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.