Nicola Sturgeon goes for independence in the EU

Just as all eyes were on Theresa May, who is expected to trigger Article 50 as early as 14 March, Nicola Sturgeon has stepped in ahead of her to announce a new Scottish independence referendum before Brexit takes effect.

The normally cautious First Minister of Scotland has taken a bold decision. Sturgeon has reiterated the Scottish National Party’s support for an independent Scotland to stay in the EU. With opinion polls at best showing a 50-50 split in opinion on independence, and most showing the anti-independence side just ahead still, there is still all to play for.

This is not what Theresa May wanted – though the Conservatives will have seen it coming. There is now a question of whether the British Prime Minister will agree to the necessary legislation at Westminster for Scotland to hold an independence referendum – or whether she might insist Scotland waits until Brexit is complete.

Sturgeon, in her statement to Scotland’s assembled media on Monday morning, was clear on timing. She wants an independence referendum after the UK’s exit talks with the EU-27 are concluded in autumn 2018, and ideally before the UK leaves, probably in March 2019 (though she left open the possibility that ‘indyref2’ could be held just after that).

This timing looks sensible. Opinion polls have suggested there is more support for holding a second independence referendum once there is clarity on a Brexit deal. At the same time, if Scotland is going to choose independence in the EU there is no point going through the costly, detailed and time-consuming process of unwinding EU legislation, policies and networks only to reinstate them shortly thereafter.

By autumn 2018, unless Brexit talks have broken down completely (which would lead to a deep political crisis in the UK), the exit deal between the UK and the EU-27 should be clear. There should also be an outline framework of the goals of a future trade, foreign policy and security relations. At that point Scotland will make its choice – if May allows it.

But there is a timing problem. Ahead of the 2014 independence referendum, the SNP argued that Scotland could separate from the UK, in the event of a ‘Yes’ vote, in 18 months – others argued it would take much longer. But even if it only took 18 months, a ‘Yes’ vote in autumn 2018 would see Scotland still in the UK when it leaves the EU in March 2019.

The EU has been good at coming up with pragmatic and flexible deals in the past – from bringing East Germany into the EU in 1990 at the point of German  reunification, to bringing the whole of Cyprus into the EU in 2004 with the acquis suspended in northern Cyprus. But this is a different challenge. The UK will be outside the EU. So even if the UK government agrees, after a Scottish ‘Yes’ vote on independence, that Scotland should not unwind EU rules and regulations with the rest of the UK, how it will achieve this is far from obvious.

There may be no quick legal fix here to give Scotland some sort of ‘special status’ in the EU while it is a sub-state of a third country that has just left the EU. But looked at pragmatically, the issue in 2019, after a Scottish ‘yes’ vote, would not be keeping Scotland in the EU but keeping Scotland’s laws and policies aligned with those of the EU. Once Scotland was independent, say in 2020, this would be relatively easy – the EU is used to ensuring candidate countries align with the EU’s rules. Perhaps an association agreement could be rapidly signed.

The period that would be tricky would be the year or two while Scotland was part of the UK and outside of the EU, after a pro-independence vote. There would need to be three-way talks between London, Brussels and Edinburgh on how and whether Scotland could stay aligned with EU laws. This may be complicated, but the real question will surely be about political relations.

If the UK has agreed a bad-tempered exit deal with the EU-27, is embarking on tricky, longer-term trade talks with the EU-27, and is facing the break-up of the UK, London may be in no mood for pragmatic, trilateral talks. But it would not be in the UK’s interests either to waste time negotiating a divorce deal with Scotland based on both the UK and Scotland being outside the EU, for it only to be renegotiated as Scotland re-joined the EU.

If Scotland votes ‘Yes’ to independence in the EU in late 2018 or early 2019, then on a ‘normal’ or fast-tracked accession process, it could be a new member state in the EU by 2023 or 2024.

If Sturgeon loses the independence vote, she will surely have to resign, Scotland will leave the EU with the rest of the UK, and the EU will stay at 27 member states. Sturgeon has thrown the dice – and the next two years in UK and Scottish politics are going to be interesting indeed.