Could an independent Scotland join the EU after Brexit?

The rest is complicated, and quite likely chaotic. But the substantive and symbolic magnitude of Brexit actually happening and of the political and economic self-harm it will impose should not be underestimated. There is no easy or fast route back from this. And the UK’s failing politics will continue to fragment and divide under the strain.

Equally, in Scotland, polls have suggested for some time that, if Brexit happens, there is a majority for independence in the EU rather than staying in the UK. And there’s a majority view that Scotland will be better off doing that, even if the UK leaves with a deal and not a no deal.

A Tangled Brexit Path?

Johnson’s withdrawal agreement with the EU, leaving Northern Ireland effectively in the EU’s customs union (in theory in the UK’s), is now anticipated to clear Westminster rapidly. Critically, it will do so without the detailed, challenging scrutiny it, and the EU withdrawal implementation bill, should have.

The European Parliament will then vote in January on the deal, leading to exit day on January 31.

Brexit life will then get challenging as the EU-UK talks on the future relationship begin.

The EU27 agreed at their summit on Friday to have a draft negotiating mandate for the talks ready once the UK leaves – based on the outline political declaration and on previous EU Brexit guidelines. The language is robust: “The future relationship will have to be based on a balance of rights and obligations and ensure a level playing field.”

Johnson will need to get the UK’s negotiating stance drawn up fast, not least if he is serious about his proclaimed aim of agreeing a deal within 11 months to leave at the end of 2020.

Much of the debate will sound familiar – how much friction will there be at the UK-EU border (or rather the Great Britain-EU border given Northern Ireland’s separate deal), how close or not will the UK stay to EU regulations including social, environmental and worker protections.

But the EU’s dominance in the talks is set to increase substantially. The UK will be a third country, negotiating with a large bloc many times its size and fully across all the issues. It will be out-gunned.

And to agree a basic deal getting to zero tariffs and quotas by the end of 2020, the UK will have to fold on most of the EU’s demands on a level playing field.

Now Boris has his majority, Brexit is due to be finalised by the end of 2020

If not, Johnson can ask for an extension of transition by June, or leave on WTO terms by December (or perhaps fudge it concealing an extension within the first phase of a new trade deal).

And by next June, basic agreement is also meant to be done on fisheries and financial services (as set out in the political declaration).

This all has the potential for negotiating upsets – and for damage to the economy from creating hard borders, not least for our dominant services sector barely touched on in all this.

Some argue Johnson might tack back to a ‘soft’ Brexit but this seems unlikely – no global trade deals, no regulatory freedom – it’s not what his powerful entourage have in mind.

Where Now for Independence in the EU?

Where does this leave the goal of independence in the EU? From one perspective, it affects it very little. If Scotland is constitutionally and legally independent, then as a European state it can apply to join the EU through a normal accession process, irrespective of the UK’s relations with the EU.

But, of course, if the rest of the UK has left the EU under some sort of ‘Canada minus’ trade deal, it impacts it a lot.

The Scotland-England border would be the external border of the EU in this scenario, and there would be customs and regulatory frictions – how deep will depend on the nature of the EU-UK deal. Services trade would be impacted too, since Scotland would be fully in the EU’s single market and England and Wales no longer (Northern Ireland only partially).

There will be unavoidable economic costs here, but potential benefits too, both of being in the EU and of attracting more foreign investment as a result.

A serious discussion and analysis of these potential costs and benefits is needed – neither exaggeration of costs nor a Brexiter-style dismissal of them will help anyone.

There has been much debate too on how fast or slow Scotland’s accession might be and on whether it could be vetoed. After all, getting to candidate status, opening talks and closing them, all has to be agreed by the EU at unanimity.

But there has been much negative exaggeration here as well. The accession process is bureaucratic, detailed, pain-staking. But 16 countries have joined the EU since 1995. They range from Nordic countries like Finland and Sweden to the divided island of Cyprus to countries from the former Soviet bloc and the once war-torn Yugoslavia.

They include the Czech Republic and Slovakia – their split in 1993 did not put them behind any of the other central and eastern European candidate countries.

That Scotland would somehow be much more politically controversial or technically problematic than this range of countries is simply not plausible (nor is it the view in current EU member states). There are 35 chapters of EU laws and regulations that have to be agreed. Scotland already meets most of those – but would, certainly, have to show as an independent country that it has the democratic, regulatory and institutional structures that can continue to implement all these. And yes, issues around the deficit and monetary policy/currency may be tough and could slow things down, as would any regulatory divergence in the meantime.

But in the end, whether it took an independent Scotland 4 or 8 years to join, the path is clear.

READ MORE: Adam Price: Welsh independence will follow Scottish example

And once Scotland left the UK, the EU would agree an association agreement with it, one that would give substantial access to EU markets until talks were done.

Where it may get interesting is the impact of Scotland leaving the UK on any UK-EU trade deal – this may need adjusting, not least on fisheries. So while the EU won’t negotiate with Scotland until its independence, some informal three-way talks may be needed in the background of Scottish-UK divorce negotiations.

So an independent Scotland can join the EU. But it’s a legal, political and technical process. And those who imagine that the EU will state definitively that Scotland will rapidly be a member will be disappointed.

Some MEPs may make positive noises, but the EU Council and Commission will not pre-empt their own decision-making processes.

In the end, if Scotland aspires to be independent in the EU, debate is needed on the accession path but must also rise above it.

What sort of member state in what sort of EU does Scotland want to be – given European and global challenges? While the UK embarks on an all-consuming Brexit, that is the serious constructive discussion that should be centre stage.