‘But They’ll Never Take Our Oil!’: Brexit, An Independent Scotland and the EU

Most people remember Scotland’s bid for independence two years ago; if they weren’t paying attention to the subtleties of European Union politics at the time, they may at least have watched John Oliver’s popular segment on Last Week Tonight, an irreverent fifteen-minute introduction to the September 18, 2014 referendum on Scotland’s political status that involved unicorn costumes, Mel Gibson, and a haggis. For a few weeks in late August, it seemed as if Scotland really might leave the United Kingdom and begin the arduous process of acceding to the EU. In the end, however, the Scots voted “No” to independence at a rate of 55 percent, opting to remain bound to England, Northern Ireland, and Wales.

At that point, most Americans stopped paying attention. The Scottish National Party (SNP), however, never forgot, and neither did those Scots determined to separate. Type “Scottish Independence Referendum” into Google, and one of the first suggestions will complete that phrase with “rigged.” There’s quite a bit of pent-up resentment that didn’t go away two Septembers ago, and many still hold the conviction that Scotland should be free. Now, with less than a month left for the referendum on whether or not the UK as a whole will leave the European Union (a phenomenon dubbed the “Brexit”), a second Scottish referendum has suddenly become a possibility. Given the chance, the SNP won’t let this opportunity slip through its fingers. With plenty of economic and political motives behind its campaign to abandon ship, the SNP is poised to use Brexit as a source of fresh momentum toward its goal of Scottish independence.

The support of the Scottish people, however, hinges partially on the ease of accession to the EU, and the SNP has many reasons to make them believe that the process could be completed with relatively few snags. But the process isn’t as smooth as the SNP would like its constituency to believe, and should a second referendum pass, the red tape involved is daunting. Many questions remain, especially why Scotland would choose to exit the UK in the first place, why EU membership would be so important for an independent Scotland, and through what channels the Scots might achieve it.

History of the Scottish Independence Movement

The history of the Scottish independence movement is intertwined with the rise of the Scottish National Party. The party first made an impact on the politics of the region by winning a seat in the UK Parliament in 1967, a moment that coincided with the discovery of oil in the North Sea off Scotland’s eastern coast. This discovery contributed to the rise in Scottish nationalism in the 1960s and 1970s, as the SNP increased their popularity through their “It’s Scotland’s Oil” campaign. In the decades since, levels of nationalism in the region have fluctuated with its economic situation.

More recently, the SNP, under the leadership of Alex Salmond, gained traction in their bid for an independent Scotland by including a pledge to have a referendum for independence in their 2007 Scottish election manifesto. The SNP ended up winning a majority in the Scottish Parliament in the 2007 election and then again in a landslide in the 2011 election, reflecting widespread pro-independence sentiment among the Scottish electorate.

However, the most important event in the SNP’s effort to gain Scottish independence was the signing of the Edinburgh Agreement by Salmond and UK Prime Minister David Cameron in 2012. As reported by The Guardian in October of that year, “the Scottish first minister and the UK prime minister signed a detailed thirty-clause agreement in Edinburgh to stage a referendum before the end of 2014 asking a simple yes or no question on whether Scotland should become independent.”

The Edinburgh Agreement set the stage for the people of Scotland to officially decide whether they wanted Scotland to remain in the UK or not, which, in September 2014, they did. Alex Salmond and his party did not get the result they had been hoping for. Approximately 55 percent  of voters answered “No” to the referendum question, “Should Scotland be an Independent Country?” while only 45 percent voted “Yes.” Salmond stepped down from his role as the SNP leader following the vote and was succeeded by Nicola Sturgeon.

Under Sturgeon’s leadership, the SNP has continued to gain some popularity. It gained over fifty seats in the 2015 UK general election, although the party did lose six seats in the Scottish Parliament election the following year.

An Independent Scotland: The EU Factor

At this point, it is difficult to say whether nationalist feeling in Scotland is similar to what it was at the time of the 2014 referendum. However, one event that may influence the likelihood of another independence referendum in Scotland is the UK seceding from the European Union. The British referendum on withdrawal from the EU takes place on June 23, 2016.

Were the UK to leave the EU, it—and, by extension, Scotland—would be leaving the world’s largest single market, whose over five hundred million consumers benefit from the free movement of goods, services, capital, and people between its twenty-eight member states. In addition to free trade within EU boundaries, a number of bilateral trade agreements with non-member states are in place, assuring member states preferential or even free access to numerous non-EU markets.

An important aspect of membership for Scotland, the UK, and the EU as a whole is Scotland’s economy. Scotland controls energy sources that are vital to Europe as a whole, and without the protection of the EU’s trade agreements, its economy could be in danger. The SNP has therefore argued that keeping Scotland in the EU is not only in Scotland’s interest, but in the EU’s interest as well.

