Gordon MacIntyre-Kemp: Out of the UK, in the EU? Confusing times ahead

Turnout will be key, Leave supporters are more motivated to vote and even in Scotland the Remain vote is based on a practical acceptance that the common market is vital but there is no great love for the institution and I think it unlikely that George Square will fill with people waving starry blue flags. The more motivated Yes campaign doubled its support in the long run up to the indyref and now vote Leave has that advantage without the problems of an entirely hostile press.

Johnson and Gove’s announcement of tighter immigration rules with the need to speak English and a points system is a potentially winning move. Locking-in and motivating the anti-immigration lobby they are making a case for leading the next Government as well as for winning the EU referendum.

The media is now starting to discuss how a Brexit might trigger another indyref but the true position of the SNP is much more nuanced than “if there is a Brexit we call a referendum”. A Brexit against the wishes of the Scottish people would only be a trigger it it was match with support a majority support for independence. The Scottish Parliament has an independence-supporting majority but the lack of a one-party majority may convince Westminster to refuse to make the referendum official. Westminster attempting to block a referendum against the will of the Scottish people would of course make it almost impossible for No to win any eventual referendum official or otherwise.

Some polling companies have been asking: ‘Would you support independence if there was a Brexit?’ But people can’t predict how they will emotionally react to a Brexit and the news coverage that follows until after that happens. My view is that a surge in Yes support is more likely post Brexit than polls can predict as currently people are answering based on how much they like the EU and not on how they feel about Scotland’s vote meaning nothing and that Johnson and Gove look likely to be the next PM and chancellor!

Following a forced Brexit, the options available are not as limited as you might think. Assuming a mandate from a Scottish Remain vote of over 55 per cent, preferably closer to 60 per cent, then the Scottish Parliament should be asked to support a motion asserting its right to hold a referendum if the majority of the Scottish Parliament votes for it. The Scottish Government should then reject the Brexit result as not applying to Scotland and call for separate negotiations with the EU. When Greenland (an autonomous part of Denmark) left the EU the Danes (being the member state) appointed a negotiator to represent Greenland. In Scotland’s case the UK’s lead negotiator for Scotland should be a team led by the First Minister. That team would then negotiate the terms of Scotland to remain an EU member state if it votes for independence prior to the UK leaving the EU. In other words, Scotland becomes the continuing state, inheriting the UK’s membership of the EU on the basis that Scotland is currently a member, meets all EU regulations and membership criteria and has democratically voted to stay a member in a nationwide referendum. Ipso facto we are EU members and cannot be removed from EU membership as long as we are in the process of leaving the UK at the time the UK leaves the EU. There would have to be some renegotiation of the terms of membership but exemptions from Schengen would stand as we would be maintaining open borders with the rest of the UK and Ireland and we would not qualify for joining the Euro anyway.

Simultaneously the Scottish Parliament should open up negotiations on joining Efta so that we can maintain common market access through that route if required. They should also negotiate with the UK Government as we owe it to the 55 per cent who voted No in 2014 to give Westminster the chance to vote through an unbreakable offer of full home rule and devolution max – everything except defence, and international relations and a progression plan towards full fiscal autonomy (they won’t). We would then hold an independence referendum before the UK leaves the EU in 2018. The option on the ballot being only those that are 100 per cent guaranteed and pre-negotiated so there can be no vows or promises of more powers during the campaign as we know know they are already off-the-table before we vote. So the options would likely be stay in UK but outside the EU, or independence with either EU or Efta membership depending on what’s best for Scotland. This would have the benefit of turning the 176,000 EU nationals who voted 60 per cent No in 2014 into 70 per cent-plus Yes voters.

I asked some leading Scottish lawyers with an interest in constitutional affairs about Scotland and the continuing state for EU membership? James Aitken says “Everyone seems to assume that in the event of the UK voting to leave but Scotland voting to stay that the only negotiations taking place will be between the EU and the UK. That blinkered thinking ignores the political reality of the situation we would be in. What is to stop the Scottish Government beginning its own negotiations with the EU? Can you imagine the EU refusing such a request in these circumstances. I also suspect these negotiations will be concluded far in advance of the UK’s. What is there to discuss? Not that much. Once they are concluded a second independence could be called with the EU question already answered”. Brandon Malone points out that there are no legal precedents “All we can say with any certainty is that if Scotland votes to remain but the UK as a whole votes to leave the EU, we will have a very fluid politico legal landscape in the aftermath of the vote”.

“If there were to be a Yes vote in an indyref prior to the actual Brexit date, then whether or not Scotland might be regarded as the continuing EU member as a matter of the international law, given the nature of the EU, and the lack of a rival for that position, it seems inevitable that Scotland would take the former UK’s place as member state without ever having to leave”.

I would like to see the UK vote to stay and for Scotland to become an independent nation with an EU-style relationship with the rest of the UK and the EU. The tightening of the polls UK-wide however also brings in the possibility of what I call the Schadenfreude scenario when Scottish Stay votes keep England in the EU against its will, if Leave win in England by less than a per cent then it could happen and boy, would that make politics interesting.