Scotland will not be voiceless in these negotiations and from the very beginning the Scottish Government has sought to find solutions to the democratic conundrum that we have been presented with as a result of the 2014 independence referendum and the 2016 EU referendum. The First Minister set up a standing council of independent experts to advise her on Brexit.
Based in part upon the council’s advice (though not written by them) the Scottish Government published “Scotland’s Place in Europe." This proposed:
- That the UK should remain in the single market;
- That if the UK were to leave then a differentiated solution should be created for Scotland to allow it to remain within the single market.
To be clear, this was a huge compromise on the part of the Scottish Government. Nor has the Government ever pretended that this is simple; but, it is important to realise that the EU is flexible and the proposal is possible. The UK’s various opt-outs illustrate the EU’s flexibility, as do the myriad of differing relationships that various territories around the world have with the EU.
However, the EU is, first and foremost, a club of member states. That means that so long as Scotland remains a part of the UK it will be represented via the mechanisms of the UK. For such a solution to be considered the UK must argue for it.
The mechanism selected by the UK Government to enable dialogue with the Scottish Government (and other devolved administrations) is the Joint Ministerial Council (JMC) and, specifically, it created a new body (JMC-en) to handle the European negotiations. The terms of reference for this body are encouraging: they seek to “agree a UK approach to, and objectives for, Article 50 negotiations; and provide oversight of negotiations with the EU”.
However, there have been numerous problems caused by the UK Government’s approach. For example, the UK Government unilaterally announced that it intended to remove Scotland and the UK from the single market with no discussion or even contact with the Scottish Government.
The offer within Scotland’s Place in Europe remains on the table, and the Scottish Government intends to work constructively with all those who wish to maintain Scotland’s European links.
 For more examples and information about these see David Martin and Alyn Smith, ‘Variable Geometry Within the EU’, Submission to the First Minister’s Standing Council on Europe, December 2016.
The EU’s reach across the world is unparalleled. 139 EU delegations work in close cooperation with diplomatic services (embassies, consulates) of the EU member states and third countries.Read more
Before delving too much into the negotiating process it is worth covering the basics of the how the EU works. A lot of misinformation is spread about the EU, but the EU is, first and foremost, a war avoidance mechanism.
European countries have, over the centuries, been more used to war than peace. Over the years, countless millions of our people have died because politics went wrong and leaders fell out. The thing we now call the European Union was born out of the horror of the Second World War. It was designed as a way to bring the people and leaders of European countries together, to encourage prosperity and, in so doing, make war that bit more unlikely.
The original agreement came about when six European states (France, Belgium, Luxembourg, the Netherlands, Germany and Italy) created the European Coal and Steel Community in 1951. Through the agreement of subsequent treaties, these nations have created one of the world’s largest single markets comprising of 28 member states and over 500 million citizens.
Scotland, along with the rest of the UK, joined in 1973 and has now been a member for forty-three years. We have enjoyed peace, stability and economic prosperity as a result of this highly successful collaboration. That future is now in question.
Regional Selective Assistance (RSA) is a discretionary grant which gives Scottish companies another potential source of funding for investment. In total since 2010 over £95 million of RSA were accepted by SMEs in Scotland.
Since 2010 RSA grants have helped to either maintain or generate more than 20,000 jobs across Scotland. That firms have multiple avenues of funding is a positive feature that performs an important role in generating and supporting Scottish jobs.
WEST Brewery in Glasgow ; Natural Power Consultants Limited ; Glencairn Crystal  Firefish Software .
 See Scottish Enterprise for more details.
The European Investment Bank (EIB) is Europe’s long-term lending institution and provides funding on top of the EU budget (to be clear, funding from the EIB is in the form of loans). EIB funding goes directly to the Scottish Government on a project by project basis, and allows greater flexibility in investment decisions. The SNP Government has had huge success in using EIB funding in order to turn Scotland away from the ruinously expensive PPP/PFI (Public Private Partnership/Private Finance Initiative) projects, delivering much-needed capital investments to get us through the recession, and delivering more value to the Scottish taxpayer.
- In February 2014 the EIB agreed to loan £175 million towards upgrading the M8 between Glasgow and Edinburgh.
- In 2015, £109 million was authorised for the construction of a new District and General Hospital in Dumfries and a further £83 million for the new Royal Hospital for Sick Children in Edinburgh.
 For further information on Non-Profit Distributing (NPD) vs Public Private Partnership/Private Finance Initiative (PPP/PFI) see: ‘Statistical information relating to NPD and PPP/PFI projects in Scotland’, The Scottish Government, 17 December 2014.
As Scots, you are represented in the EU firstly by six directly elected MEPs. They are elected to sit on committees relevant to you and represent your interests, making sure that laws work for Scotland.
The European Parliament has significant power over all the EU’s activities since all legislation must be approved by a majority of the 751 MEPs. In recent years this has been demonstrated on a number of occasions, notably rejecting trade deals that weren’t up to scratch and defending privacy rights.
Beyond this, the Scottish Government itself has responsibility for a range of issues which significantly overlap with the EU. The Scotland Act 1998 set out that it is the responsibility of the Scottish Government and Parliament to implement European Union regulation when it relates to devolved issues. Such issues range from economic development, law and order, local government, fisheries and agriculture, protection of the environment, transport and climate change. The policy aims of the EU have been closely tied to the Scottish Government’s 2020 Growth Strategy and there is a lot of common objectives between Scotland and the EU.