In addition to facilitating trade, the EU has distinct social and political components. Structures like its Justice and Home Affairs Council (JHA) have enacted legislation on issues such as organized crime, terrorism, defense, and civil law, which all EU member states agree to accept as binding. Thus, full membership for any country does not just mean access to the single market and other special trade agreements, but also acquiescence to a number of binding social, political, and humanitarian laws.

These extra laws often create the most disagreement over whether or not Scotland should try to retain full EU membership. Critics argue that the loss of national control over certain domestic issues is simply not worth membership benefits—especially considering the “red tape” that faces companies dealing with the EU.

Scotland Outside the EU: Alternative Agreements

Scots who criticize EU membership have proposed a couple of alternatives to full accession in Brussels. Instead of full EU participation, these critics advocate either European Economic Area (EEA) or European Free Trade Association (EFTA) membership.

EEA membership—currently held by Norway, Liechtenstein, and Iceland—would give Scotland access to the single market while allowing it to retain independent control over external trade and non-trade policies. However, it would eliminate Scotland from all EU negotiations while still requiring it to make annual contributions to the EU budget. EEA countries are also subject to Rules of Origin requirements, which impose significant monetary and practical costs on goods with any kind of extensive international supply chain. Like EEA membership, EFTA membership also brings Rules of Origin requirements and exclusion from all negotiations. In addition to these drawbacks, any new EFTA agreement between Scotland and the EU would require starting negotiations from scratch.

In a 2013 report, the Scottish government weighed the EEA and EFTA options and unequivocally rejected them in favor of full membership, deeming negotiating power and full access to bilateral trade agreements simply too important to sacrifice. The argument that EEA membership would only mean reduced red tape, the report argued, is simply wrong: EEA-only membership would indeed mean the same amount of EU regulations, just without any power to negotiate reforms. More importantly, a loss of negotiating power would make Scotland a much less appealing candidate for foreign direct investment, which is currently essential to Scotland’s job creation and economic growth.

Time constraints also play a significant role in the government’s pro-EU stance. If Scotland were to achieve independence, it would lose the benefits of EU membership that it has as a part of the UK. In 2011, 46 percent of Scotland’s international exports went to the EU (not including exports going to countries benefiting from EU bilateral trade agreements). An independent Scotland simply could not afford the long time in limbo that a complicated EEA or EFTA membership negotiation would entail.

Scotland’s Vision for EU Accession

Since its inception in 1951 as the six-nation European Coal and Steel Community, the European Union has grown massively and now contains twenty-eight member states. A recent increase in membership applications from European nations has caused the EU to rethink its membership and acceptance policies. According to EU Commission President Jean-Claude Juncker and other politicians, new states will not be able to accede to the EU until 2020 due to the rapid enlargement of the EU in recent years. This policy will certainly prohibit already-existing states like Turkey from acceding into the EU before that time, but the policy could also set back an independent Scotland’s bid for accession as well.

This potential problem for Scotland has raised the possibility of internal enlargement within the EU—that is, if a member state splits in two, both nations would be allowed membership in the EU as independent states. Scotland, if it secedes from the UK and gains membership to the EU, would count as contributing to internal enlargement.

However, European Union officials, including European Council President Herman Van Rompuy, believe that allowing new states to transition directly into EU membership would be impossible under international law. As members of the EU, nations agree to and follow a strict set of rules and treaties. Independence of one nation from another creates a new nation that is no longer a party to these treaties. The EU argues that as the new nation is no longer part of the nation that follows the treaties, the new nation is no longer under any obligation to follow these treaties. It is no longer obliged or governed by the rules of the EU, and therefore cannot be a member. In leaving the UK, Scotland would also be leaving behind its agreement to the EU treaties, becoming independent of both the UK and the EU. Scotland would be unable to enter the EU ‘internally’ and would instead have to reapply for membership. As the EU is not currently accepting applications for membership, Scotland might have to wait several years to be considered.

Unlike Van Rompuy, the Scottish National Party believes that there is a way for Scotland to secede from the UK while maintaining the UK’s existing EU treaties in an independent Scotland. Typically, states gain membership to the EU through Article 49 of the Treaty on the European Union (TEU 49). This article is designed for accession by states that are not currently a part of the EU. However, Scotland has been a member of the EU within the UK, since the UK joined the EU in 1973. Therefore, Article 49 would not apply to Scotland. Instead, the SNP argues that after a vote to secede from the UK, it can accede into the EU as its own state upon independence, using Article 48 of the same treaty (TEU 48). Article 48 allows for amendments to be made to EU treaties. If the Scottish government can have the EU amend the treaties so as to make them apply to an independent Scotland, Scotland would continue to be a part of the EU, but as a new state. This would require unanimous approval from all twenty-eight EU members, including the UK. According to the Scottish government, all EU member states will be inclined to assist Scotland in this transition due to Scotland’s abundant oil and their own energy needs.

