The First Minister has rejected both recent referenda results on the grounds of political inconvenience. I think we should let Nicola Sturgeon run with this recent escapade for longer, as it is humiliating her more and more by the day.
Don't oppose her five tests, let's hold her to them.
A bare bones freedom of movement on goods and leaving everything else to open markets should be our goal and is perfectly workable. It’s the Isle of Man model, which I think works best. It would mean the EU, European Free Trade Agreement (EFTA), and the UK agreeing on goods regulations. That’s very similar to how the EEA works now for services, capital and people. Let’s look at her five tests in detail:
"Our democratic interests - the need to make sure Scotland’s voice is heard and our wishes respected."
Can the First Minister reveal how this can be independently verified? Two recent referenda results have been rejected by the Scottish Government. Who will be ombudsman to determine that Scottish voters are being represented within the Union? Should Westminster have an ombudsman to liaise with devolved assemblies and parliaments to ensure democratic wishes are upheld within the constitutional framework?
"Our economic interests - safeguarding free movement of labour, access to a single market of 500 million people and the funding that our farmers and universities depend on.
The funding of agriculture and universities is not within the scope of the single market.
Agricultural subsidy is an EU competency and will remain so until the UK leaves. At that point it is presumed farming and fisheries will be devolved to Holyrood under the terms of the Scotland Act 1998. This needs clarification by Westminster. The First Minister should call for it.
University funding is by numerous routes including UK, Scottish and EU funding. Some EU-wide funding goes through programmes such as Horizon 2020 that involves non-EU countries such as Taiwan. The First Minister is right to enquire what transnational arrangements for funding will be in place post Brexit and engage in shaping these discussions. This will require Scottish government commitment to Brexit for the UK as a whole. It cannot oppose Brexit and still involve itself in Brexit negotiations that involve UK-funded international schemes that Scotland benefits from.
The Scottish Government should clarify its fee policy to new EU students in light of Brexit. It may continue to fund EU students under current arrangements but this will remove funding from other areas including research grant making.
"Our interests in social protection - ensuring the continued protection of workers’ and wider human rights."
The UK is committed to the European Convention of Human Rights (ECHR). It is written into the Scotland Act and would need the Scotland Act repealed to remove Scotland from the ECHR. The court may in future have a formative opinion on matters relating to national security. This would mean for matters of public safety the High Court and Court of Session would regain primacy in Scotland. Scotland could continue to be fully bound by the court if it wished to be. Employment law is reserved to the UK. Employment law must be applied equally within a single labour market for obvious reasons; it prevents discrimination. Outside the EU the Scottish government would not be bound by EU regulations of public procurement if this were amended at UK level.
Therefore, the Scottish government would, if future UK law reduced workers' rights, be able to apply EU law in full to any public sector contract or indeed any contract offered to an employee whose work is procured publically. There is nothing in law allowing terms and conditions more favourable than those required by statute. The Scottish government can protect those rights to its own employees. Repealing aspects of EU procurement law would allow these be granted to other employees too.
Crucially, the Scottish government could grant any EU citizen benefits devolved to Holyrood even if the UK did not. If Holyrood wanted to give equal priority to EU nationals for council housing, childcare, education and free prescriptions no one is stopping it.
"Our interest in solidarity - the ability of independent nations to come together for the common good of all our citizens, to tackle crime and terrorism and deal with global challenges like climate change.”
The first line is a statement of intent that relies on other countries to reciprocate. Currently the UK works with other European countries through Interpol and Europol to tackle cross border crime. Europol has numerous non-EU partners with whom it cooperates now. Climate change, air quality and water quality are matters of regional and global significance that are dealt with through the World Health Organisation (WHO) and United Nations Economic Commission for Europe (UNECE) making recommendations that are actioned by member states. The EU frames these through EU-wide directives, though many European countries tackle these issues without them.
"And our interest in having influence - making sure that we don't just have to abide by the rules of the single market but also have a say in shaping them."
UK access to the single market is not the issue. Being in the single market is. A common framework is important for UK exporters, not importers. We can only export to countries if we obey their rules and if we leave the single market that will mean customs come back. If we choose to accept single market rules as acceptable, the EU will still export to us using those rules.
Shaping these rules is important in areas that are of EU-wide significance but less so in areas that are overweight in some member states. Financial services and fisheries are two vital services for Scotland and the UK that have been threatened by single market rules. The single market has no veto over these rules. While we can have influence within the single market we cannot ensure EU-wide directives will not harm Scotland either in or outside the EU. Many rules for goods come from regional and international bodies such as UNECE and Codex Alimentarius, the International Labour Organization (ILO) and MARPOL marine pollution. Service based regulations are increasingly EU and Eurozone based and of a political nature. This point cannot be ignored. Services are not physical and require no physical detention of wares for inspection.
There are many international bodies the UK and Scotland can influence by consensus that influence the EU.
Seeking passporting of financial services at international level so that this is fed down to the EU is the best way of ensuring EU directives do not become predatory. Likewise shaping the WTO to develop a global single market in services by eliminating non-tariff barriers and regulatory pressure will bring the single market to the world and has a far better chance of protecting Scotland than EU negotiations that can be actioned through qualified majority voting where the interdependent Eurozone can achieve a majority without non-Eurozone votes.
With 1 per cent of the EU population, Scotland will be bound by EU-wide regulations on service that has can be passed by a Eurozone majority. Some will say that is no worse than the current England dominated Westminster. Maybe so, but to leave the UK and rejoin the EU it needs to be much better to convince Scots to take that risk.
To conclude, it may be wiser to ditch any attempt at free movement of services with the EU and work internationally to reduce non-tariff barriers. Freedom of movement of goods alone DOES mean we follow mutually agreed EU rules but given their origin, we'd be following most of them anyway but at a global level we'd be shaping them there.
Dr. Jon Stanley is a Junior Doctor, a Fellow of the Royal College of Surgeons and Health Contributor for the Bow Group