|They're deliciously gingerbready. Get them now before the tariffs hit hard.|
The EEA is different from almost every other trading partnership because it prioritises fairness and enshrines that principle into legal obligations for all members. The idea here is to make sure that the market operates with a level playing field for all participants. This is achieved by issuing directives that are absorbed into the domestic legal framework of each nation in the EEA. It's worth noting that there is no attempt to harmonise the legal systems of European states because that would be absurdly complex, overly prescriptive and doomed to fail. Instead, the implementation of each directive is left to each member because the EU doesn't understand the inner workings of all 28 states and has no particular interest in meddling where it isn't needed or wanted. Directive 2004/38/EC, for example, governs the freedom of movement of people in the EU and EEA. That one seems to get the ideologues hot under the collar but it is just one of thousands of directives that define the operation of the single market. Let's look at another, shall we? Slightly more banal but equally as valid is Directive 2001/113/EC, which describes the sale of jam, jellies and marmalades. At some point in time a UK civil servant will have been given the job of legally asserting that jams with 3 or more fruits can be marketed as mixed fruit jam. Ponder on that for a second if you think your job is a bit boring.
All that limited harmonisation sounds great but it seems to depend on mutual trust. I'm a particularly suspicious character and don't even trust my own family with a fiver so how could I ever trust Norway to play fair with their fruit jelly legislation? The answer is that every member of the EEA is accountable to European institutions that check on the technical aspects of the adoption of directives. Moreover, every member is accountable to European courts that adjudicate on suspected infractions. This is all laid out in treaties that establish the operation of the European Union.
It should hopefully be clear that a Scotland-in-UK does not have the power to sign up to the obligations laid out by the single market. Migration, for example, is a reserved matter controlled by Westminster. As a consequence, the Scottish Government simply has no authority to implement Directive 2004/38/EC. I very much doubt if it even has the authority to implement its own jam policy. I'd be surprised to learn that food labellling is a devolved matter but if anyone knows more about this please leave a comment. The EEA could simply never accept Scotland as a member if it remains in the UK because it would be unable to uphold the membership requirements.
I worry that the First Minister is playing a dangerous game. First, she is not telling the harsh truth about the EU and the EEA. Pretending that European institutions have powers or structures they could never have is not helping the debate. Her position might even be worse than Boris Johnson's because while Boris refuses to accept the obligations, Nicola Sturgeon doesn't even have the power of refusal. I'm guessing she is playing a game that frames the UK Government in a bad light by promoting the idea that they are getting in our way. If Nr 10 was any wiser they would just tell her to go to the EEA, work out a deal and then the UK will work out the constitutional arrangements to make it happen. That's what I would do because we all know that she is going to get absolutely nowhere in Europe. The UK Government would then look as though they would have bent over backwards to help the Scots, while the EEA would suddenly look like the real enemy. It's only the utter incompetence of the UK Government that stops this happening but sooner or later they're going to work it out.
I'd far rather Nicola Sturgeon just came right out with it and said that EEA and EU membership are only on the table if Scotland becomes an independent nation. If it's not enough to swing the population behind her then that's just the way it is. Perhaps spelling out the pitfalls of leaving the EEA would be an effective strategy because that is guaranteed to happen on the current path. Really, it's time somebody took a rational approach to this mess. I don't support any political party but I have quite a lot of respect for the First Minister so it's a bit disappointing to see her playing the same game as Liam Fox and David Davis. Scotland needs to face the fact that the UK is forcing it out of the EEA. Given that certainty, Scotland then needs to work out where it stands as soon as possible because time is not on its side and it doesn't get to dictate the schedule for departure.
Over and out,
PS I know this post is a bit of a repeat of a repeat but the principles of EEA membership are so poorly understood that the public stance of almost every politician and public pronouncement needs to be corrected.