The Scottish government wants to use Article 48 because it would allow it to receive membership before 2020. Not only would Article 48 allow for a more rapid transition, but it would allow Scotland to avoid temporarily exiting the EU. The SNP aims to negotiate continued Scottish membership in the EU during the interim period between the referendum vote and the potential date of formal independence. On that day, it promises, Scotland would simultaneously become a new state and a new member state of the EU.

In addition to facilitating a quick and immediate transition to Scottish independence and EU membership, Article 48 would allow for Scotland to remain in the Common Travel Area (CTA). The CTA allows people in the UK and Ireland to move freely in the UK and between UK and Ireland. This agreement serves an essential purpose for the UK, which is not a part of the Schengen Agreement that allows for free movement of people in most EU member states. According to the SNP, Scotland's relationship with the UK is so important that it is necessary for it to maintain the CTA. By applying the UK treaties to an independent Scotland, Scotland could opt out of all the conditions the UK has opted out of, and maintain all the benefits Scotland has as a member of the UK.

The Legal Obstacles to Scotland’s Vision

Many third-party observers, however, do not see Article 48 as a legal pathway for Scotland’s EU reentry. The Scottish government has argued that, under the provisions laid out by this statute, it may negotiate its reentry into the EU before leaving the UK. Yet only the governments of current EU member states can exploit the privileges laid out in Article 48. As Jo Murken points out, Scotland’s reentry negotiations would therefore be delegated to the UK government. This puts Scotland in a precarious position, to say the least.

As much as the SNP wants to avoid using Article 49, this statute is a more legally viable route towards independence. Nonetheless, it presents major diplomatic obstacles.

Using this procedure, Scotland would need to formally apply to join the EU. Commentators agree that this process would be time-consuming and clunky. Scotland’s EU accession would require the unanimous support of the other EU member states. While these bureaucratic gears churn along, a newly independent Scotland would be stranded without the aid of a large coalition. To avoid this issue, Scotland would need to finalize its accession to the EU simultaneously with its secession from the UK. Such precise timing is rarely seen in modern politics.

Brexit and the Likelihood of a Second Referendum

Criticism of the SNP’s seemingly accelerated timetable has come from all quarters, including within the UK. Although Westminster seems to enjoy warning Scotland about the problems associated with secession, the SNP has never really cared much about what England thinks. Last year at the general election, they sent fifty-six SNP MPs to Westminster, proving once and for all that the Scottish people see their interests as fundamentally different from those of the rest of the UK, which handed PM David Cameron’s Conservatives a second term and a full majority in Parliament (an increase from the last elections in 2010, when the Conservatives merely won a relative majority and were forced to form a coalition with the center-left Liberal Democrats).

The UK as a whole is disgruntled: the European Union is the source of a surging flow of immigrants, and many Britons expressed their discomfort with the situation during last year’s parliamentary elections by voting for the UK Independence Party, a far-right, anti-immigration, Eurosceptic party that came to prominence during EU elections in 2014. Many in the UK—but mostly England—see the European Union as sapping valuable resources from the country through welfare payments to migrants, unnecessary regulations on trade within the City of London, and other impositions that, they claim, infringe on Britain’s sovereignty as a whole.

Britain’s reasons for staying in the EU, however, are many: President Obama has already warned the UK that the “special relationship” between their country and the US would be degraded by a “Leave” vote, and that such a vote could hobble the UK’s economy for years to come. With the involvement of foreign heads of state and many prominent celebrities in the UK, and worries about economic stability, a “Stay” vote is still a strong possibility, but not a certainty.

Many in Scotland don’t feel the same way. Not only has the SNP mounted its own campaign to stay, motivated by disdain for David Cameron’s Conservatives, but Scotland as a whole isn’t very keen on leaving. The population difference between sparse Scotland and dense England might force them to leave against their will anyway. That might trigger a call for a second referendum on Scottish independence, and convince some of those who voted “No” in 2014 to change their vote by opening up a new demographic to a “Yes” vote: middle-class European Unionists who voted “No” or considered themselves undecided last time.

Still, the possibility of a referendum hinges completely on the poll numbers after a Brexit “Leave” vote, which are at this time impossible to predict. Attitudes will likely change as the concept of leaving goes from being an abstract idea to an imminent possibility. Many of the difficulties described above are useful in persuading those on the fence to oppose a referendum, but if a Brexit happens, more Scots may deem it worth the trouble to try again. If a second referendum comes to a vote in the Scottish Parliament and the polls suggest a favorable result, the SNP would likely vote as a bloc to trigger a second referendum. With the help of just two Green Scottish parliamentarians, who were their fellow backers on the “Yes” campaign two years ago, they would have the necessary majority.

