I was asked by a Scottish journalist yesterday whether or not Scotland could stay in the EU single market now that England has made clear that it intends to drag Scotland, Wales and Northern Ireland out with it.
I reflected on the issue and realised that the answer, like all things surrounding Brexit, is not clear. However at least in this case I have some precedent to work on. The precedent comes from the Channel Islands. As a note from their EU office says:
The formal relationship between the Channel Islands and the EU is enshrined in Protocol 3 of the UK's 1972 Accession Treaty, and confirmed in what is now Article 355 (5) (c) of the EU Treaties. Under Protocol 3, the Islands are part of the Customs Union and are essentially within the Single Market for the purposes of trade in goods, but are third countries (i.e. outside the EU) in all other respects. However the Channel Islands have a close relationship with the EU in many different fields, not simply those covered by the formal relationship under Protocol 3, as this note explains. Both Jersey and Guernsey voluntarily implement appropriate EU legislation or apply the international standards on which they are based.
Now let me be clear that I am not saying this statement is legal precedent. Of course it is not. Nor is Protocol 3 such precedent in itself, I think (I say I think because I am writing this in Copenhagen where I am up to my eyeballs in work and have not got time to read all that I would wish on this issue right now). But, and this is a mighty important but, what Protocol 3 seems to show is four things.
The first is that territories closely associated with the UK have been admitted to the Customs Union independent of the UK itself but as a result of their relationship with it.
Second, if the claim above is true they have been de facto admitted to the Single Market on the basis of voluntary compliance.
Third, these territories, which are self legislating but always subject to consent from the Justice Ministry in London, have been able to achieve this goal, by and large own and precisely because they can legislate for themselves largely independent of Westminster.
Fourth, the U.K. has over the time the Channel Islands have been linked to the EU given them greater foreign policy autonomy. This has been mainly to do with tax but I very strongly suspect that London will seek to preserve the relationships of Jersey and Guernsey with Brussels when England leaves the EU because to do otherwise would suggest that they really are part of the UK and subject to the whim of English voters.
So, the question is why isn't this a precedent for Scotland? Why can't it apply for its own Protocol 3 agreement with the EU now to survive England's planned withdrawal, which would allow it to retain a relationship that might otherwise be lost? And don't doubt that this must be plausible: I will be very surprised if the Crown Dependencies do not seek to do this, meaning that there will be a surfing part of the 1972 UK agreement to join the EU on which reliance could be placed by the UK nations other than England who could argue that they too should benefit in this way.
In that case an alliance of the governments of the Crown Dependencies, Scotland, Wales and Northern Ireland could seek to explore this as a way to retain firm links with the EU even if England does not want them. Legally the mere existence of Protocol 3 and its successor clause has to make that a possibility.
Does anyone know why that reasoning might be wrong?
Thanks for reading this post.
You can share this post on social media of your choice by clicking these icons:
You can subscribe to this blog's daily email here.
And if you would like to support this blog you can, here:
Maybe…they could form their own ‘United Kingdom’ without England?
A unified Ireland is closer as a result of Engexit….maybe England is legally the only part of the disunited kingdom that can leave the EU!
I suspect the problem is more political rather than legal
Guy Verhotstadt has just written an article saying the a la carte Europe is no more
https://www.theguardian.com/commentisfree/2017/jan/18/not-punish-britain-shed-illusions-eu-fair-deal
But they may want this
The EU cannot legally nor affordably be seen as complicit in the dismemberment of a member state. The UK will have to leave as a whole unless in advance of its doing so parts of it have seceded. The Channel Islands and their fellow travellers in the British Virgin and Cayman Islands etc have been having and eating cake, in a manner of speaking, and surely it is time to put an end to it.
I was amused to see the BVI wanting to have its say on Brexit. It has been a facilitator of the screwing over of the citizens of the UK by many landlords, employers and wealthy tax Dodgers and would make a thoroughly well deserved bit of collateral damage.
I am not sure I agree
We will see
Because you would have to have a customs barrier and tariffs between Scotland and England, which is unworkable.
We will have a customs barrier between NI and the Republic and that’s also unworkable
Let’s be real: this is all unworkable
I’m not sure if there are any constitutional/EU lawyers who read Richards blog, but would be great to hear some informed legal discussion.
It will be a lot easier to secure the Scottish English Border than the NI one with the Republic as it is very much shorter: less than 1/3 of the length (96 miles vs 310 miles and has much fewer crossings). Doing a bit of research looking at opinion polls regarding a United Ireland – I found an online one in the Belfast Telegraph (pro Unionist and supports the DUP). The results were surprising, but I had to cast an online vote myself (I’m an Irish citizen so can vote in the UK with the exception of NI) to see the result: 72% pro United Ireland and 28% to retain the status quo. Would take this with a grain of salt.
It has long been argued that Spain would veto any special arrangement for Scotland given separatists in the Basque Country and Catalonia but I’m not so sure now. In any event Spain will very likely veto any trade deal which does not solve the Gibraltar issue.
Living north of Hadrian’s wall (in Northumberland) I would welcome a greater Scotland. Many of my Scottish friends regard Newcastle upon Tyne as an honourary Scottish City and have more in common with the Northern English than the Southerners. I think a lot of people in the North voted Brexit not because of Little Englander sentiment but as a reaction to 35 years of decay ever since Thatcher. There are already be signs of disillusionment in the opinion polls.
