Brexit and Devolution: a Quick Primer

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These guys look REALLY pissed

Last night’s Brexit votes and today’s Parliamentary shenanigans have certainly drawn attention to legislative amendments in a way that, quite frankly, I have never seen. Naturally, the Scottish National Party want to be seen to be “standing up for Scotland” (they have to be seen to be doing something, I suppose), but beyond the sphere of a handful of hardened politicos and legal academics, I suspect that there is little appreciation, if any, of what was actually at the core of this debate.

For my first blog in quite a while (I’ve been trying to devote my time to that thing I actually get paid for), I thought, therefore, that I would write a quick primer in order to cut through some of the rhetoric.

What is clause 11?

At present, the Scottish Parliament may not legislate in a way that is incompatible with European Union (EU) Law. Clause 11 of the European Union Withdrawal Bill transposes that prohibition to what will, after we leave the EU, be known as “retained EU Law.” The effect of this, as introduced, was the prevention of any competences whatsoever transferring from Brussels to Holyrood. This was the principal reason for SNP, Labour, Green, and Lib Dem MSPs voting to withhold legislative consent for the Withdrawal Bill in Holyrood.

What did the Lords’ amendment do?

The House of Lords made a number of amendments to the Withdrawal Bill. One such amendment, amendment 26, vastly improved clause 11 of the Withdrawal Bill. The amendment removed the blanket prohibition on legislating for retained EU Law, and replaced it with a clause that was more limited in scope, and would be time limited to a period of two years for UK Ministers to make rules in these areas, and those rules could not have any legal effect after five years. After this period, all EU competences that would otherwise have fallen within the scope of the competences of the Scottish Parliament will transfer automatically to Holyrood.

The Tories voted for this amendment; not being perfect, but being better than the old clause 11, Labour and the Lib Dems abstained; the SNP voted against.

Why did the SNP vote against amending clause 11?

Quite simply, I have no idea. Voting against an amendment doesn’t remove the clause from the Bill, it simply leaves the Bill unamended, meaning the Bill progresses with the original version of clause 11 which the SNP, apparently, so vehemently opposed. By voting against the Lords’ amendment the SNP actually voted FOR the total power grab they purport to oppose.

But the SNP stood up for devolution today, didn’t they?

Quite simply, no. Through today’s pre-planned stunt (Pete Wishart has all-but admitted it was planned) Ian Blackford rendered himself ineligible to vote on today’s crucial amendments, including on continued membership of the single market. SNP MPs had questions on the order paper for PMQs which they were unable to ask as they flounced out of the chamber. Furthermore, having secured a motion to have an emergency debate on devolution (which the Speaker was willing to grant), their walkout meant that there was no one from the SNP to make that application and it was too late for another MP to do so. The SNP’s walkout meant that there was no chance for a debate on Brexit’s impact on devolution.

While I love a bit of Parliamentary theatre (and John Bercow is certainly wrong when he says the public don’t enjoy it), it becomes difficult to justify when it has a material effect on your ability to scrutinise one of the most important pieces of legislation to proceed through Parliament in over 40 years. Furthermore, while Nicola Sturgeon, naturally, has to go along with today’s tomfoolery, it is difficult to imagine a politician who has spent 30 years helping to mould the SNP into a credible party of government approving a stunt that is more befitting of a student union meeting.

The road ahead for Sturgeon is fraught with danger

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For the second year in a row the prize for most spectacular self-inflicted political wound must surely go to the Prime Minister of the day. Despite having piled on support for the Conservative Party, Mrs. May severely underestimated her opponent (as, I am happy to admit, did I), who piled on more votes and so deprived the Prime Minister of her majority, and her authority.

However, Mrs. May is not the only politician who until recently was walking on water to have had a disastrous night on Thursday. In relative terms the biggest vote loser was the SNP, as well as the biggest seat loser in absolute terms. While it is certainly true that the SNP’s starting point was astonishingly high, in only two seats did the SNP start with a majority of less than 3,000. The average SNP majority was 9,966. Save for a handful of seats the SNP’s grip on Scotland looked solid for a generation.

While the expectation for Thursday’s election was that Labour would be squeezed from both sides; it was the SNP, in fact, who lost votes to both left and right. After Thursday’s mauling, the SNP have been deprived of 21 seats. In Angus, and Coatbridge, the Conservatives and Labour, respectively, overturned SNP majorities in excess of 11,000. The SNP’s overall vote share declined by more than 13 percentage points, with the Conservatives, in particular, but also Labour, adding hefty chunks of the vote to their respective piles. The average majority in SNP-held seats now stands at a mere 2,292.

