Scotland’s Place in Europe

SCOTLAND’S PLACE IN EUROPE | 27
109. The Channel Islands are not in the EU but, by virtue of Protocol 3 of the UK
Accession Treaty, are in the Customs Union and, for the purposes of trade in goods,
are essentially in the European Single Market. Liechtenstein and Switzerland are in
a customs unions with each other, even though the former is part of the EEA while
the latter is not. A differentiated solution for Scotland would vary in detail to these
and the other examples that exist, but the principle would be the same.
110. It should also be borne in mind that the situation the UK has created is an
unprecedented situation, including for the EU. Beyond the text of Article 50 there
are no set rules for what happens now. There will require to be imagination and
flexibility on both sides of the negotiation. Indeed, we already know that there will
be a requirement for flexibility in the UK Government’s approach to negotiating
Brexit. We know that geographical flexibility will be required in relation to
Northern Ireland and Gibraltar; and the Mayor of London has indicated that he may
seek special arrangements for London, particularly in relation to immigration.
111. In addition, the UK Government has indicated that it may seek different solutions
for different sectors of the economy and has anticipated that by its actions in
reported assurances, albeit confidential, to Nissan 53 . Therefore, in putting forward
the proposals in this chapter, we are not asking for unique treatment for Scotland
but merely requesting that the UK government shows a willingness to take a
flexible approach in relation to Scotland in the way it is already committed to doing
for other geographies and sectors.
112. The principle of differentiation is also inherent in the logic and process of
devolution and indeed in the establishment of the Union itself. The Act of Union, in
preserving the distinctive institutions underpinning the law, the Church and
education in Scotland accepted that principle and made it a foundation stone of the
United Kingdom. More recently, devolution has allowed policies to diverge across
the UK in order to reflect the democratically expressed preferences of the different
nations of the UK.
113. It is therefore clear that the proposals for differentiation in this paper can be seen,
not just as a further step in the ongoing constitutional reform process that began in
1999 with the re-establishment of the Scottish Parliament, but also as going with
the grain of the underpinning constitutional traditions of the UK. These proposals
would allow Scotland to retain full participation in the European Single Market and
merely confirm rights that already exist. Moreover, there are numerous examples
of this sort of differentiation elsewhere across the EEA.
114. As we set out in more detail later in this chapter, nothing in this proposal prioritises
the European Single Market over free movement and free trade within the UK nor
places such free movement and free trade on any different footing from presently
undertaken. Our proposal would secure for Scotland the benefits of the European
single market in addition to – not instead of – free trade across the UK.
53 https://www.theguardian.com/business/2016/nov/23/nissan-in-uk-treasury-refuses-to-tell-obr-if-cost-attached