I'm overwhelmed by the response to my previous thread on Brexit, so thank you to all. As requested, some thoughts on the (mostly legal) way to join/rejoin the EU. This is not an argument that the UK should but an attempt to inform the debate about how it *might* happen. /1

First, Art 50 no longer applies. The UK left on 31.1.2020 and there is no 'reversing' of this process: the UK is now a third country, even though it is still in a transition period until the end of 2020. /2

So, the process of joining follows Article 49 TEU, which looks like this. There is no special procedure for ex-members to rejoin provided for in either Article 49 or Article 50 TEU. /3

This article does not tell us a great deal about the process of joining or how long it would take. Since an ex-member seeking to rejoin would be unprecedented, we can base some of what we know on the recent enlargement processes - but only so far. /4

Enlargement is a legal process (the incoming state has to adopt all EU law and show adherence to the Treaty values) but is heavily dependent on the politics. No state has the *right* to join, but only to apply. Any current member can veto entry. Usually 10 years are needed. /5

The UK would have to formally apply and be approved as a candidate, joining Albania, Montenegro, North Macedonia, Serbia and Turkey, some of which have been in the process for longer than others. UK as a queue-jumper? (No comment). /6

If the Council of the EU approves the start of accession negotiations, then the fun begins. The Commission issues annual reports on the readiness of a country to join and assume the obligations of membership. E.g, the most recent one for Montenegro: /7 https://ec.europa.eu/neighbourhood-enlargement/sites/near/files/montenegro_report_2020.pdf

The monitoring is technical but also speaks to 'bigger picture' issues including democracy and the rule of law. In theory, the UK should not have too much of a problem but the EU would be entitled to quiz the UK on its respect for international law (as a random example). /8

The longer the UK is outside the EU, the more likely that the legal systems will start to diverge - unless the UK deliberately remains close to EU law (but that seems incompatible with the spirit of Brexit). /9

Iceland is probably the closest example: it applied for membership (2009) and as it is already integrated with the EU in the internal market (EEA), Schengen, Dublin Regulation etc the process went quickly - until a change of govt in 2013 put the process on hold indefinitely. /10

So *in theory* the rejoining process could happen relatively quickly if we are only talking about adopting the law to bring it (back) in line with EU law. But of course much more than that is required, which is where the bigger negotiation issues come in. /11

It seems highly unlikely that the UK would be in a position to argue for any kind of previous opt-out: unless the other MS were very keen on the UK rejoining and prepared to continue the UK's history of exceptional treatment as an EU member. /12

The UK would be expected therefore to work towards membership of Schengen (if that is workable vis-a-vis Ireland) and the euro (though not all the 27 have adopted it, and this is not being enforced for those - Czech Rep, Poland etc - who have not). /13

The UK's budgetary contributions might have to take into account the cost to the other Member States for the Brexit adventure, assuming it has gone badly (and thus why the UK is seeking readmission?). Rebate? Forget it. /14

It goes without saying that the EU27 would need to be convinced that the UK was going to be a committed member. This *might* (although I am unsure about how) lead the UK to try put in place a domestic mechanism to prevent from trying to leave again in the short term. /15

On top of that, the UK would have an uphill struggle to regain the position of influence it had within the institutions whether explicit (allocation of qualified majority voting rights) or implicit (informal influence on the EU's overall direction). /16

And Scotland? The challenges are different. As Art 49 states, membership is open to any 'European state'. So, statehood is a pre-requisite, but it is conceivable that it could be a 'potential candidate' (as Kosovo is) after an Indyref 'yes' and before independence happens. /17

Although the Scottish government might have tried to keep the law in devolved areas in line with EU law from now onwards, an independent Scotland would need to develop (e.g.) monetary, defence & foreign policies and ensure compatibility with the EU. A big task. /18

We know from the example of the breakup of Czechoslovakia that the untangling of Scotland-UK relations would take time, and unless the UK is also (re)applying for EU membership (unlikely) then bilateral issues would need resolving, possibly before EU membership can happen. /19

Top of the list of tricky issues is of course the land border, since Scotland would be in the internal market but England not. And either there are customs posts etc or a creative solution would be need to enable Scotland to join and keep the single market intact. /20

Scotland would not have the UK's political baggage, and there would be much more political will to facilitate membership (though hiccups can occur). Whether Scotland would need a specific referendum on joining the EU is unclear (I think), but .. /21

If the process takes several years post-indy, an accession referendum might be expected. All recent members (except Cyprus and Bulgaria) have done so but, as for Norway (1972, 1994), the population might decide against it. /22 (Source: Mendez and Mendez) https://www.elgaronline.com/view/edcoll/9781788971270/9781788971270.00014.xml

Either way, whilst there are many who hope that the UK could seek to rejoin in the short-term or Scotland could join as soon as possible if independence happens, there are huge (although different) issues associated with both. /23

Just to repeat: this is not an argument either way, but an attempt to set out what I think are the main points to consider and to inform. I might be completely wrong. Thank you for reading this far and I'll leave the last word to Dewsbury's most famous daughter. /END