Douglas-Scott, Sionaidh

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Scotland, Brexit and IndependenceSionaidh Douglas-Scott 2019-11-02T12:46:30The past month has been important for Brexit developments, with UK PrimeMinister Johnson attempting a ‘last minute’ Brexit deal with the EU. In particular,arrangements concerning Northern Ireland have featured prominently. But now, allappears to have been set aside for a December UK general election.However, the UK is composed of four nations, and Scotland’s position in the UKunion, often ignored in the Brexit context, now appears near to ‘tipping point’,especially after First Minister Sturgeon’s recent  confirmation  that Scotland wouldhold an independence referendum in 2020.There are two things to note here. First, Scotland’s desire to remain in theEU, with a 62% vote in favour of remaining in the 2016 EU referendum, andconsequences flowing from this. Second, the apparent increase in support forScottish independence since the first independence referendum in 2014. Thisincrease partly results from support from those preferring an independent Scotlandin the EU to membership of a UK embarked on a ‘hard Brexit’ seen as damagingto Scotland, although not every Scottish ‘remain’ supporter favours an independentScotland.Scotland and BrexitTo take the desire to remain in the EU first: In the 2016 EU referendum, in whichoverall the UK voted by 51.9% to leave the EU, Scotland voted by 62% : 38% toremain. (This was a bigger margin than the 55% of voting Scots voting to remainin the UK in 2014). The EU referendum was non-binding, but the UK Governmentdeclared that it would act on the result. The Scottish government argued that it isundemocratic for Scotland to be driven out of the EU against its will. Notably, therewere no ‘quadruple lock’ requirements in the EU referendum for voter majorities ineach constituent nation of the UK. The UK government declared that the UK wouldleave the EU as one nation, and negotiate withdrawal as one nation. No mentionwas made in the Article 50 letter, issued by the UK Government under the EU treatyto trigger the UK’s EU withdrawal, of any particular arrangements for Scotland, norto the Scottish Government’s proposals for a differentiated solution for Scotland, aspublished in ‘Scotland’s Place in Europe’ (although Northern Ireland was singledout as a special case). This ‘UK-wide’ approach has left little space for Scotland toprotect its interests in EU withdrawal. While recently questioning UK Brexit secretary,Stephen Barclay, in the Westminster Parliament ‘Brexit’ Committee, SNP MP JoannaCherry QC repeatedly asked Barclay to explain Westminster’s engagement with thedevolved governments, adding, ‘it is my suspicion that there has been none’. In this atmosphere, relations between Scotland (both its Government andParliament) and the UK Government have not blossomed. In Westminster, where- 1 -the SNP are the third largest party, the perception is that SNP MPs are too often‘snubbed’ or ignored altogether. The EU Withdrawal Act 2018, a huge and sprawlingpiece of constitutional legislation, was notably adopted without the consent of theScottish Parliament, in breach of the ‘Sewel’ convention (which requires consentof devolved legislatures in UK wide statutes concerning devolved matters) –unconstitutional, if not illegal, behaviour by the UK Government. Matters were nothelped when Prime Minister Johnson stated in the House of Commons that theScottish Parliament would have no role in approving the Withdrawal Agreement Billimplementing his Brexit deal, in spite of the fact that, even by the UK Government’snotes on the Bill, Scottish consent would be needed 16 times (the ScottishGovernment claims it is more). In return, Nicola Sturgeon threatened court action ifScotland were ignored in this way.  Indeed, some hugely important cases regardingBrexit (ie the Wightman case, in which the European Court of Justice confirmedthe UK could unilaterally revoke Article 50, and the Miller/Cherry case, in whichthe UK Supreme Court held Prime Minister Johnson had unlawfully prorogued – iesuspended – Parliament) have originated in the Scottish courts. Britain is not a federal state. It does not have a codified Constitution in whichcomponent nations have legally enforceable protections against constitutionalchange such as Brexit (as is eg the case in the USA or Germany). Instead there isDevolution, a much more delicate and frangible settlement – a mixture of law andconstitutional convention – that staple of the British Constitution. But Brexit hasplaced that Constitution under severe strain.Scotland and independenceAnd so to the second major issue, that of Scottish independence: In Scotland,support for independence reached 50% in October. If the premiership of BorisJohnson and a possible ‘no deal’ Brexit are factored into this, support