Last June, Remain secured a 62% vote share in Scotland, with only 38% of voters backing Leave. Support for remaining in the EU was the highest of any nation or region in the UK, with a majority in all 32 local authority counting areas and almost every demographic.
But the choice was not only Scotland’s to make. In her speech to the Conservative Party Conference last autumn, Theresa May insisted, “Because we voted in the referendum as one United Kingdom, we will negotiate as one United Kingdom, and we will leave the European Union as one United Kingdom. There is no opt-out from Brexit.” By contrast, First Minister Nicola Sturgeon insisted, “we didn’t vote to leave – we voted to remain. To be told that we have to leave, regardless, is tantamount to being told that our voice as a nation doesn’t matter.”
Developments since the EU referendum
The morning after the referendum, the first minister announced her intention to find a way to respect the wishes of the Scottish people. She secured the backing of the Scottish Parliament to negotiate with the UK Government, EU institutions and member states to explore options for keeping Scotland in the Single Market. A compromise proposition was set out in the Scottish Government’s paper, Scotland’s Place in Europe.
The first priority was to try to keep the UK within the European Economic Area (EEA) and the EU Customs Union. In the event of the UK Government negotiating withdrawal from these, the paper argued that Scotland should either become a full or associated member of the European Free Trade Association, or have direct association with the EEA.
Clearly, the prospect of Scotland remaining within the Single Market while England and Wales do not raises considerable practical and legal difficulties, not least around the free movement of money, goods, services and people across two separate markets. The Scottish Government argued that these need not be insurmountable, and that innovative solutions could be found. The extent of
the challenge would only become apparent once the UK’s status vis-à-vis the EU was made clearer. If the UK-EU agreement minimises tariffs and non tariff barriers, the practical obstacles in the way of a differentiated Brexit for Scotland would be reduced.
Overcoming the political objections, however, was always going to be difficult. In contrast to Northern Ireland, where the land border with the Republic of Ireland has generated political commitment in Dublin, London and Brussels to find a compromise, there is little sympathy in the UK Government for a differentiated Brexit deal for Scotland. The proposition was formally rejected by the Secretary
of State for Exiting the EU in April.
Brexit also catapulted the independence issue back to the top of the political agenda. The Scottish National Party (SNP) manifesto for the 2016 Scottish Parliament elections sought a mandate to hold a new independence referendum if there was clear demand, or if there was a “significant and material change in the circumstances that prevailed in 2014, such as Scotland being taken out of the EU against our will”. A majority in the Scottish Parliament (consisting of SNP and Green MSPs) backed the Government’s call for a referendum once the terms of Brexit were known.
Yet, the Scottish Parliament lacks the legal authority to hold a referendum similar to the 2014 vote and the UK Government rejected the call, declaring that “now is not the time”. The Scottish Conservatives’electoral gains and the SNP’s losses in the 2017 general election have been widely interpreted as public rejection of an early referendum. The process toward triggering Article 50 had already generated a step-change in formal intergovernmental relations between the UK Government and the devolved governments.
But the Joint Ministerial Committee (European Negotiations) – set up specifically to discuss Brexit – has been a frustrating process for all involved (see also the section on Wales). Having raised expectations that it would provide an avenue for joint agreement on a UK approach prior to the triggering of Article 50, it singularly failed to do so. There was no intergovernmental discussion of the UK Government’s Brexit position prior to either the prime minister’s Lancaster House speech, the publication of the White Paper or the triggering of Article 50. The JMC (EN) was also supposed to provide the devolved governments with oversight of negotiations with the EU.
The JMC process may be difficult to resurrect without a functioning Executive in Northern Ireland. Besides, prior to the general election at least, the UK Government’s appetite for the JMC (EN) had diminished, as had the expectations of the Scottish Government regarding its capacity to uphold its remit.
Both the UK Conservatives and the SNP have been humbled by the general election results, and it is not yet clear how this will affect the relationship between their two governments. The coming year will be dominated by the Brexit negotiations. Despite the first minister’s call for a seat at the table, the Scottish Government’s capacity to influence negotiations is likely to remain limited.
On the other hand, the Scottish Conservative leader, Ruth Davidson, buoyant from her electoral success, seems intent on trying to influence the UK’s Brexit stance.
In parallel, the introduction of the Great Repeal Bill will intensify debate about the repatriation of EU competences and their impact on the devolution settlements (see the section on repatriation). The prime minister has insisted that EU frameworks need to be replaced by UK frameworks to preserve the UK internal market.
This has been perceived by the SNP as an attempt to weaken the powers of the Scottish Parliament by expanding the areas where the Westminster Parliament has exclusive competence. The Scottish Government doesn’t reject the need for common UK frameworks to avoid barriers to trade and mobility. But there will be tensions over who gets to decide what such frameworks would entail, who owns the process of overseeing their implementation, and who wields the power should disputes emerge.
By Nicola McEwen, Research Leader at The UK in a Changing Europe and Professor of Territorial Politics at the University of Edinburgh.