Public discussions about how the UK is to exit from the European Union have been too simplified, and have failed to come up with any solution that recognizes that only England and Wales in fact voted to leave. Brendan O’Leary outlines a way forward where those nations wanting to remain in the EU might be able to do so

O'Leary, Brendan

LSE Research Online

6/27/2016Exit plan: how Scotland and Northern Ireland can remain inthe EUblogs.lse.ac.uk /politicsandpolicy/exit-plan-scotland-northern-ireland/Public discussions about how the UK is to exit from the European Union have been too simplified, and havefailed to come up with any solution that recognizes that only England and Wales in fact voted toleave. Brendan O’Leary outlines a way forward where those nations wanting to remain in the EUmight be able to do so.There has as yet been no Brexit, and there will not be – because there is no such entity as ‘Britain’.There could, however, be a UKexit. But those who insist that a 52-48 vote is good enough to take theentire UK out of the EU would trigger a serious crisis of legitimacy.England and Wales have voted to leave the European Union, but Scotland, Northern Ireland, and Gibraltar havevoted to remain. These differing outcomes have to be the central focus of political attention while we wait for thedebris of broken expectations to settle.First things first: saving the UKBut there is a constitutional compromise that would avoid the genuine prospect that a referendum on Scottishindependence – promoted by the SNP and the Green Party – will lead to the break-up of the union of GreatBritain. The Scots have every right to hold such a referendum, because the terms specified in the SNP’s electionmanifesto have been met: a major material change in circumstances has occurred.The same constitutional compromise could diminish turbulence spilling into Northern Ireland. The same day thatNicola Sturgeon publicly indicated preparations for a second Scottish referendum, the Deputy First Minister ofNorthern Ireland, Martin McGuinness (Sinn Féin), demanded that a poll be held to enable Irish reunification.Sinn Féin has a point. Many in Northern Ireland fear that a UK-wide exit would restore a border across Ireland, andstrip away core components of the 1998 Good Friday Agreement. Does the narrow outcome of a UK-wide1/4referendum automatically over-ride the terms of the Ireland-wide referendums of 1998, and a majority withinNorthern Ireland? It would be perfectly proper to call for a border poll to give people the option of remaining withinthe EU through Irish re-unification – especially if there is no alternative that respects the clear local majoritypreference to remain within the EU. The very same compromise may also weaken the pressure from the Spanishgovernment for the UK to cede sovereignty over Gibraltar.External Association: England and Wales out, Scotland and NI inThe compromise would be that the bulk of the United Kingdom would be outside -‘externally associated’ perhaps –and some of it inside the EU. This change would reflect the fact that the UK is composed of two unions – that ofGreat Britain, and that of Great Britain and Northern Ireland – and that in each of the two unions one partner hasclearly expressed the desire to remain within the EU. All four mandates within the UK would be respected in whatwas an advisory referendum.Is this feasible? Recall first that many UK dependencies – including three members of the British-Irish Council,Jersey, Guernsey and the Isle of Man – are currently not part of the EU. So it’s already the case that sovereignstates, including the UK, have parts of their territories within the EU, and parts of them outside. The terms of thefoundational treaty, the Treaty of Rome, also envisioned associate status: they were designed for the UK.Then consider past precedent. Greenland, part of Denmark, seceded from the EEC, but Denmark remained withinthe EEC. That, of course, had few consequences for power within the EU given Greenland’s small population, andthe components of the UK that remain within the EU would not be entitled to the same rights that currently are heldby the UK as a whole.Negotiating a UK-wide exit is not going to be easy for the next Prime Minister and Cabinet. Indeed, the difficultiesmay precipitate a re-alignment of party politics and a general election.  Westminster must also give effect to theadvisory referendum, and it will have to deliberate over the consequences of imposing an EU departure against themajority will of Scotland and Northern Ireland.The consensual solution would be to negotiate for the secession of England and Wales from the EU, but to allowScotland and Northern Ireland to remain – with MEPs, but without representation on the Council of Ministers, thoughwith the right to have a single shared commissioner.To work, this compromise requires part of the UK to remain within the EU and for those to require representationinside the EU’s institutions. Retaining MEPs in Scotland and Northern Ireland would be easy. They would benumbered as proportional to population and this would have no major implications for the big states.But London ministers could not retain power in the Council of Ministers if the bulk of the UK is outside the EU. Isuggest that the now vacated UK Commissioner’s role could be kept, but the appointment could be rotated betweenScotland and Northern Ireland, in a 3:1 ratio over time, reflecting Scotland’s greater population. The Commissionerwould be nominated by the relevant government and appointed by the UK government. (A judge to serve in theEuropean Court of Justice could be nominated in the same way.) The retention of one Commissioner and theirMEPs would give Scotland and Northern Ireland a say in agenda-setting and law-making. And it would remove anyUK ministerial veto over EU decision-making.The future role of Westminster would be to process EU law that applies to Northern Ireland and Scotland – strictly asan input-output machine – thereby ensuring that Scotland and Northern Ireland have the same EU law, and that theUnion is retained.  