct iScotland’s case for automatic membership in 2014. How times have changed. A report by the European Policy Centre suggests Scotland has a “good” chance of being allowed to remain in the EU because it has “won sympathy by its vote to remain” in last month’s referendum. Report author Graham Avery – an Oxford academic and chief adviser to the European Commission – says: “It is in the material interest of the EU, including Spain, to keep Scotland inside.”
Family two – the British – are also a carnaptious bunch. Former Attorney General Dominic Grieve has predicted that the UK Government may hold a second referendum if Brexit terms don’t match what Leave campaigners promised. Yet the British Government maintains Scots can’t have a second indyref even though the Union deal doesn’t match what No campaigners promised – on a whole host of fronts besides Brexit. Tomorrow’s Trident vote means Scots must host and part-fund a nuclear weapons system opposed by a consistent 70 per cent of the population. The promised crackdown on immigration may push Scotland below population reproduction rates and the abolition of DECC – the Department for Energy and Climate Change – suggests Scotland’s vital renewables industry isn’t a UK priority. Surely “the most powerfully devolved government in the world” could avoid immigration, energy, trade and defence policies its parliament has expressly rejected. Britain clearly can’t envisage such truly beefy devolution – but past opt outs show the European Union and many member states can.
In 1982, Greenlanders (part of Denmark) voted against EEC membership and three years of negotiations later, the Greenland Treaty made it an associated territory. None the less, Greenlanders are still citizens of the EU. The main objection to achieving a “reverse Greenland” for Scotland is that unlike Greenland and Denmark, Scotland and rUK share a territorial border which would require some kind of internal border. And that’s where the example of Cyprus comes in.
Nikos Skoutaris, a lecturer in EU law at the University of East Anglia has examined how ‘divided islands’ are accommodated within the EU for the Academy of European Law. He points out that in Cyprus, the accumulated legislation, legal acts, and court decisions which constitute the body of European Union law (acquis) does not apply to a significant part of its territory. “Cyprus might provide some inspiration for the legal arrangements that have to be found if England and Wales leave the EU while Scotland and Northern Ireland remain in the EU without seceding from the UK. It can also serve as a reminder of how difficult (but not unmanageable) such a task may prove to be.”
The Republic of Cyprus (RoC) became an EU member state on 1 May 2004 even though Turkey exercises effective control over the northern half of the island. According to Skoutaris, “the unprecedented situation of [an EU member state] not controlling part of its territory is acknowledged in Protocol No 10 [of the Cypriot Treaty of Accession] which provides for the suspension of the application of the acquis in northern Cyprus.”
In effect that lets the EU recognise the ‘Green Line’ or de facto ‘territorial border’ within Cyprus and Article 5 of the “Green Line Regulation” allows goods which cross to be exempt from EU export formalities. Skoutaris observes; “A similar arrangement could easily be applied to ‘exports’ of goods originating in Scotland and Northern Ireland to England and Wales.”
Representation in the European Council would also be reasonably straightforward, even if “Mother Ship” Britain is no longer a member. The Treaty on the Functioning of the European Union (TFEU) requires “a representative of each member state at ministerial level” but doesn’t prescribe which internal level of government that person should represent. Both the Scotland Act 1998 and the Northern Ireland Act 1998 already ensure that Acts created by devolved legislatures are not incompatible with EU law.
But there is one big snag.
If a similar measure to Cyprus were to be applied to Scotland, the Scottish authorities would have to police the new ‘EU border’ with England. Of course, the problem wouldn’t arise if free movement of people continued to apply to the whole UK as well. But that looks unlikely.
This is why Nicola Sturgeon didn’t want Scotland to become independent in a row over EU membership. But it looks like hard borders are going to happen anyway. If Scotland simply acquiesces to UK Brexit, customs points must be set up right round the Scottish and UK coast and at airports. If Scotland wins a Cyprus style deal within the EU but rUK still leaves the EU (with or without Northern Ireland), a hard border may also happen. In short, the next months of negotiation may show that Scotland will be stuck policing new borders whatever happens – once the UK triggers Article 50.
But there’s a bigger snag.
“Doing a Cyprus” depends on the UK not formally withdrawing from the EU and that seems fairly unlikely. There would also have to be constitutional amendments of the relevant Devolution Acts, so devolved governments had the competence to take decisions at EU level – on “reserved” subjects like foreign affairs and defence – and sign international agreements, such as multilateral conventions. If that happened, Scotland and Northern Ireland would achieve such legislative autonomy that it would be hard to distinguish between their new status and full independence.
The Cyprus option could still be used transitionally until the positions of Scotland and Northern Ireland are renegotiated domestically. But does London care enough to even contemplate that?
If opt-out options unravel over the summer months, it’s likely that the prospects for indyref2 won’t suffer at all.