Scotland can stay in the Single Market without a referendum

Home Affairs
Tuesday, November 29, 2016
Dr. Jon Stanley


Here we are again at the start of week with the SNP pushing against a wall to stop themselves from falling over. The EEA is now the SNP's favourite plaything because I suspect they don't know what it means.

They need it because I've found a way they can join it. I just don't know why they would. I mean, it just doesn't seem that good really, but given the Nats obsess about the greener grass of the other side and that we yoons are holding them back, well here we go. 

What follows is a critical, slightly cynical but completely honest assessment of how this could be done with the conclusion that when these jokers in Holyrood are faced with the detail of it, they will do what they did with devolved welfare powers and just shelve it and carry on blaming Westminster because it's easy and when it comes to a national vision, Nats really are quite lazy.

"Scotland could join EFTA, the EEA and stay in the single market if it really wanted to."

There, I've said it. The EEA is the rule making body of the Single Market, to which members are bound. A freedom of movement of goods, services, capital and people which requires every business and employer to follow those rules. Whether they export or not is the point of it being a Single Market.

We have been told by Norway that Scotland cannot join EFTA as it is not independent and EEA membership, we are told, requires EU or EFTA membership. In light of an upcoming court case, bizarrely held in the UK, it seems the EEA may be a legal body in its own right and not require prior membership. 

Sounds great but I'm sceptical, then again I'm Eurosceptic so that's always going to be my default position.

Richard North and otherwise (not elected) scholars have looked at variants of the EEA that exclude the UK from migration policy such as (the Liechtenstein option) and even having the UK as a standalone EEA member (presumably also with migration control adjusting for the fact we speak English here and not some Viking dialect unknown beyond the glaciers). These are not impossible legally, politically it's a different matter.

We have had our very own Lesley Riddoch talking about Arctic Diversity and a lot of nonsense about a "reverse Greenland" option which sounds about as bizarre and palatable as chunks of putrid shark on wee cocktail sticks. Finally, our own Little Nicky keeps telling us all how the English have taken us out of Europe against our will. 

So far, so very Nat.

I have however, I'm afraid to say, been digging. I have across some old Norse scroll known as the Hoyvik Agreement between Iceland and the Faroe Islands signed back in 2005 when Iceland was a banking powerhouse...oh how little did we know...and Salmond was waxing lyrical about an Arc of Prosperity. 

It is an agreement between an EEA member and PART of another country, Denmark, albeit with that country's consent. Furthermore, it is an agreement separate from the Faroes' trade deal with the EU, of which Denmark is also a member.

Why is this confection so interesting? Because there is prior art of part of a country doing deals with the EU and with countries outside the EU. This is something constitutional monarchies can play with that modern metropolitan republics cannot without great difficulty. 

The Channel Islands and Isle of Man currently have an agreement through the UK with the EEA and EU based on the UK's EU membership through something called Protocol 3 of the Act of Accession that excludes them from many aspects of the EU. This agreement will unquestionably be affected by Brexit.

So the UK should think seriously about agreeing that Scotland, Northern Ireland and the Channel Islands may apply to join EFTA and maybe also take up the EEA acquis and so remain in the Single Market. The Protocol 3 islands would have a strong defence of maintaining the status quo on their setups and limit cooperation with EEA to current areas of competence. That is of course for them to decide. Lots of fancy words of course, but they really matter. 

Ah, but surely there'd be a hard border with Scotland, old chaps?

Yes, in a way, except that there wouldn't be. The UK government would control entry of people onto the islands. After that Scotland, Northern Ireland and the islands could apply their own benefit, regional visa and work permit the Protocol 3 islands do now.

So what is this then? 

Could the UK maintain control of immigration for settlement, suffrage and security but Remain voting regions stay in the Single Market because legal systems in Scotland and Northern Ireland could competently police EEA rules just like the EFTA court does now? 

Could The Common Travel Area be preserved, border customs checks at the same intensity as between France and Switzerland be established that allowed private cars and people to travel as easily say French and Swiss people do now within Schengen?

Could lorries be sealed under cover of Transports Internationaux Routiers (TIR) carnets transit England through specific crossings without ever stopping and end up in France within the same Single Market? 

Yes, assuming EFTA allowed it! 

The TIR convention is almost global now, having been signed in Geneva in 1975 and covers the whole of the continent, so a lorry driver in Aberdeen could with several breaks drive a container all the way to Russia if required.

There would be many reasons not to have this. Regulations impact on small businesses hugely. Tariffs impact on consumers but in this setup tariffs would be set by EFTA, not the EU. Scotland and Northern Ireland would have to contribute something to running the EEA and the English and Welsh would rightly not expect to fund these payments. 

Migration would likely soar as those EU migrants already in England now looked north for something more secure regarding their future. Devolved nations' benefits systems would have to deal with EEA migrants pension liabilities if not covered by the UK already and the workforce would be covered by ever more directives from from Europe now and not to be passaged through wicked Westminster as before. 

Further corporatism of public services through compulsory tender would ignite many left wing nationalists who opposed the Transatlantic Trade and Investment Partnership with America and the Comprehensive Economic Trade Agreement with Canada in a way they never opposed the EU. Yet Scotland would be only 1% of the EEAs voting population, unable to change or stop any EU law.

The presence of border checks similar to those between Switzerland and France assuming no EEA accession or between Norway and Sweden assuming it would be an irritation, probably a minor one, though surprises do happen such to this unfortunate holidaymaker.

