Brexit Reflections

Brexit Reflections - Options for Scotland

Published: 29 June 2016
Author: Eve Hepburn

Nicola Sturgeon vowed to explore all options to keep Scotland in the EU. Eve Hepburn asks, what might these options be and how likely are they to be successful?

IN the aftermath of the Brexit vote, Nicola Sturgeon has stated that the prospect of taking Scotland out of the EU against its will is “democratically unacceptable”. The First Minister vowed to explore all options to keep Scotland in the EU. But what might these options be? And how likely are they to be successful?

Here I will try to identify four possible scenarios – amidst myriad possibilities – that would allow Scotland to stay in the EU.

1. The first scenario is that the UK does not exit the EU after all. The process of withdrawing from the EU and disentangling UK laws from 40 years of European legislation and directives, is going to take many years of negotiation. Indeed, David Cameron has left the decision to activate Article 50 – setting a two-year countdown to Brexit – to his successor, whoever that might be, at a later point in time.

During these years of negotiations with Brussels, we may see changes in leadership, especially if an election is called, raising the possibility of the UK Government seeking to steer a different course on the UK’s relations with Europe.

Furthermore, the UK Parliament will be able to vote on any withdrawal deal, and given that there is a current majority in favour of remaining in the EU, they may withhold their consent and/or demand some form of “EU membership lite”, if, of course, that’s even possible given the attitude of EU leaders towards the UK right now. SNP MPs are likely to be active in opposing any withdrawal treaty in the UK Parliament.

2. If UK exit from the European Union is pursued and approved by both the UK Government and a majority in the UK Parliament, then it is arguable that such significant legislation should also be approved by the devolved administrations.

And it is highly likely that a majority in the Scottish Parliament will not approve the Brexit withdrawal deal (given that MSPs are overwhelmingly in favour of EU membership), or in legal terms, Scotland will “withhold legislative consent”. This may or may not put a spanner in the works for Brexit. Under the revised Scotland Act, under section 28, “it is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament.”

While the EU is a reserved matter, European legislation has a huge impact on devolved matters, indeed, by some estimates, 80 per cent of devolved legislation in Scotland is affected by the EU, and thus exiting the EU could be interpreted as changing the nature of the devolution settlement and thus devolved matters.

However, this is a complex legal issue, open to political interpretation, and the UK might decide to ignore the Scottish Parliament’s withholding of consent to withdraw from the UK, or indeed narrowly reject the interpretation that EU membership affects devolved matters. Though it is also possible, given that the majority of MPs favour EU membership, that the need for Scottish consent could be used as a political weapon to defeat any “full withdrawal” treaty at Westminster under the first option above.

3. If Scotland’s attempt to withhold consent on Brexit does not have the desired effect, and the UK Parliament and Government plough on with Brexit regardless, there is a third far more tricky option. Scotland could try to retain EU membership, possibly together with Northern Ireland), by representing the part of the UK that seeks to remain in the EU. Here, the closest model is Greenland, which seceded from the EU in 1985 while still being a part of Denmark.

However, this model may not be easily transplanted to the UK-Scottish situation. Greenland has a different constitutional relationship to Denmark – it is a “federacy”, with much stronger powers to veto any Danish/external attempts to alter its competences. Indeed, Greenland has the right to veto any international treaties that affects its powers. Scotland, at present, does not have such legislative clout. If it were a federacy, then Scotland would have been able to reject more easily Brexit as negatively affecting its competences.

Still, Greenland provides a useful example of only part of a state seceding from the EU, which could form the basis of a legal case to keep Scotland (representing the UK) in the EU.

4. The final option, if all else fails, is for Scotland to hold another referendum on independence. Nicola Sturgeon has confirmed that this option is on the table, given the “significant and material change in circumstances” that a possible Brexit creates. However, there are a few hurdles to achieving the desired outcome. First, there would have to be a large and sustained swing of support in favour of independence.

A poll at the weekend put support for independence at 59 per cent. However, Sturgeon has previously said that she would not seek another indyref until polls consistently showed that 60 per cent of the public wished to leave the UK. It is too early to say whether this level of support will be sustained. Second, the UK Government would have to agree to another indyref, which is probable, but new conditions may be imposed on any future agreement with Edinburgh. And third, the EU would have to approve Scotland’s application to join.

Here it is likely that Scotland would have to apply as a newly independent state under Article 49, though given its previous EU membership and compliance with EU laws, Scotland’s application may be fast-tracked. But this all depends on the view of EU member states. And while a senior German politician recently said he would welcome Scotland in the EU as a new member, other states facing secessionist movements at home – such as Spain, Belgium and Italy – may not be so sympathetic.

Eve Hepburn is a senior lecturer in politics at the University of Edinburgh. This article originally appeared in The National.