The SNP’s impressive coalition of support in 2015 can broadly be broken down into three categories. The first is voters who aren’t nationalists, but voted SNP either because they had a decent local candidate and/or believed a vote for the Nats did not equate to supporting independence. The second is voters who are nationalists because they believed that Scottish independence was the most credible route to a more left-wing government. The third is existential nationalists, who support independence for Scotland above all else.

Having spectacularly misjudged the public mood in calling for a second independence referendum, Nicola Sturgeon drove support in that first category away from her party and towards the Conservatives in the magnitude of tens, if not hundreds, of thousands. However, provided that this was the only direction in which the SNP were losing support, their grip on Scotland looked safe enough.

Explaining the increase in the Labour vote is somewhat more difficult. In what were once Labour heartlands there was a palpable shift in anti-SNP Labour supporters towards the Tories, believing Ruth Davidson to be the most doughty opponent of a second independence referendum. In many working-class seats across Scotland the Tories more than tripled their vote, and a sizeable chunk of that was from voters who stuck with Labour even in 2015.

At the same time, having spent much of the past two months canvassing there is at least some anecdotal evidence of disquiet about the SNP’s record in government. Kenny Farquharson also posits that among the younger and more radical voters many now no longer see independence as the only road to a more just society. In any event, it appears that the SNP has begun to lose voters within that second category too, which goes some way towards explaining Labour’s increase in support despite discernible losses to the Tories.

Which is why the road ahead for Nicola Sturgeon is more dangerous than ever.

No fewer than 30 of the SNP’s 35 seats require a swing of less than 5% to fall to another party. The vast majority of these seats face towards Labour.

Nicola Sturgeon’s next step is critical. The expectation is that the First Minister does as many of her proxies have been hinting and takes a second independence referendum off the table in an effort to win back some support within the first category of voter. However, in doing so, she runs the risk that working class unionists no longer feel it necessary to lend their support to the Tories and shift their allegiance back to Labour. If even half of the 2017 increase (note, not the total, just the increase) in Tory votes in largely working class seats found its way into Labour’s pile then Labour could expect to pick up a further 11 seats from the SNP.

However, such a strategy also risks alienating those voters whose support for the SNP is motivated by a belief that independence is the most viable route towards a more socialist Scotland. Why on earth would such voters support a party who have just closed off that path to a more socialist Scotland when another, increasingly viable, alternative exists in Jeremy Corbyn?

Furthermore, such a U-turn by the First Minister may also risk losing support to the nationalist fringes. After all, if you can’t rely upon the SNP to push for independence then what’s the point of their very existence? Expect Tommy Sheridan to be licking his lying lips at that one.

It may well be that after a decade in power and with little to offer but a single issue the safest route for the SNP is to press on with the strategy that has cost them almost a third of their support and almost half of their parliamentary seats in two years. Either way, expect the next set of Holyrood elections to be very interesting…

Second Time Around: EU Membership for Scotland is More Difficult, Not Less

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And so here we are again. A second independence referendum now seems more likely a question of when, and not if. Those of us who fed into the debate in 2014 are already preparing to do so again. And while the issues remain remarkably the same, the context has changed entirely.

I did not involve myself in the politics of the 2014 referendum at all. In part because I genuinely didn’t make up my mind until the month before. However, as I also contributed towards the academic debate surrounding independence I did not want to appear too partisan.

In 2014, Dr. Daniel Kenealy and I wrote a paper in the European Law Journal, considering the issues surrounding an independent Scotland’s prospective European Union membership. We argued that, although Scotland’s continued membership of the European Union would not be automatic, it was highly likely that it would continue without interruption.

However, that was then, and this is now. And while the issue of EU membership is likely to feature heavily in the debate on Scottish independence once again, the context has changed considerably.

Timing

Nicola Sturgeon wants to time a referendum such that it will be held towards the end of the UK’s Brexit negotiations, but before the expiration of the two year time limit. This is, purportedly, so that Scotland can have a “genuine” choice between independence with EU membership, or union without.

However, this makes little sense for a number of reasons.  Much has been made of the length of time these negotiations might take. Such negotiations almost always go down to the wire, and Article 50 TEU allows for the possibility of seemingly-indefinite extension.

A cynic might take the view that the real reason behind the proposed timing is to ensure the referendum takes place before people acclimatise to Brexit and realise that the sky hasn’t actually fallen in. It is notable that the proposed timeframe is far shorter than the SNP felt necessary in 2011 to conduct a campaign that fully explored the issues.

Furthermore, the timing makes even less sense if the object of the referendum is to allow voters a “genuine choice”, because no such choice will exist. Unless the First Minister seriously proposes that a new state could be set up and continued membership of the EU negotiated within the space of a month, Scotland WILL be leaving the EU one way or the other. The choice on offer will be between Brexit inside the union and Brexit outside of the union, with potential for EU membership further down the line. This, of itself, poses a whole host of new issues that did not exist in 2014.