But more ‘unworkable’ is more difficult to solve than less ‘unworkable’…
Sean is right, but there is more to it than just length of border. It was simply never designed to be a national boundary. There are houses built with a front bedroom in Eire and a bathroom in Northern Ireland, let alone roads like the A3/N54 west of Clones (four border crossings in five miles). Any sort of border control is going to be impossible.
England wants tariff free arrangements with everybody so difficult to exclude Scotland
Scotland in SM or EU does not make the Scottish England border unworkable. Difficulties would be down to the position of England and the arrangements it eventually reaches with the EU. Different national trade arrangements are down to different referendum results. The people of the nations of the UK have made different decisions. There is no longer unity within the UK
I believe Turkey is in a similar position (along with a few other places, such as Monaco and the Isle of Man)- outside the EU, but inside the Customs Union.
And then there are also a few places, like Gibraltar, that are within the EU but outside the Customs Union.
There are lots of bespoke arrangements, depending of course on there being sufficient political will on both sides to agree them. And then the time to negotiate them.
There aren’t any ‘regions’ of non-Member states in either the customs union or the single market, though?
Legally the Channel Islands have never been part of the UK, so I doubt that is a helpful precedent.
Nor is this outcome plausible without at least passive approval from UK Government, which Scotland is definitely not going to get.
Though I was at a seminar yesterday where the following quote from another seminar was repeated: “All of the options are impossible. Therefore something impossible is going to happen.”
Precisely: that is why I think it is possible
Doesn’t the Acts of Union, along with subsequent devolution arrangements, necessitate that authority on these matters as they relate to Scotland, which would come under foreign policy (for real, I think it does – May certainly said it did), lies with the British government? The Channel Islands are crown dependencies, as is the Isle of Man, while Scotland is a limited devolved power within a sovereign state.
The Crown Dependencies are dependencies
No one but the UK thinks they have any status apart from the UK at all
Scotland is not ‘within a sovereign state’ it IS a sovereign state! (And the people are sovereign – not parliament wether that be Holyrood or Westminster.)
My friend, Scotland is not a sovereign state. Scotland has devolved autonomy within the UK, which is a unitary sovereign state.
Jersey is also not a sovereign state
Next irrelevant objection?
That wasn’t an objection as such, Richard, but rather a direct reply to Willie’s statement that Scotland was sovereign. However, again, Jersey is a crown dependency, meaning it is an independently administered jurisdictions. Self-governing crown possessions, to use that awful old imperialist language (not that Jersey was ever oppressed by British imperialism). Scotland, on the other hand, has executive powers granted to it through legislation from the British parliament – its powers are, as everyone knows, limited through devolution. In other words, given the matter in question is not a devolved power, it would need Theresa May’s consent to remain in the customs union or the ESM.
My point is very simple – Scotland needs to be independent. It is in our very best interests, economically and, in terms of England’s rightwards drift, more generally. It probably won’t happen, but the fight has been picked by the British government and its Brexit Uber Alles approach.
Cayman’s constitution is a UK statutory instrument
Jersey self governs by consent alone
The difference is?
Jersey self governs by consent because its association with the Crown – which was voluntary, rather than by conquest – predates any English parliament, predates even Magna Carta.
Just remember who conquered who in 1066! 🙂
Everything is workable, but the British won’t let Scotland have a separate arrangement for purely political reasons. To do so would admit that the UK is over. The British aren’t bothered about NI – the prestige in having colonies is important, but it doesn’t really count. Scotland and Wales are different – I doubt if the British/English could bear different arrangements on the big island, especially if Scotland and/or Wales prospered.
But the others can ask……
And I think they should
I’ve always thought that Scotland being enabled to remain within the EU when England left had considerable benefit for everyone, including Remainers and businesses in England that are dismayed by the economic impact leaving would have on them, and I have been dismayed at the negativity expressed towards this idea in England, which I think stems from the most negative of knee-jerk reactions – spite, and prejudice against Scotland.
It’s often hard to remember that not all Englishmen hate Scotland and most probably wish us well, as we do you.
But you would never form that impression reading the papers.
So I am grateful to you for this contribution.
My judgement may be tinged by having an Irish passport
It makes you more open minded
Another EU article which doesn’t mention the prime financial activity of the EU, an activity from which the rich in Scotland, because of the greater land area to population ratio, are the prime beneficiaries within the Union.
Has anyone looked into why Denmark is a member state of the European Union, yet the Faroe Islands are not? Couldn’t this be replicated, except that the larger state is outwith the European Union yet the smaller states (Scotland and Northern Ireland) remain?
As a side note, Wales voted for Brexit, so not too sure they are being “dragged out”.
Another useful precedent
Greenland, too
Protocol 3 falls on Brexit.
As far as I know we (both Bailiwicks) intend to use Protocol 3 as a precedent for a negotiated settlement with the EU if Brexit does indeed happen.
I have always argued that we should have sought an agreement long ago along the lines of the many other mini-states in Europe. That implies breaking our ties with the English Crown but the indications are that the UK government would not stand in our way.
So Scotland can seek to do the SME
Interesting that you are subject to the power if the UK electorate…..
To me, it seems pretty certain that there is a legal route to this idea, or Nicola wouldn’t be pushing for it after taking legal advice.
Personally, I would prefer to go independent (I live in Scotland).