There’s no definite conclusion on whether or not a Brexit “Leave” vote would trigger a second referendum, but many Scots already support it, and their conviction will likely increase if the rest of Britain decides to go forward with Brexit. Even the chatter about Scottish secession doesn’t exist in a vacuum, and is in fact shaping the conversation about Brexit. The mere threat of Scottish independence may be persuasive enough to keep the UK in the EU, making the actual question of a second referendum a moot point.

Brexit and a Second Referendum: The Legal Implications

Disregarding whether a Brexit yes-vote followed by a Scottish independence yes-vote is a likely scenario or not, legal scholars have jumped at the opportunity to discuss the potential repercussions that this outcome might have on the process of Scotland’s EU accession.

One problem that has been raised concerns the sequencing of the three requisite negotiations: between Scotland and the UK (as provided for in the Edinburgh Agreement), between the UK and the EU (as mandated by TEU Article 50, governing EU secession), and between the EU and Scotland (as required by TEU Article 49—or TEU 48, according to the SNP). A decision to conduct any one of these negotiations before the others poses a unique set of problems with serious practical consequences.

For example, if the UK were to insist on negotiating its Brexit arrangement before dealing with the Scots, Scottish independence could be delayed several years. In fact, according to a recent document published by the British government, “a vote to leave the EU would be the start, not the end, of a process . . . [that] could lead to up to a decade or more of uncertainty.” This lengthy negotiation process would also be between the EU and the UK as it currently exists (i.e. including Scotland), and may not be the best deal for a UK that could be about to lose Scotland.  In this scenario, both the Scottish and the British people lose out, making this a bad option for all parties.

Another problematic scenario is that in which the Scottish-EU accession process is completed and the UK has not yet finished, or perhaps even begun, its Brexit negotiations. Certainly, the British estimate of “a decade or more” exceeds the eighteen-month timetable set forth in the SNP’s 2014 manifesto. Under these circumstances, the Scottish government has either agreed to or opted out of all the EU requirements and is fully prepared to be an independent EU member, but the rest of the UK, still in Brexit negotiations, can actually veto Scottish accession, even while preparing for its own departure. While this outcome seems unlikely at best, there is a marked Scottish distrust of how cooperatively the UK would approach post-referendum negotiations. As explained by the Scottish Parliament’s European and External Relations Committee: “While the UK has benefited from the goodwill of other member states in the negotiations for EU reform, it was suggested to the Committee in strong terms that a decision to leave would fundamentally alter that relationship.”

In light of these problems of sequence, some scholars suggest that “the only solution would appear to be to hold three sets of talks in parallel—with links across the talks.” This would be extremely complex and demanding on the resources of all parties. There might even have to be a fourth player involved in the talks, Ireland, on account of its shared border with the UK and sustained EU membership. While it is nearly impossible to predict what points of contention would arise in talks that affect so many different people and concern so many different areas of policy, the SNP’s desire to maintain the UK’s current EU opt-outs, including from the European Monetary Union, the Schengen Agreement, and the budget rebate, could definitely prove problematic.

Legal scholars differ in the details of how they think this process might actually proceed. For example, it has been suggested that the UK, in leaving the EU via TEU Article 50, could within that procedure enable Scotland to continue as the same member state that joined in 1973. This procedure, and the others proposed, would all involve a lengthy, uncertain, and potentially volatile negotiation process.

Scotland, the UK, and the rest of Europe all face an uncertain future, with the rise of the extreme right and an economy that has continued to stagnate, despite the fact that the US has begun to recover from the Great Recession. The landscape of the EU will continue to change, and public opinion will do the same. For now, Scotland remains a stateless nation, marginalized in Westminster but nevertheless a strong voice in opposition to current British austerity measures. In scrabbling for independence, the SNP envisions a future in which Scotland is more self-determining and less dependent on the whims of David Cameron and his ilk. Whether the EU will be part of that future remains to be seen.

This article is the culminating project of an EUChicago research cohort studying Scotland and the European Union.  EUChicago is a soon-to-be RSO that aims to connect UChicago students EU policy, transatlantic political issues and the postnational idea of European integration.

Research Cohort Leader: Nicholas Romanoff

Research Cohort Members: Abi Hunter, Andrew Stone, Ariane de Selliers, Emelia Lehmann, Maria Kollaros, and Raghav Bikhchandani

The image featured in this article is licensed under Creative Commons. The original image can be found here.