forindependence takes the lead. As noted pollster, John Curtice, argued, increasingsupport for independence is linked to Brexit, with many remain voters nowsupporting independence.The Scottish Parliament has already drafted referendum legislation (generallysupported by the lead Hollywood committee’s report on it, which did howeversuggest amendment to allow more scrutiny of the question posed in a referendum).On 15 October, at the SNP’s annual conference, Nicola Sturgeon confirmed shewould request ‘a section 30 order’ (under s 30 of the Scotland Act 1998), from theUK Government in order to hold an independence referendum by 2020. This s.30 order, whereby the UK Government consents to transfer the power to hold areferendum to Scottish institutions, is necessary, because UK-wide constitutionalmatters are reserved to the UK under the Devolution settlement. Prior to the 2014independence referendum, (then) Prime Minister Cameron gave consent to sucha s. 30 order which enabled the Scottish Parliament to table legislation for anindependence referendum. (Notably, the Scottish Government has also statedthat an independent Scotland would seek to rejoin the EU – but that is a matter foranother article).- 2 -However, Johnson has made it clear that he would refuse such an order. (Labourleader Corbyn has been more ambivalent). What attitude should Scotland adoptif a s. 30 order were refused? The consequences of holding a referendum, andproclaiming independence in a context viewed as illegal by the central state, havebeen painfully obvious, given the custodial sentences of key Catalonian politicianswho proclaimed independence. Indeed, it was the constitutionality of the 2014Scottish independence referendum, held with the UK government’s blessing,  whichsingled it out from previous Catalonian attempts at independence. Faced with the prospect of a determined Whitehall refusal to grant permission fora referendum, the Scottish Government has not been without further ideas. Onepossibility is to engage the courts again – a suggestion recently made by MichaelRussell, Scotland’s Brexit minister. This could build on recent legal successes led bySNP politicians, including the Cherry litigation and Wightman litigation. However, it seems political tactics will also be in play. Ian Blackford, SNP leader inWestminster, suggested that a s. 30 order request would be made ahead of a (nowdefinite December) UK General Election, and if refused by Johnson, could be castin Scotland as a dictatorial UK conservative government blocking Scots’ right todecide their own future. This sounds dramatic – however, since the EU referendum,the UK government has often cast the ‘will of the people’ and popular sovereigntyand democracy, as crucial principles, necessitating the honouring of a non-bindingreferendum.  Notably, Nicola Sturgeon stressed the importance of popular consent inher recent conference speech: ‘If there is to be a deal, it seems inevitable that it will include a process toallow Northern Ireland to decide if and for how long it will stay aligned to thesingle market and customs union. And that’s exactly as it should be. Butthink about what that will mean. Wales will have voted to leave. Englandwill have voted to leave. Northern Ireland will be given a say over its future.Scotland will be the only country in the UK to be taken out of the EU againstour will and with no say over our future relationship with Europe.’Of course, much depends on the outcome of a December general election. BorisJohnson may not obtain an outright majority. Current polling suggests that, in thegeneral election, the conservative party could lose most of their 13 Scottish MPs inWestminster, with the SNP likely to make substantial gains. A large cohort of SNPMPs in Westminster might prove powerful in a hung Parliament, where Sturgeon hassaid that having another independence ballot would be an automatic condition forgaining the SNP’s support. (But this of course, would not please Scottish remain orleave voters who do not favour independence).But just as important might be the argument also made by Sturgeon at the SNPconference – that ‘seven out of the ten wealthiest developed countries are of asize similar to or smaller than Scotland. From Luxembourg to Ireland from Austriato Switzerland and Norway, countries of our size lead the world. And they tend tobe happier as well.’ In a UK riven by Brexit conflict, and chaos, the scenario of anindependent Scotland in the EU may appear very attractive to many in Scotland.- 3 -But the Brexit discord originated with a referendum. Can we be sure that another(independence) referendum would not generate still more conflict?- 4 -

Scotland, Brexit and Independence

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Scotland, Brexit and Independence

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