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16 Aug 2022

Scotland

What position will an incoming Prime Minister inherit? 

Leaving the European Union has generated significant tensions within the UK Union. Both Scotland and Northern Ireland voted Remain by large majorities, but these votes were crowded out by the UK-wide decision to leave. During Brexit negotiations, both the Scottish and Welsh Governments consistently advocated for as close a relationship with the EU as possible, including membership of the single market. Just as consistently, both were largely ignored.  

Brexit tensions have been compounded by a more assertive approach to the Union. Boris Johnson’s so-called ‘muscular unionism’ was aimed at strengthening the UK government’s role and visibility in devolved territories. Centred on policy areas that fall under the responsibility of the devolved institutions, this approach has prompted repeated accusations that devolution is being undermined. For example, the three devolved Finance ministers combined forces to charge that new powers to spend directly in devolved areas, which the UK government gifted to itself in the controversial United Kingdom Internal Market Act, threaten and reverse the devolution settlements.   

Together, these developments have led to a significant erosion in trust between the UK and devolved governments. In research interviews I have been conducting in preparation for a book, it is not unusual for officials from devolved governments to describe relations with the UK government as the worst they have ever been.   

Both the Welsh and Scottish governments have initiated constitutional reform processes. In Wales, the government set up an independent commission to explore options for a fundamental reform of the UK’s constitutional governance and strengthen Welsh democracy. But the biggest threat to the Union comes from the Scottish Government’s plans to hold a referendum on Scottish independence in October 2023. The SNP was re-elected with a promise to hold such a referendum. The SNP, together with the Scottish Greens, form a pro-independence parliamentary majority in Holyrood.  

At issue, however, is where the legal authority to sanction a referendum lies. This question was never resolved ahead of the 2014 referendum, as the two governments negotiated a temporary transfer of authority to the Scottish Parliament to ensure a legally watertight vote. Both Theresa May and Boris Johnson rejected similar requests. At the First Minister’s request, the Lord Advocate, the Scottish Government’s senior law officer, made a reference to the Supreme Court to test whether the referendum bill prepared by her government is within the Scottish Parliament’s law-making competence.  

Immediate and long-term issues  

The most immediate challenge facing the next Prime Minister will be how to engage with the Supreme Court reference and respond to its outcome. This is a legal process, but one that is loaded with political significance. 

The Court may conclude that the reference is premature and await a further reference from UK law officers once the proposed legislation has passed through parliament. Or, it may take up the request to determine in advance of the legislation where competence lies. 

On the substantive issue, the Court may decide that the Scottish Parliament has competence to legislate to hold a referendum that – the First Minister stated – would be ‘consultative, not self-executing’, designed to ‘ascertain the views of the Scottish people for or against independence’, not to bring independence into effect. In this case, we can expect legislation to follow soon after.  

The new prime minister would then face a choice. Accept the ruling, perhaps even offer a more consensual approach to the process, whilst preparing to support those campaigning against independence in the subsequent referendum? Challenge the legitimacy of the process by encouraging a Unionist boycott? Or use the legal supremacy of the UK parliament to amend the Scotland Act to make any referendum on independence a reserved matter (and therefore not something that the Scottish Parliament could legislate for)?  

If the Court determines, as the UK government maintains, that referendum legislation is beyond the Scottish Parliament’s law-making powers, that would clearly present a huge headache for the SNP Government. But it would put pressure on the UK government too. If ‘now is not the time’, as the two previous prime ministers concluded and all candidates to succeed them have agreed, what would be the circumstances that would merit a process to determine whether Scots still consented to live in union with the rest of the UK?  

Implications of potential policy choices  

Ultimately, the future of the Union will be determined by politics, not law. If there is no legal pathway to an independence referendum, Nicola Sturgeon declared that she would regard the next UK general election as a de facto referendum. Such a scenario might suit the Conservatives in the short-term, as the party most likely to benefit electorally from opposition to independence within Scotland. And so long as Scotland remains divided on independence, there is neither a legal nor a political imperative to respond to any claims of an SNP mandate. But such prolonged constitutional limbo could have a debilitating effect on politics and the Union in the longer term and do little to restore intergovernmental relationships already damaged by Brexit. 

By Nicola McEwen, Senior Fellow at UK in a Changing Europe and Professor of Territorial Politics at the University of Edinburgh. This piece was originally part of the report ‘The Conservative leadership contest: a guide to the policy landscape’ with Full Fact.

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