Brexit: shaking up the Scottish constitutional settlement

For many Brexiters, European integration contradicts the principles of the UK constitution, based as it is on parliamentary sovereignty as the expression of a unitary nation-state. The fact that the locus of sovereignty seems to have moved from Parliament to the putative ‘British people’ does not alter this.

In Scotland, there is another view of the constitution, both in law and politics. From this perspective, the UK is an asymmetrical, plurinational union without a single demos (or people) or shared telos (end point or purpose); the union is continuously negotiated and subject to multiple interpretations across its component parts.

Sovereignty is not unitary, but divided and shared. This fits well with the EU, also a plurinational polity with multiple meanings and no fixed end point.

Scotland’s strong majority for remaining in the EU is thus politically and constitutionally relevant. In the 2014 independence referendum campaign, Scots were told that the only way to secure continued membership of the EU was to vote No. They subsequently voted to Remain within both unions but now discover that this is not possible.

Various options have been rehearsed by the Scottish Government and other voices within Scotland. The Scottish Government declared that its ideal outcome would be for the whole of the UK to stay within the EU. If that were not possible, it argued that the whole of the UK should remain within the single market.

Failing that, it hoped that Scotland could remain in the single market – and has published proposals to this effect. This concept was not pursued by the UK Government, and indeed did not gain much support in the EU either.

Only following the failure of these approaches did the Scottish Government propose a second independence referendum, to allow Scotland to remain in the EU. This would be far from straightforward.

The argument made during the Scottish independence referendum was that both Scotland and the remainder of the UK would be inside the single market and the customs union.

With Scotland in the EU and the rest of the UK outside, Scotland’s border with Europe would be kept open but its border with England (across which it does almost four times as much trade) would be closed.

Nor did the strategy of using EU membership to rekindle the independence debate succeed politically. Scottish electors have never made the link between being independent and being in the EU.

In the 2017 general election, the SNP lost heavily to the Conservatives and, to a lesser extent, Labour among the minority of their supporters who had voted Leave, without compensating gains from Remain supporters. Following this electoral setback, the SNP parked the independence option.

Recently, the SNP has been moving towards an emerging soft-Brexit alliance with the Liberal Democrats, the Green Party, some Labour politicians and a few Conservatives. Soft Brexit may not be their first option. However, it would keep the independence option open and, the softer the Brexit, the easier independence would be in the longer term.

Meanwhile, Brexit has already tested the constitutional settlement. In the aftermath of the 2014 referendum, the unionist parties agreed that Scottish devolution should be entrenched as far as is possible in our unwritten constitution.

The Sewel Convention, according to which Westminster will not ‘normally’ legislate in devolved matters without the consent of the Scottish Parliament, was written into the Scotland Act (2016).

This is understood to include changing the powers of the Scottish Parliament. Yet Brexit has almost immediately undermined the convention: withdrawal from the EU requires changes imposed from Westminster, at a minimum to remove the requirement of the Scottish Parliament to legislate within EU law.

The Supreme Court judgment in the Miller case stipulated that the Government would have to gain parliamentary approval to trigger Article 50 and start the withdrawal process. It added that the consent of devolved legislatures was not needed.

As a strict matter of law, we knew this already but the Supreme Court went further, asserting the absolute sovereignty of Westminster and describing the Sewel Convention as merely ‘political’. That is not consistent with most Scottish understandings of sovereignty.

So, when the EU Withdrawal Bill proposed that competences currently shared between the devolved legislatures and the EU should initially come back to Westminster, this was seen as a matter of principle in Scotland.

In due course, the Scottish Government came to accept that there might have to be shared frameworks in matters like agricultural regulation or the environment and to deal with devolved matters in international trade deals.

These should, however, be negotiated among the nations rather than imposed from above, and the devolved bodies should not lose powers. This view has gained support in both Scotland and Wales and in cross-party reports from both the Scottish Parliament and the House of Lords.

The UK Government has promised to amend the Bill but, at the time of writing, we do not know how.

Whatever happens to the formal constitution and the division of powers, it is likely that the Scottish Government (of whatever party) will seek to maintain a high degree of regulatory alignment with the EU where its devolved powers permit.

It will also seek to remain within European policy networks, as will Scottish local government and civil society. While the UK Government’s position remains that there will not be territorial differences in the application of Brexit, Scotland is likely to remain politically closer to Europe than England for the foreseeable future.

By Professor Michael Keating, senior fellow at The UK in a Changing Europe. You can find a full copy of our Brexit: Local and Devolved Government report here.

The views expressed in this analysis post are those of the authors and not necessarily those of the UK in a Changing Europe initiative.

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