DUNCAN MacLAREN. Scotland, Brexit and the EU.

Brexit: the Constitutional Angle

I hate to boast of my prescience but my article in this blog in April 2016 warned, in the case of a successful Brexit vote, of the birth of a “Little England searching for a greatness that is delusional in the current world of alliances”. That nightmare has become true. With two acts of political lunacy perpetrated by the English (and I mean English) on one side of the Atlantic and the Americans on the other, we are now facing a global scenario of the absurd you could not make up.  

The concentration of articles on the Great Unknown of Brexit has been on the economic consequences and the relationship with the other twenty-seven EU states. Less has been written on the internal constitutional consequences.

The unelected Prime Minister of the UK, Theresa May, seems blissfully unaware that the UK is no longer a unitary state. She said that her Brexit was neither ‘hard’ (i.e. eschewing membership of the Single Market as that would mean retaining the free movement of people) nor ‘soft’ (i.e. trying hard to negotiate to remain in the Single Market) but an inane “red, white and blue” Brexit, indicating the colours of at least some members of the UK’s self-styled ‘family of nations’. The problem is that Scotland overwhelmingly by 62% and Northern Ireland marginally voted to remain and Wales and England (the latter with 84% of the UK population) voted to leave. The result has been an internal constitutional crisis of huge proportions.

David Marquand, the former Labour MP and academic, insisted in a recent article in ‘The Guardian’ that there could be no Brexit because Britain no longer existed and that it would be “outrageous” if Scotland and Northern Ireland were forced to leave against the wishes of their populaces. He wrote, “What is sauce for the English and Welsh leavers is also sauce for the Scottish and Northern Irish remainers”.

In the case of Northern Ireland, matters have now come to a head with the resignation of Martin McGuinness of Sinn Féin as Deputy First Minister in a power sharing agreement with the First Minister, the Democratic Unionist Party’s (DUP), Arlene Foster. This may trigger new elections at a time of crucial Brexit negotiations, potentially signalling the end of the Good Friday Agreement which brought peace to the troubled province. An additional factor is the border with the Republic of Ireland, important economically and socially for both entities. At the moment, the border with the Republic is open as both countries are part of the EU. If Brexit happens, it is likely that a ‘hard’ border with checkpoints will be in place, especially given the Conservative Party’s obsession with putting migration before anything else such as the economy or even peace.

In Scotland, the Scottish National Party (SNP) has all but three of the Westminster seats and controls the Scottish Parliament, even though it is two seats short of a majority in a proportional electoral system. Polls predict a landslide for the Party in council elections in May 2017. With this as background and a mandate from every Scottish electoral region to remain in the EU, feisty First Minister, Nicola Sturgeon, has vowed to do her utmost to keep Scotland in the Single Market, given the deleterious effect a Brexit will have on the Scottish economy with an estimated haemorrhage of 80,000 jobs and the loss of £2 billion. If that means a second independence referendum because the material circumstances have changed since the first in 2014, so be it. Scotland, with its ageing population, also needs more migrants to bolster economic growth and, in general, those from Eastern Europe have settled down well in the country (we have a shared interest in bad weather and drink) and they contribute substantially to our society and economy through their taxes. We Scots also feel European emotionally whereas being British these days has the tinge of the toxic about it thanks to Farage, Johnson and the other members of the merry band of Brexiteers.

Brexit could undermine the powers of the Scottish Parliament, especially with a far-right Conservative Party in Westminster wanting to erase European Human Rights legislation from our statute books. Not only does the British Government have no mandate from the Scottish people but Scots Law is safeguarded by the Treaty of Union. Touch that and the Union loses the last few threads of legitimacy.

The First Minister and other Cabinet members have held talks directly with EU ministers about Scotland remaining in the EU while still being part of the UK and were well received. Basically, the principle message from the EU is that Scotland could become the successor state to the UK and would be welcomed but it is unlikely that it could be part of the EU while remaining part of the UK. Philippe Lamberts, a Belgian MEP and co-chair of the European Green Party/European Free Alliance, recently said that negotiations could even be extended beyond the 24 month timetable after Article 50, the trigger mechanism for starting the exit negotiations after March this year, had been enacted. This would allow a Scottish independence referendum to take place and usher in the new constitutional settlement of an independent Scotland joining the EU.

It is all complicated stuff which changes like a chameleon in a variegated forest on a daily basis. There are plenty of questions but no definite answers to be given at this stage as it is largely suspected the British negotiating team led by the far-right of English politics has no coherent plan and is internally divided with power tussles going on between the Foreign Office under Boris Johnson and the Brexit Office under David Davis. From the other theatre of the absurd, the US, it seems that Donald Trump is in favour of the EU breaking up – but he could change his mind before his inauguration ceremony. Confused? Join the club. All I can recommend is to watch this space – but don’t expect the UK as a state to survive this tsunami in the Western European political landscape.

Duncan MacLaren is an Adjunct Professor of Australian Catholic University and a PhD candidate in theology at the University of Glasgow.

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