It would be up to Westminster to decide which components of EU law will apply to England andWales – a convenience that may be helpful in dealing with the repercussions of what has just occurred.The currency is a reserved Crown power, and the proposed compromise would not lock Scotland and NorthernIreland into the Eurozone. Rather as part of the UK, Scotland and Northern Ireland should inherit the entire UK’sposition under the Maastricht treaty (stay with sterling unless the UK let them adopt the Euro).2/4The benefits and difficulties of this compromise All of Ireland, Scotland, England and Wales would be an internal passport free-zone. However, one negativeconsequence of this compromise would be a hard customs border in the Irish Sea. But that would be better than oneacross the land-mass of Ireland.Another effect would be a hard customs border between Scotland and England. If all of Ireland and Scotland remainin the EU there cannot be a single market in the UK, as defined by the EU, and therefore a customs barrier will haveto exist. But a hard customs border will materialize in any case if a Scottish referendum led to independence.Ireland, North and South, and Scotland could not join the Schengen agreement because that would mean thatEngland and Wales would lose the control over immigration which was emphasized by the leave side in thereferendum. But then, they are not part of Schengen at present, and there is no evidence that a majority in any ofthe three countries wants to be.Would there be any other benefits to this idea, aside from keeping the UK together? UK enterprises could re-locateto EU zones within the UK, which would soften the negative consequences of an entire UK exit. Thesearrangements would leave England and Wales to experiment with whatever policy freedoms they preferred.Citizenship and migration-law would have to be reconsidered, but the ensuing difficulties could be negotiated. Thesematters will be on the table anyway.Other nations and states matterGoing forward, the collective ingratitude and contradictions of nations and states should never be underestimated.Consider, for instance, the vote in Wales, which has been undeniably a net beneficiary of the EU, while its devolvedleadership has already said that it will want to renegotiate the Barnett formula.Some constitutional reconstruction of the UK is therefore necessary. The starting question to be posed toConservative and Labour leaders, and to the UK Parliament, is whether the Welsh and the English believe that thefirst cost of taking back control of their own affairs should be the imposition of control over Scotland and NorthernIreland.The interests of states in making bargains and treaties are rarely based on profound generosity. The divorceagreement that the Leave side will seek to negotiate has to be acceptable to the existing member-states of the EU,or else there will be a chaotic UK departure without agreement.And so the new Cabinet that will negotiate with its European counterparts will soon realize that the Irish and Spanishstates have a veto power over the divorce agreement – and any subsequent ones. Spain and Ireland are not alone.There will be many states with an interest in protecting their stranded ‘diasporas’, not just the flow of capital, goodsand services.And don’t forget about the United States. Anyone who imagines that a UK-US trade agreement will get easily getthrough the American Senate has limited knowledge of US treaty-making. It will not matter whether Clinton or Trumpis in the White House: as Obama has warned, the UK will be “in the back of the queue”. The constitutionalcompromise suggested here will calm the UK’s domestic politics, and give the EU a continuing stake in some of theUK.There is one key lesson from the political science of multi-national states. They are usually not destroyed bysecessionists alone. Rather, the key trigger that leads to the break-up of such states is the unilateral adjustment ofthe terms of the union by the centre, without the consent of its multi-national components.____3/4About the AuthorBrendan O’Leary is Lauder Professor of Political Science at the University of Pennsylvania. Hewas formerly Professor of Government at LSE, where he also did his PhD. Professor O’Leary isInternational Fellow at the Senator Mitchell Institute at the Queen’s University Belfast, a Member ofthe US Council on Foreign Relations, and former Senior Advisor on Power-Sharing in the StandbyTeam of the United Nation’s Mediation Support Unit. He advised governments and parties inNorthern Ireland during the making of the Good Friday Agreement.Image credit: Elionas2, public domain4/4

Exit plan: how Scotland and Northern Ireland can remain in the EU

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