First Minister Nicola Sturgeon’s speech emphasised both her continued opposition to Brexit, especially a withdrawal from the Single Market, and also her intention to keep Scottish independence high on the agenda. These two issues are very much intertwined in a single debate about Scotland’s right to determine its own constitutional future. Sturgeon has consistently argued that it would be ‘democratically unacceptable’ for Scotland to be taken out of the EU, given that 62% of Scots voted Remain.
Another referendum on independence
Sturgeon announced that her government would publish a draft Independence Referendum Bill as early as next week, paving the way for a rerun of the 2014 referendum in which Scots voted 55%-45% to remain in the UK.
Opponents will inevitably argue that this was a decisive victory for the unionist side, and that there is therefore no call for another referendum so soon, not least since that vote was described at the time as a ‘once-in-a-generation decision’. Anticipating this critique, Sturgeon argued today that ‘a UK out of the Single Market will not be the same country that Scotland voted to stay part of in 2014.
In 2014, the UK and Scottish administrations struck a deal on the referendum, and legislation was passed at Westminster to allow Scotland to hold a one-off vote on independence on specific agreed terms. Crucially, this power was not devolved permanently and it has now expired. This would imply that the agreement might be needed once more. If the UK Government is unwilling to play ball and the Scottish Parliament presses ahead nonetheless with a second indyref, the prospect of a legal challenge by the UK Government would loom.
Continued opposition to Brexit
Sturgeon also announced that SNP MPs would vote against the ‘Great Repeal Bill’ that Theresa May will introduce in the next parliamentary session to make Brexit a reality. Sturgeon also promised to ‘assert the right of the Scottish Parliament to have its say’ on Brexit, though her careful phrasing suggests it is not a given that Holyrood will get to vote on the Great Repeal Bill.
As we have said before, bills introduced to the UK Parliament that affect the devolved areas are submitted to the Scottish Parliament for their consent under the Sewel convention. On Brexit, however, the UK Government has not conceded that consent will be required, and a political, procedural and possibly a legal battle over this point lies ahead. The First Minister argued that ‘to deny [the Scottish Parliament] the right to give or withhold its consent on an issue of such magnitude would be an act of constitutional vandalism.’
Everyone must be at the table
Today’s speech clearly signalled that the UK is sailing into stormy constitutional waters. But it should not be assumed that outright conflict is inevitable. Nicola Sturgeon has previously said that she is open to all options, including remaining in the UK, so long as Scotland’s interests are defended.
Later this month, the Prime Minister is due to meet Nicola Sturgeon and the other devolved government heads to discuss Brexit. This summit will be a major test of the willingness of the four governments to work together on this issue, as we have repeatedly advocated since June.
The objective must be to formulate an agreed UK-wide approach to Brexit, so the Prime Minister must go a long way further than treating the devolved governments as mere consultees. They will need to be partners at the table, even if Westminster retains the power to take the final decision. Working in partnership in this way will naturally require the UK Government to compromise on its vision for Brexit, but it could deliver the important prize of preventing the current political spat from escalating into full-blown constitutional crisis.
The Institute for Government will be publishing a briefing later this month on how the UK and devolved governments should work together on Brexit.