Devolving Brexit

What the Scottish Government has proposed in its proposals for a differentiated Brexit settlement may evoke howls of protest from Downing Street but is actually fairly mainstream opinion. 
So now we have it. The Scottish Government document Scotland’s Place in Europe sets out how the country might remain in the EU Single Market in the event of a hard Brexit. 
We can expect some howls of outrage, assertions that what the Scottish Government proposes is legally impossible and, in any case, it’s all a trick to move us to independence by the back door.
But what has been proposed is actually pretty mainstream opinion in Scotland. It is shared by many of those who see themselves as unionists and are committed to remaining part of the UK.
So, “repatriating” to Scotland powers returned from the EU that are not reserved to the UK Parliament under the Scotland Act (farming and fisheries are probably the most prominent on this list) seems a logical step.
And there is a widely understood case for additional devolution that would enable Scotland to shape a different relationship with the EU, including powers over immigration and the right to engage in international agreements that give effect to internal powers, for example in higher education.
There are precedents for all this and more in countries like Canada and Belgium, which appear to manage quite well working that way.
A trickier issue would arise from the proposal that, if the UK as a whole leaves the Single Market, Scotland would stay in by remaining within the European Economic Area, while also maintaining its membership of the UK’s internal market.
Some kind of economic border between Scotland and England would have to be established. The imagery of “border” conjured up in the Scottish constitutional debate is often that of fences and watchtowers; an economic border would be much more a matter of number-plate recognition and online form-filling: So, some additional expense and inconvenience, but not especially intrusive.
Can these proposals fly? That’s a matter less of law than political will. The UK has unusually malleable constitutional arrangements, with the sovereign UK parliament able to do much as it will. The EU too has shown an ability to accommodate all manner of distinctive territorial arrangements. 
Is the political will there? The UK Government has not sounded very accommodating towards special deals (except, perhaps, to Nissan).
But that may be a question of whether, amid the complexities of Brexit, which have clearly been much underestimated, the UK government has the bandwidth to negotiate special arrangements for Scotland alongside all else it has to do. I suspect it doesn’t.
But there may be a solution to that. Give Scotland some set of additional powers, including the power to negotiate in external matters – more or less like those suggested in Scotland’s Place in Europe – and leave it to the Scottish Government to negotiate the details of a deal with the EU itself. That way there’s no need for a political bust-up, and Nicola Sturgeon, not Theresa May, would be responsible for the success, or otherwise, of the outcome.

Comments policy

All comments posted on the site via Disqus are automatically published. Additionally comments are sent to moderators for checking and removal if necessary. We encourage open debate and real time commenting on the website. The Centre on Constitutional Change cannot be held responsible for any content posted by users. Any complaints about comments on the site should be sent to

Charlie Jeffery's picture
post by Charlie Jeffery
University of Edinburgh
22nd December 2016
Filed under:

Latest blogs

  • 19th February 2019

    Over the course of the UK’s preparations for withdrawing from the EU, the issue of the UK’s own internal market has emerged as an issue of concern, and one that has the potentially significant consequences for devolution. Dr Jo Hunt of Cardiff University examines the implications.

  • 12th February 2019

    CCC Fellow Professor Daniel Wincott of Cardiff University examines how Brexit processes have already reshaped territorial politics in the UK and changed its territorial constitution.

  • 7th February 2019

    The future of agriculture policy across the United Kingdom after Brexit is uncertain and risky, according to a new paper by Professor Michael Keating of the Centre on Constitutional Change. Reforms of the EU’s Common Agricultural Policy over recent years have shifted the emphasis from farming to the broader concept of rural policy. As member states have gained more discretion in applying policy, the nations of the UK have also diverged, according to local conditions and preferences.

  • 4th February 2019

    In our latest report for the "Repatriation of Competences: Implications for Devolution" project, Professor Nicola McEwen and Dr Alexandra Remond examine how, in the longer term, Brexit poses significant risks for the climate and energy ambitions of the devolved nations. These include the loss of European Structural and Investment Funds targeted at climate and low carbon energy policies, from which the devolved territories have benefited disproportionately. European Investment Bank loan funding, which has financed high risk renewables projects, especially in Scotland, may also no longer be as accessible, while future access to research and innovation funding remains uncertain. The removal of the EU policy framework, which has incentivised the low carbon ambitions of the devolved nations may also result in lost opportunities.

  • 1st February 2019

    The outcome of the various Commons votes this week left certain only that the Government would either secure an amended deal and put it to a meaningful vote on Wednesday 13 February, or in the overwhelmingly likely absence of this make a further statement that day and table another amendable motion for the following day, the Groundhog Day that may lead to a ‘St Valentine’s Day Massacre’ for one side or the other. Richard Parry assesses the further two-week pause in parliamentary action on Brexit

Read More Posts