20 December 2016

Today the Scottish Government publishes its proposals for how Scotland can remain in the EU Single Market despite Brexit. In a few weeks, the Supreme Court will deliver a potentially explosive judgment on how the UK Government must legally trigger Article 50. 2016 was a year of constitutional turmoil, but Akash Paun says the drama is far from over. 

What the EU referendum result and its aftermath revealed is that the UK lacks a shared understanding of the rules of the constitutional game. This matters surprisingly little in ordinary times. The normal rules of politics are sufficient to resolve most domestic policy disputes – even over such contested questions as whether Scotland had the right to hold a referendum on independence after 2011, when the SNP won a majority at Holyrood.

It has become apparent, however, that Brexit is less amenable to resolution via Britain’s ‘make do and mend’ approach to the constitution. What we are witnessing is a collision between two mutually incompatible visions of how constitutional changes should be made. Each can trace its lineage back several centuries, but rarely before have the two been placed in direct conflict in this way. We argue consistently that the UK and devolved governments should work together closely on Brexit, but it is clear that a simple solution will be elusive.

Seconds out

In the blue corner, and coming out fighting, is the Scottish Government, which has invoked the idea of an ancient doctrine of Scottish popular sovereignty that predates the 1707 Union with England. Nicola Sturgeon holds that the ‘democratic will’ of the 62% of Scots who backed Remain must be respected, rather than the 52% in the whole UK who voted Leave. Hence today’s call for Scotland to remain a full member of the Single Market, and for Scotland to gain powers over immigration and social policy to facilitate this. The Scottish Parliament should also get to vote on any Brexit-related legislation, and if Scotland’s will is ignored, then a second independence referendum may become necessary.

In the ‘red, white and blue’ corner, hoping to roll with the punches and stay ahead on points, is the UK Government. It adheres to the traditional Westminster perspective that relations with the EU are a matter of foreign policy, so Brexit is for the UK Government alone to negotiate; that Westminster is the sovereign parliament, so it can in any case overrule any opposition at the devolved level; and that the decision to leave the EU was taken by the UK as a whole, so the UK as a whole must leave together.

With opinion polls indicating that independence would be rejected again by Scottish voters, the UK Government might be tempted to call Nicola Sturgeon’s bluff. But the legal as well as political uncertainty hanging over the whole Brexit process makes this a high-risk strategy.

In January the Supreme Court will rule on whether legislation must be passed before Article 50 is triggered, and also whether under the terms of the Sewel Convention, the Scottish Parliament (and potentially the Welsh and Northern Irish bodies too) should be asked for their consent. Whatever the Court decides, it seems unlikely to persuade the losing side to throw in the towel with regard to their overall view of what Brexit should look like and how the UK should take decisions about its constitutional future in or out of the EU.

Further information

The Scottish Government has published its Brexit proposals here.

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