On 23 June, the UK electorate voted by 52-48% to leave the European Union. Membership of the EU is not a devolved matter. The UK is the member state and the UK does not (yet) have a federal system like Australia where constitutional changes must be backed by a majority of voters in a majority of states, as well as of the whole electorate.
According to a traditional reading of the British constitution, 52% in favour of leaving the EU is therefore the only figure that counts. That Scotland and Northern Ireland have a clear pro-Remain majority is of no more significance than the overwhelming vote to stay in the London Borough of Haringey. Westminster, therefore, can press ahead with Brexit.
However, the reality of territorial politics in the UK is more complicated than this. In Scotland, the alternative concept of popular sovereignty has long competed with the doctrine of Westminster supremacy within a unitary UK state. Devolution in 1999 rested upon a ‘Claim of Right’ that asserted ‘the sovereign right of the Scottish people to determine the form of government best suited to their needs’. The 2014 Scottish independence referendum was likewise seen by many as recognition that the UK is a voluntary union that Scotland could choose to leave.
Scotland’s pro-EU vote gave rise to the promise by Nicola Sturgeon, Scotland’s First Minister, ‘to protect Scotland’s relationship with and place in the European Union’. The ambition is clear: to avoid Scotland being dragged out of the EU against the democratic will of the Scottish people.
In principle, there are three ways to fulfil this pledge: for the whole of the UK to remain in the EU; for Scotland to remain within both the UK and EU while England and Wales leave the EU; or for Scotland to leave the UK and remain within (or re-enter) the EU. Does Scotland have the power to achieve any of these outcomes?
1) Can Scotland block Brexit altogether?
At the outset of devolution in 1999, the UK Government established what came to be known as the Sewel or ‘legislative consent’ convention. This states that Westminster normally legislates on devolved matters only with the consent of the Scottish Parliament. Until this year, this was simply convention but in the Scotland Act 2016 it was given legal standing for the first time.
Brexit will inevitably affect devolved matters, since EU law is embedded in the Scottish legal system. Brexit will also affect the powers of the devolved bodies (mainly to extend them in EU-dominated areas such as agriculture). So if and when Westminster brings forward legislation implementing Brexit, the Scottish Parliament would be likely to vote on whether to give consent, subject to the Presiding Officer agreeing that the legislation affected devolved areas. There might also be an attempt to trigger Sewel if, as some lawyers believe is necessary, legislation is brought forward at Westminster to authorise the triggering of Article 50 and the commencement of Brexit negotiations.
The UK Government has adhered closely to Sewel throughout devolution, so it would be a serious matter for Westminster to legislate for Brexit in the face of opposition from the Scottish Parliament so shortly after legislating to recognise the consent convention.
But what would actually happen if this scenario unfolds? There is potential for a legal dispute in which Westminster’s right to legislate in this area without consent is challenged by the Scottish Government, and in this case it would fall to the UK Supreme Court to resolve. However, it is generally thought that the wording of the Scotland Act was phrased deliberately to be symbolically important but judicially non-enforceable, though this has not been tested in the courts.
Scotland therefore probably has no formal veto over Brexit, but having to enforce this via the courts would surely not be in the interests of the UK Government. And the judiciary would itself be reluctant to get drawn into such a politicised dispute. A negotiated compromise would be preferred, so as we have previously argued, the UK Government must involve the Scottish and other devolved governments fully in the Brexit process.
2) Can Scotland remain in the EU and the UK while England and Wales leave?
The Scottish Government has signalled its intent to deal directly with senior European leaders to maintain its place in the EU. Scotland might look to existing precedent in order to secure a special status within the EU. Currently 25 Overseas Countries and Territories are recognised under EU law. For instance, the Isle of Man and Channel Islands are within the EU Customs Union (EUCU) but not the Single Market. Gibraltar is inside the Single Market but not the EUCU. Greenland left the European Communities in 1985 (the only previous territory to do this), but Greenlanders are still EU citizens since they remain part of the Danish Kingdom.
However, these are all small, remote territories dependent on a parent country and unlikely to offer an easily applicable model for Scotland, even if the UK Government was willing to play ball. Furthermore, senior EU leaders, including French President Francois Hollande and Spanish Prime Minister Mariano Rajoy, who does not want to encourage Catalan nationalists, have declared that Scotland must leave the EU together with the rest of the UK.
3) Can Scotland leave the UK to remain in the EU?
If Scotland can neither block Brexit nor remain part of both EU and UK, its other option is to secede from the UK and apply to join as an independent state. A second independence referendum is now ‘highly likely”’ according to Nicola Sturgeon, who has instructed her Civil Service to prepare the necessary legislation.
It is debatable, however, whether the Scottish Parliament has the legislative competence to hold a referendum on independence. The Scotland Act 1998 reserves to Westminster the power to legislate on ‘the Union of the Kingdoms of Scotland and England’. The 2014 referendum was made possible only by a negotiated agreement between the UK and Scottish Governments that has now expired.
A second referendum on Scottish independence would probably therefore require a similar inter-governmental deal, to which the Conservatives at Westminster may be reluctant to agree. If the Scottish Parliament sought to legislate for another indyref regardless, the UK Government could seek to block this through the courts. Politically, however, this would be a risky gambit and one that could trigger a real constitutional crisis, as the competing conceptions of parliamentary and popular sovereignty collide.