For several years now, my Danish friend Troels Just has given me the benefit of his perspective of European Union matters and Scotland’s relationship with the EU in a UK context., and I have found them invaluable.
Troels takes a keen interest in Scottish politics and Scotland’s pursuit of independence, and he responded to the following question posed online by someone interested in Nicola’s announcement about her Tuesday 20th December 2016 revelation of her Scottish – and UK – plan for Brexit which we all await eagerly. Troels has kindly given me permission to reproduce his reply in full.
"Is it actually possible for Scotland to stay part of the UK and have different agreements with the EU on big issues like the single market and immigration than other countries in the UK? I’m all for Scottish independence but I’m curious - it just doesn’t seem feasible and I feel like Nicola knows this is just a step that has to be taken before independence - the actual end game - is pushed"
Troels replied as follows -
I am from and located in Denmark, I have followed politics in Scotland for at least seven years, and I think I can help you understand what theoretically could be done.
At the moment, devolution and things like a separate legal system domestically notwithstanding, the UK state itself is a unitary state, that is to say it is, formally, one undivided state as opposed to a federal state like Germany or Belgium (which I will come back to later).
Scotland is therefore not a legal entity in international law, i.e. it cannot sign legally binding treaties with other states or international organizations, as obligations and rights created by such treaties fall upon Westminster.
However, that can indeed be changed, by passing a law at Westminster that gives Scotland legal capacity internationally, and thus able to sign treaties. This is the case with Belgium's regions, they are legal entities internationally and can act independently of the federal government in certain areas within their competence.
Thus the first step is to give Scotland, what is called "legal personality" in international law. (Interestingly this was enacted for the EU as a whole in the Lisbon Treaty, thus the EU can sign treaties internationally.)
The second step would be to devolve all the relevant powers from Westminster to the Scottish Parliament and the Scottish Government that would be affected and necessary to operate within the single market. So for example, powers over immigration would be necessary for the Scottish Parliament to implement freedom of movement to Scotland while it was discontinued in England and Wales by virtue of the UK, as a whole, withdrawing from the EU and the single market (f that is indeed what happens).
Specifically in regard to immigration, there is precedent for this internationally: the Canadian province of Quebec has long had the powers to have its own immigration policy and system.
Other powers include public and private commercial law, financial services including banking regulations, intellectual property, consumer protection, telecommunications, industrial relations - I could go on and go, but essentially the whole nine yards of areas that the single market impacts on, which is a large part of Schedule 5 (Reserved matters) of the Scotland Act.
The combination of the ability to sign treaties and powers over all the aspects impacted on by the single market will give Scotland the ability to sign either the EFTA treaty (Just like Norway, as it has been mentioned a lot), which is a multi-lateral treaty, or a custom bi-lateral treaty like Switzerland has.
This would take Scotland very close to independence because of the vast powers that would have to be devolved. To work on this point a bit more, the reason these need to be devolved is that, say the EU passes a law that does X in regard to roaming charges on mobile phone calls and Westminster passes a law that does Y in that same area, then Scotland needs to be able to implement the EU law separately from Westminster.
As I said, this would be very close to independence, but powers over foreign affairs, defence, currency etc. and crucially, constitutional matters and full sovereignty would presumably remain in Westminster's hands.
The final one is more crucial than it gives off, because what it means is that Scotland still would not be able to legally declare independence on its own, nor could the Scottish Parliament alter its own powers vis-a-vis Westminster, and thus Scotland would still be a part of the UK, but at the same time:
1. a legal entity in international law
2. a member of the single market
3. self-governing in the highest sense, short of full independence.
I hope this clarified what you asked.