In 2016 the English women’s trio, Fascinating Aida, pleaded with its Edinburgh Fringe Audience (“We’re so sorry Scotland”) for Scotland to deliver the UK from Brexit.
Since then many Scots have united with other Brits to try to do just that. But March 29 is fast approaching and with it the ever-increasing possibility of a stark choice between no UK/EU deal or the deal already agreed but repudiated by the UK Parliament. Is it now time for Scotland to abandon efforts to save the whole UK from Brexit? Are there other options and how do they relate to Scotland’s constitutional future?
As Coreen Brown Swan demonstrated here (“Brexit SNP and Indy”) Scottish opinion on many constitutional issues is unsettled. But the evident uncertainties may mask a degree of consensus on some underlying matters. Most Scots would probably agree that Scotland should have the maximum usable political autonomy. The disagreements are about what would be truly usable. What about: more devolution, independence within the EU, independence outside the EU but with a Customs Union and/or with Single Market membership, Norway-style through the EEA.
How much usable extra autonomy would each of these steps give Scotland? Put differently: what are the limits to the usable autonomy that can realistically be enjoyed by a small European country, situated between the North Atlantic and the North Sea and bounded on the South by a much larger neighbour which is leaving the EU and with which it has been in political union for more than 300 of its 1100 or so years? While those questions lie at the heart of Scotland’s long-term constitutional debate, a Scottish policy to deal with the imminent prospect of Brexit can be devised without the need to answer them.
In Scotland there is little political demand for a cut in immigration; the concept of replacing EU legislation with UK legislation has little resonance and the Court of Justice of the EU (ECJ) is not regarded as any less or more Scottish than the UK Supreme Court. So long as no hard border with England is contemplated, most sections of Scottish opinion would agree that Scotland’s interests require the UK to continue to be in the Customs Union with the EU and that Scotland should have its own immigration policy and the ability to choose to adhere to EU Single Market laws, as they evolve and as interpreted by the ECJ.
In December 2018, the UK Supreme Court held that the provisions of the UK Withdrawal from the European Union (Legal Continuity) (Scotland) Bill 2018 would, with one exception, have been within the powers of the Scottish Parliament had those powers not been restricted, after the Bill’s passage, by an Act of the UK Parliament. (The one exception was a provision that would have required UK Ministers to seek Scottish Parliament consent for certain UK delegated legislation).
The UK could, if it wished, devolve to Scotland sufficient powers to restore most of the 2018 Bill and add powers over immigration and powers to conclude agreements with foreign states and the EU. (Although membership of the EU or the EEA is only open to “states”, recognised as such under international law, the Treaty on the Functioning of the European Union allows the EU to enter into agreements with “third countries” (articles 216, 217 and 218)). Obviously, such powers, once granted, would need to be exercised only after careful debate in the Scottish Parliament, particularly as regards any effect on intra-UK trade. However, if the main purpose of Brexit, apart from reducing immigration, is to let the UK reduce regulation of environmental, social and consumer affairs, it is likely that goods and services compliant with the stricter EU requirements would continue to be acceptable in deregulated England & Wales and Northern Ireland. There is no obvious reason why the suggested extra powers should be unacceptable to most shades of constitutional opinion, at least for the present.
Even if Scotland cannot now save the UK from Brexit, it could still enable the UK Government to proceed with its existing EU deal but at a price. The price might be the immediate conferral on Scotland of the wider devolved powers outlined, failing which the immediate facilitation of IndyRef2, to be held at a time of the Scottish Government’s choosing.