Once more unto the breach: A second independence referendum

After months of increasingly-heavy hints, Scotland’s First Minister Nicola Sturgeon yesterday committed to hold a second referendum on Scottish independence. She suggested this should occur between Autumn 2018 and Spring 2019, in what she described as a window of opportunity “when the terms of Brexit are known, but before it is too late to choose our own course”.

The response from Theresa May today was unsurprisingly negative but it is not yet clear whether the UK Government will seek to block a second indyref or delay it until after the Brexit process is complete. Either will spark conflict, and a blame game between Westminster and Holyrood appears sadly inevitable.

Sturgeon will now seek the backing of the Scottish Parliament for her plan. She has the support of the Scottish Greens as well as her SNP colleagues, and therefore appears to have the necessary majority in favour.

The next step will be trickier. Under the terms of the devolution legislation, the Scottish Parliament is generally believed to lack the legal authority to hold a referendum. The UK Parliament would therefore need to agree to devolve this power temporarily, as it did in 2014.

The blame game begins

Sturgeon’s message is that her government sought in good faith to reach a “compromise” over the terms of Brexit, and it was Westminster’s “brick wall of intransigence” that had led her to take this decision.

But her more-in-sorrow-than-anger tone has been greeted with some scepticism. Ever since the UK voted for Brexit while 62% of Scots backed Remain last June, the Scottish Government has been raising expectations that independence was back on the table. With the Brexit process about to start in earnest, a better chance may never arise.

Yesterday’s announcement was therefore a surprise only in terms of tactics and timing. And by successfully ambushing Theresa May in the week expected to be dominated by the triggering of Article 50, Sturgeon demonstrated once more what masterful political tacticians the SNP have become.

What of the Scottish Government’s “compromise” proposition? This was set out in a December 2016 White Paper and called for a differential Brexit in which Scotland could remain in the EU Single Market. The paper was an impressive document, but it implied the effective breakup of the single UK market as the price for securing Scotland’s place in the Single European Market. This was never likely to be acceptable at Westminster.

So what now?

Is it too late for a compromise? In principle, the UK Government could still come back with a counter-offer to the Scottish Government involving additional powers, funding guarantees and rights of involvement in future trade and other international negotiations. There could be recognition that this is a profound ‘constitutional moment’ in the history of the United Kingdom, and that a new settlement between the UK’s family of nations is needed.

More likely, however, is that we will stumble towards another referendum in the next couple of years, and the people of Scotland will then decide which union they wish to remain part of.

The Prime Minister must take responsibility

With all that being said, the Prime Minister must herself take significant responsibility for the perilous state of relations between the nations of the UK. Scotland is now centre stage. But the governance crisis in Northern Ireland is also partly caused by splits over Brexit. The Welsh Government also has serious concerns about the effects of Brexit on its economy, and is calling for a new constitutional settlement.

The Institute for Government has consistently argued since the EU referendum that the UK government must take seriously the risks to the Union and must seek a four-nation consensus on the terms of Brexit. Unfortunately, this does not appear to have happened. The lack of a coherent strategy for managing relations with the devolved governments has contributed to the present crisis.

Shortly after becoming Prime Minister, Theresa May pledged not to commence Brexit negotiations without first securing agreement on a “UK approach and objectives”. But no agreement with any devolved nation was reached before the Prime Minister announced that Article 50 would be triggered before the end of March. Nor was her 12-point plan for Brexit – including exit from the Single Market and Customs Union – the product of agreement between the UK and devolved governments.

The British government can correctly assert that relations between the UK and EU are a non-devolved matter. But pressing ahead unilaterally with hard Brexit having raised expectations of a more consensual approach has made it far easier for the SNP to make the case for independence.

Similarly, the UK Government is guilty of an own goal in giving the impression that it may seek to recentralise aspects of policy areas, such as agriculture and the environment. These are devolved on paper, but in practice most decisions are taken at the EU level. Post-Brexit, the devolved governments expect significant additional autonomy in these areas.

Within Whitehall there is a worry that regulatory divergence would impose costs on trade within the UK, and could make it harder to strike international trade deals. These are valid concerns, but in place of the binary debate about whether powers are held at central or devolved level, there needs to be creative constitutional thinking about how the four nations come together after Brexit to pool their sovereignty and work together in these and other areas.

The UK Government should also have responded formally and thoughtfully to the Scottish Government’s Scotland’s Place in Europe White Paper, as well as to the separate Welsh proposals. As noted, the full-fat version of the Scottish Government’s ‘differential Brexit’ idea never looked politically credible, but this could have been treated as the start of a negotiation.

As it stands, while there has been private dialogue about these issues, the silence in the public domain feeds the narrative that Westminster has dismissed the Scottish and Welsh overtures out of hand.