Scotland and Northern Ireland could harmonise many aspects of normal life with the Republic of Ireland, and could competently work with similar nations in EFTA to negotiate trade policies. 

Would this need Scottish independence? On the contrary it would require, formally, the SNP and aspects of Stormont's government not pursuing independence for its duration. This new agreement to enter the EEA with crown consent, a Dal Riada Agreement to give it a catchy name, would require devolved governments committing to a United Kingdom. 

Following Hoyvik's principles it could be terminated by the UK, by the EEA members or by the devolved assemblies with one year's notice. This is also the case for the EEA itself.

So why am I writing this as a Eurosceptic "yoon" with a Lancashire accent now domiciled in Edinburgh? 

Because I am sick of Nats playing victim. Really, I'm sick of unionists being blamed for holding back Scotland with allies in the south.

Because I have lived in England, in a devolved part of the UK and in a crown colony that's self-governing and takes part in international agreements and exercises a level of autonomy that makes Holyrood look a joke right now. 

Because I have seen two referenda come and go, and both results received with a great degree of reluctance. I have seen the SNP chase parked cars before just to show their ability to bite them and I've seen them torn apart on economics, on trade, on currency, even on Dr. Who on the BBC.

Actually, I think that last one was down to us. Anyway, I am sure that this agreement would work if we had a decent government up here. We don't. We have ministers mucking up the railways, MSPs complaining about Toblerones and bottled water at WHSmiths, bottling welfare that the Isle of Man manages just fine, and inverting Greenland against England's will, or something like that.

I think if the SNP ever found themselves around a table with sharp-suited Swiss bankers, Norwegian shipbuilders and a hedge fund manager slash absolute monarch of Liechtenstein dealing with the Koreans, the Chinese, and Americans (yes that would include Donald whose golf courses the SNP like to spoil).  Their heads would spin off.

I have seen enough to know objectively they are out of their depth so why not let them try their luck in the grown ups' pool? Who knows? They may grow up and really make a good go of it. Then again they may stall badly, panic investors, terrify voters and drop the lot. In doing so devolved governments would simply revert to the UK trade position, even if it may have altered in their absence from the table.

This would be essential both for democracy and common sense as EFTA partners would expect some assurances that the ructions of Scottish independence or something similar in Northern Ireland would not adversely affect them while they are in trade talks with other countries. Call it a stability premium.  Imagine the first time the Swiss sit down with Nicky and talk about MIFID2, MARPOL and the REACH directive!

The new EFTA template between the UK and devolved assemblies could be written into their respective acts and exclude Scotland and Northern Ireland MPs and voters from trade deals that England and Wales would be negotiating. 

The foreword to such an agreement for Scotland could be as follows:

Members of the European Free Trade Association, of the one part, and the Government of the United Kingdom and the Scottish Government of the other part;

Hereinafter referred to as the CONTRACTING PARTIES;

HOLDING in abeyance all processes preparing succession of Scotland from the United Kingdom for the whole duration of this agreement;

WISHING to enhance the economic relations between members of the EFTA and Scotland and to harmonize their economic development;

EMPHASIZING fair conditions for competition in a unified market with a customs union;

DETERMINED to extend their economic relations to generally all sectors of economic activity;

DETERMINED to develop and enhance their co-operation in other fields;

HAVE DECIDED to abolish all obstacles to economic relations between Scotland and EFTA within the substantive scope of this Agreement including accession through this agreement, for its duration, to the European Economic Agreement.

That's all it takes, a text taken directly from the Hoyvik Agreement with a few obvious amendments. The High Court in Scotland could help police the agreement with the Scottish government joining the EEA secretariat and be the highest legal authority regarding EFTA matters in Scotland.

It would ultimately be subsidiary to the European Court of Justice and EU directives within the EEA acquis and have NO say in revising them at all.

This proposal allows Scotland and Northern Ireland, within limits placed on immigration by the UK, to enter into the European Economic Agreement as member nations of and committed to the UK. 

I personally think the disruption is not remotely worth it and will force Scotland to rely upon the bargaining power of the Swiss and Arctic nations instead of voting with the UK as a whole to secure the best trade deals.

Given how the SNP has been unable to take up new powers on welfare I think if they were given this ball they wouldn't know what to do with it.

But as an Englishman abroad I feel the need to say it: I have no reason to stand in Scotland's way if it wants this if the only thing stopping it is the fact our Scottish government is too thick to think laterally to cover all possibilities and I am happy as an adopted Scot to put this idea out there. 

It could allow Scotland a chance to actually grow up, get real and behave as a stand alone country and then give it all up with a year's notice. Even with Westminster leaving us to choose we'd find ourselves having to cooperate with several countries to make it work. 

Guess what? That's what modern countries do. They cooperate instead of blaming everyone else when things don't go right. So let's make this clear. 

Scotland could apply to join EFTA and the EEA and stay in the Single Market as part of the United Kingdom on the basis it and EFTA remained committed to Scotland remaining in the United Kingdom for the duration of that agreement, did not seek processes leading to independence during that time and did not interfere with rUK trade negotiations during that time, if the United Kingdom, Scotland and EFTA agreed.

Got that? It is possible with obvious and essential preconditions. If the SNP values the single market so much, they are duty bound to consider it or stop chasing parked cars just for the sake of it.

Dr. Jon Stanley is Health Research Fellow at the Bow Group, a Junior Doctor and a Member of the Royal College of Surgeons