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.
 

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post by Charlie Jeffery
University of Edinburgh
22nd December 2016
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