The Scottish Government deserve credit for being the first of the UK administrations (including the UK Government) to put pen to paper to set out their Brexit negotiation priorities. The PM has said in advance she will fully take them into consideration in reaching a view on the UK negotiating position and therein lies a problem for the FM; she will consider but the PM has said it is a UK negotiation.
The Scottish Government are up front in stating that their preferred option is for Scotland to be an independent state within the EU. However in a spirit of seeking "to explore common ground with the UK Government around a solution that would protect Scotland's place in the European Single Market" they set out their proposals. The words "red line" don't feature in describing the Scottish Government proposals. Indy Ref only features obliquely in a reference to the SNP manifesto for the May 2016 election. However it would be naïve to think they are not there in the background.
The first half of the paper sets out a very positive case as to the advantages to the UK, and to Scotland in particular, of being a "member" of the EU Single Market primarily as a member of the EEA and of the EU Customs Union. It considers the potential impact of Brexit on specific geographical and sectoral areas of Scottish life. If the UK decides not to go down the EEA route then they should negotiate on behalf of Scotland to enable Scotland to remain in the EEA probably as an associate member. This would secure Scotland's access to the EU Single Market but also maintain free trade across the UK market. The paper recognises that there are legal, practical, regulatory and other challenges, but with a flexible approach, solutions can be successfully found.
The second half of the paper puts forward answers to some of the questions which the proposals raise and considers legal and political consequentials required to allow the Scottish Government to achieve Single Market membership.
Areas such as agriculture, fisheries and education are currently devolved to Scotland and competence should be returned to the Scottish Parliament. There should be no attempt to re-reserve them. Certain reserved areas currently within Westminster's reserved competence, on return from the EU, should be given to the Scottish Parliament to enable it to protect citizens rights. These areas include employment law, equalities, consumer protection and health and safety legislation. Finally the paper suggests a number of additional areas of competence should be devolved. It suggests:
"……the current division of responsibilities between the Scottish Parliament and Westminster must be reconsidered to reflect the change that will be effected to the UK's constitutional settlement by leaving the EU."
A fairly substantial list of areas of competence are suggested for consideration as part of this reconsideration, including import and export control, immigration, competition law, company law, social security, professional regulation, energy regulation, financial services, telecommunications, postal services and reserved aspects of transport. It is also suggested Scotland would need to take an active part in trade negotiations relating to devolved areas as well as some role in international matters. This is a powerful list!
While the UK Government's position on almost everything connected with the upcoming Brexit negotiations is far from clear at this stage, their current sparse comments suggest, at present, they are unlikely to be enthusiastic about any suggestion that the UK should remain within the EEA or that a separate arrangement is negotiated on behalf of Scotland which would enable it to stay within the EEA with all the complexities that would involve for the UK. It will certainly give the PM and her Brexit Ministers something to think about on their post Christmas lunch walks.
However this is the Season of Good Cheer and potential Dickensian U-turns. Who knows what may be politically acceptable in the early days of 2017? After the unpredictable year we have all been through, predictions seem reckless and fruitless.