Can Scotland and Northern Ireland Remain in the EU?

 Photo by David Wilkinson

Photo by David Wilkinson

On 23 June 2016, 52 per cent of the UK citizens that participated in the Brexit referendum voted to leave the EU. Still, Scotland and Northern Ireland voted to remain. The following morning, Nicola Sturgeon, declared that she intends to ‘explore all options […] to secure [their] continuing place in the EU.’ At the same time, Sinn Féin has called for a referendum for the unification of Ireland in order for Northern Ireland to remain in the EU. So, the question is how it could be made possible for the two UK constituent nations that voted to remain to not be taken out of the EU against their expressed will.

In a newly published paper, I have argued that there are two pathways. The first entails the secession of Scotland and Northern Ireland from the UK through democratic referendums. Straightforward as it may sound, this pathway is fraught with difficulties. Section 1 of the Northern Ireland Act provides for the right of secession of Northern Ireland. However, a referendum for the unification of the island can only be organised if ‘it appears likely to [the UK Secretary of State] that a majority of those voting would express a wish that Northern Ireland should […] form part of a united Ireland.’ Theresa Villiers, the former Northern Ireland Secretary made clear that, according to her, ‘there is nothing to indicate that there is majority support for a poll.’

The Scottish situation is even more complicated. Unless there is a similar political agreement to the one that led to the 2014 independence referendum, Holyrood does not have the right to unilaterally organise a second referendum. Moreover, in order for Scotland to remain in the EU as a newly independent state, the consent of all the existing member states is necessary. It is widely known that certain member states such as Spain would be at best reluctant.

The second pathway explores the possibility of both remaining in the EU without seceding from the UK. Again, in this case, there are a number of issues that would have to be addressed. First, if Scotland and Northern Ireland remain in the single market while England and Wales withdraw, this would lead to the creation of a hard customs border. English and Welsh traders would face the EU common external tariff even when they ‘export’ to Scotland and Northern Ireland. This could be prevented if the UK signs a free trade agreement with the EU. At the moment, it is difficult to know what the negotiating position of the new British government on the future relationship between the UK and the EU will be. It seems, however, that they favour some kind of free trade arrangement.

Second, if England and Wales withdraw from the single market while Scotland remains, there will be a territorial border between an area where the free movement of persons applies and one that does not. This would practically mean that the Scottish authorities would have to police this ‘EU border’. A similar ‘EU border’ would exist between Northern Ireland and England and Wales. Again, this problem would not arise if free movement of people would apply to the whole UK territory. However, given the pledges of the Leave campaign to significantly restrict (if not abolish) the free movement of people, this seems unlikely.

More significantly, a dramatic constitutional amendment to the devolution arrangement would be necessary in order for both regions to take part effectively in the political and constitutional life of the EU. If Scotland and Northern Ireland were to remain in the EU without seceding from the UK, they would have to acquire competences in all EU-related areas. In that sense, they would be arguably the regions with the highest legislative autonomy in the world, making it hard to see the difference between their status and independence.

Given the complexity of the task, the question is why the UK government and the two constituent nations might want to opt for the second pathway.

For the UK government, the biggest incentive to offer such a solution would be that it represents a tangible alternative to secession. The UK might become almost a confederation but it will still be one recognised state under international law. The devolved administrations, on the other hand, could inherit at least some of the privileges of the UK’s EU membership such as keeping the sterling. They could also avoid the tensions and divisions that could be caused because of their secession.

In any case, both the current UK and EU constitutional frameworks seem to be unable to accommodate the very different aspirations of the UK constituent nations. In this sense, their significant amendment is almost unavoidable.

This article was first published on Global Legal Post on 21 July 2016