So the Scottish Government is responsible for implementing EU laws. However, when it comes to agreeing what the laws actually say, under the current UK constitution, Scotland's Government is represented in the Council by the UK Minister. Scottish Government Ministers may attend, but always only with the permission of the UK Government.
Obviously, as an SNP MEP I would like to see Scotland in a different role. However, I want, here, to explain how things work now. Even with the great strides we have made since 1999 in speaking for Scotland, when it comes to the EU, the UK is our representative. This is not an EU issue, but a UK issue.
The Smith Commission, set up after the independence referendum, agreed that Scotland should expect a greater say in how the UK interacts with Europe. Many European countries already operate such systems, notably Belgium where ministers from the federal states governments’ can represent and conclude agreements upon Belgium’s behalf.
There has, however, been little significant change since the events of September 2014. This is not due to the EU. The EU structures are open to other ways for Scotland to be represented.
Did You Know?
Under the Scotland Act 1998, all Scottish legislation must be compatible with EU law. If Scotland were to leave the EU as part of the UK, no satisfactory explanation has yet been provided of how this will impact upon the Scottish Parliament. Clearly, it will have a significant impact on many areas that are devolved.
 ‘The Smith Commission Report’, November 2014. Gordon Brown: “We’re going to be, within a year or two, as close to a federal state as you can be” ‘Gordon Brown backs federalism in event of No vote ’, The Scotsman, 15 August 2014.
 Stéphane Paquin, ‘Federalism and Compliance with International Agreements: Belgium and Canada Compared’, in ed. D. Criekemans, Regional Sub-State Diplomacy Today (Leiden, 2010).
The EU only has power because the member states have agreed it should. The EU has three sorts of competence: exclusive, shared and supporting. Basically, this is the difference between whether the EU is in charge of an area (once the member state governments and the MEPs have agreed), whether it is an area that national governments and the EU co-operate in or an area where the EU supports Member States. These are as follows:
Areas of Exclusive Competence
Areas of Shared Competence
Areas of Supporting Competence
One of the most frequent myths you will hear is that the EU dominates domestic law. It doesn't. This is often associated with the inaccurate statistic that 80% of UK law is made in the EU. Originally, this myth sprang from a speech by former Commission President Jacques Delors who stated, in July 1988, that “within ten years 80% of economic legislation would be of EU origin”.
He was wrong.
Currently around 15% of UK laws are agreed in the EU or have an EU influence and a similar figure applies to regulations. This is the norm across the EU; Jacque Delors was wrong across Europe, both inside and outside the Eurozone:
- 10% of French laws were directly transposing EU directives, while 25% of them included elements of EU origin;
- 9.6% of all primary and secondary laws in Denmark had an EU origin.
 ‘How much legislation comes from Europe? ’, House of Commons Research Paper, vol. 10/62 13 October 2010. See also: Renaud Thillaye, ‘British Political Parties in Europe: Reliable, Ambiguous, Reluctant and Dismissive’, Votewatch Europe/Notre Europe Brief, March 2014.
The Parliament is directly elected by the people of Europe once every five years. This gives the 751 MEPs a unique and powerful voice.
The Parliament legislates (alongside the Council), provides oversight of the Commission and, perhaps most significantly, approves the entire EU budget. The Parliament also reserves the right to veto trade deals, as occurred in the case of Anti–Counterfeiting Trade Agreement (ACTA). This power will be of huge significance in relation to the withdrawal agreement for the UK and any future free trade agreement between the EU and the UK. At the moment Scotland has six MEPs. Unless Brexit can be prevented these will be last to represent Scotland.
The Commission is the Civil Service of the EU. In the same way as in Scotland where the Government is divided into civil servants working in Ministries answerable to a Minister, the Commission civil servants are organised into Directorates-General answering to a Commissioner.
There are 28 Commissioners, one nominated by the government of each member state. The Commission has three main functions:
- it proposes new legislation (or amends existing legislation) to Parliament and the member states;
- implements and enforces EU laws once they are agreed;
- increasingly represents the EU and the member states in the wider world, for example in trade negotiations.
Although it is often condemned as undemocratic, the Commissioners overseeing the Commission are appointed by the Council and Parliament, and any legislation it suggests is amended and negotiated by the Council and Parliament and does not come into force unless there is agreement.
The member states are the 28 building blocks of the EU, and meet in the Council, where one Minister from each member state sits down to find a compromise on whatever is on the table.
A few times a year, the Council meets as “The European Council” when the heads of government meet to set the overall political direction of the EU. Usually though, the Council meetings are about technical negotiations over technical legislation, with the Council being co-responsible with the Parliament for amending and negotiating legislation proposed by the Commission.
The Council and the Parliament, acting together, agree laws, but even then the laws do not actually enter into domestic law. This only happens when they are approved by either the Scottish Parliament or the Westminster Parliament. Both have the flexibility to implement the laws in the way best suited to them. This flexibility is threatened by Brexit as the final say over how Scotland implements policy in these areas will be held by Westminster.