Sincere Co-operation

The position of a territory seceding from a state that itself is seceding from the EU is vastly different from a territory seceding from a fully-fledged Member State. In the latter circumstance, that secession would result in a considerable dislocation in the EU’s single market, which its institutions, and the Member States, would be legally obliged to seek to avoid. As Dr. Kenealy and I argued in 2014

“[t]he need to avoid such a dislocation represents not merely a pragmatic reason for the EU to enter negotiations with Scotland immediately following a ‘Yes’ vote but also a legal reason. Article 4 makes clear that if such negative externalities, as would be created by Scottish expulsion, threaten to compromise the attainment of the EU’s goals, then steps must be taken to avoid them. The task of ensuring that the Single Market does not suffer any sudden, sharp dislocation is one that flows from the Treaties. To allow the EU to stumble, unprepared, into such a scenario by refusing to address the issue of an independent Scotland until Independence Day, would be a violation of the principle of sincere cooperation, bordering on a dereliction of duty by the Commission and the Member States.”

This statement, however, clearly does not apply mutatis mutandis to a post-Brexit scenario. The unavoidable dislocation has already taken place. There is no impending hole in the EU’s single market that the institutions, or the Member States are obliged to seek to avoid.

This does not mean that there is no chance that institutions and Member States will not seek to make and independent Scotland’s transition into the EU as smooth as possible. Certainly, post-Brexit, some within the EU – most notably, Guy Verhofstadt – have made such overtones, seemingly to spite the UK. While a desire to stick-it to the UK among officials may well work to Scotland’s advantage, it doesn’t come close to the EU-wide legal obligation to work co-operatively with a seceding Scotland that previously existed.

Good Will

You wouldn’t have thought it by the end of the campaign, but the first independence referendum actually came about in a spirit of remarkably good will. The SNP, to everyone’s surprise, won a majority in the Scottish Parliament elections with a clear manifesto commitment that an SNP majority in the Scottish Parliament would mean an independence referendum. This, of itself, is at odds with the more equivocal commitment contained within the SNP’s 2016 manifesto.

The year following the referendum, the UK Government and the Scottish Government signed the Edinburgh Agreement, under which the Secretary of State would make an order under s.30 of the Scotland Act 1998 to grant Holyrood the legislative competence to hold a referendum that would “deliver a fair test and a decisive expression of the views of people in Scotland and a result that everyone will respect.”

The present circumstances could hardly contrast more starkly. The First Minister and the Prime Minister appear to be engaged in a game of constitutional “chicken”, and it’s not clear which party, if either, will blink first.

In 2014 I argued, quite sincerely, that from the moment Scotland voted ‘Yes’ its closest ally would be the rest of the United Kingdom. This was not out of some misplaced belief in David Cameron’s (or, more likely, his successor’s) magnanimity; but quite simply because it would be in the UK’s interests. With a similar outlook and so many shared interests, Scotland would likely be a close ally of the UK in the European Council and Council of Ministers, much like Ireland. I have little doubt that the UK Government would have gone to bat for Scotland’s continued membership of the EU. In the present circumstances such good will seems unlikely, and insofar is the EU is concerned, utterly fruitless in any event.

Currency

In 2014 I did not think it was at all likely that Scotland would be compelled to join the Euro. This was not  because I believed that Scotland would inherit the UK’s opt-out, but because the SNP had been explicit in their intention to continue using the Pound Sterling, whether in a formal currency union or not. As Scotland would have not have had an independent currency it would not have been possible for Scotland to join the Euro.

However, having been the Yes campaign’s key weakness in 2014, it is now clear that the “use the Pound, one way or the other” approach is unlikely to be used again. Any plans for independence would likely have to include a plan for an independent currency and central bank. Consequently, the main barrier to Scotland’s being compelled to join the Euro evaporates. All new members of the EU (and make no mistake, Scotland will be a new member) are obliged to eventually join the Euro.

While it is the case that it is possible to contrive to not join, by keeping your currency out of ERM II, as Sweden does, it is unlikely that Scotland would be able to get away with this for too long. The SNP may have to prepare itself to be able to sell the prospect of Scotland using three different currencies within the space of a decade.

Conclusion

The First Minister wishes to present the choice she wishes to put before the Scottish people as between independence within in the EU, or Brexit within the UK. Scotland’s continued membership of the EU was one of the key issues of the 2014 independence referendum, and it is likely that it will be once again. However, while the issues may well be the same, the context is vastly different; and this changed context turns Scotland’s continued membership of the EU from likely in 2014, to nearly impossible in 2019.

Scotland will be leaving the EU. The reality is that the only choice on offer is between Brexit within the UK, or without it. Whether we like it or not, this is the new reality to which Scots voters need to become accustomed, and about which the First Minister needs to be honest. Only then will we have a rational debate about Scotland’s future.

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