Nicola Sturgeon called for a fundamental shift in the devolution settlement when she set out the Scottish government’s proposals for keeping Scotland in the European single market. In what would appear to be a return to a harder line on Scottish independence, she described a second referendum as ‘highly likely’ directly after the UK’s, at least England and Wales’, vote to leave the EU.  She is now warning Theresa May that if the proposals in ‘Scotland’s Place in Europe’, published just before Christmas, are ‘brushed aside’ she will push for another vote on independence.

Scotland voted decisively to remain in the EU while the majority of those who turned out in the UK as a whole voted to leave. The immediate reaction to the 62% to 38% vote in Scotland was to raise the topic of a second independence referendum.  Sturgeon said it was highly likely, so the SNP launched what it described as a ‘national conversation’ about the options. Initially there was a small shift in the opinion polls toward independence. It was assumed a second vote, thus the disintegration of the UK, might follow quite quickly. Since then, however, opinion has drawn back from that initial burst of enthusiasm. The more recent poll at the end of November found that support for independence was at its lowest since the 2014 referendum. That poll showed 44% of Scots supporting independence and 56% opposing it. Only 31% of Scots were saying they wanted their government to campaign for independence within two years and only 60% of 2014 yes voters were in favour of an early campaign. Reality appears to be that while the Brexit vote may have initially appeared to reinforce the case for independence, the economy presents a far more difficult decision for Scots to make than it did in 2014. First Minister Sturgeon appears to have reflected that caution, conscious that she cannot follow the precedent of Alex Salmond and David Cameron as the leader who calls a referendum, then loses it thus has little choice other than to resign.

Part of Europe, part of the UK

So, there is a dilemma for Scotland to overcome with a majority wishing to stay in the EU but no real wish for independence at this point in time. The SNP’s foreign affairs spokesperson, Alex Salmond, underlined the party’s position in an interview on Sunday Politics Scotland, in which he said that the options set out in ‘Scotland’s Place in Europe’ were: “One: keep the UK within the single marketplace; secondly, if that’s not possible, keep Scotland within the single marketplace; and if that doesn’t happen and the UK is unwilling to listen to Scotland’s representations, then it’s very likely there will be an independence referendum within the next two years.” Thus the proposals in the paper amount to a significant set of new powers for Holyrood. Scotland’s first minister is, as outlined, expected to demand the devolution of regulatory powers over goods, trade and business in such a way that the Scottish government hopes would allow them to at least remain in the single market. The core argument leads to a Norway type of framework that would maintain Scotland’s place within the single market should the rest of the UK opt for a hard Brexit. It calls for devolution of immigration powers and employment rights in order to maintain protections for EU nationals and Scots workers that are likely to be lost in the event of Brexit.

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Although May told Sturgeon she was ‘willing to listen to options’ after their initial meeting following her appointment as PM, the first visit outside Westminster by May in fact, the new Chancellor of the Exchequer Philip Hammond  ruled out the possibility of special concessions on trade or immigration when he visited Scotland shortly after. Theresa May has not taken a consistent line though, appearing to agree to involve Scotland in all steps one day, then telling them they have to be part of the ‘decision’ made by the UK electorate the next. This is the political context in which the plan for Scotland to stay within the EU single market after Brexit was devised. The SNP is calculatingly promoting demands that include Scotland’s continued membership of the EU single market in the event of the rest of the UK leaving. The UK government will naturally find that difficult to fulfil. That is, of course, the SNP party line but also the majority view of the Scottish Parliament. This is pushing SNP toward reiterating their case for independence being the only way of resolving the probable impasse. So, the SNP is waiting for something to happen such as Theresa May calling Sturgeon’s bluff. She may assume that the SNP leadership prefers to remain in power rather than take the risk of losing a new referendum. On the other hand, the better course for Westminster would be not to call the Scots government’s bluff but to acknowledge their concerns and the viability of their demands. That is to say, they should recognise Scotland’s legitimate concerns about Brexit. Those concerns are not simply constitutional but pragmatic. Like Northern Ireland, the hard Brexit option would have serious consequences on issues like migration that the Scots economy needs, as too on budgets and EU transfers. May’s government would be foolish not to take Scots proposals seriously because English Tory MPs and the right wing London based media do not care for Scotland and scorn every word Nicola Sturgeon says at the drop of a hat. One important point is overlooked. First minister Sturgeon does not verbally ‘fire from the hip’, but listens to the Scottish Parliament, the SNP and her advisers before she speaks, therefore is rarely speaking in the first person but on behalf of the country she represents. On the other hand, Theresa May has become autocratic and speaks far too spontaneously so that whilst there is no actual voice raised among her own ranks, the ‘cringing’ is conspicuous. Philip Hammond is thus far the only member of her cabinet that has shown this overtly, however that is in regard to UK rather than Scots matters. People throughout the UK have noticed there is something different about Nicola Sturgeon although not necessarily this particular difference. It means that people listen to her rather than the many who believe that May is now talking down to them. In the face of that popularity it seems to be a pointless display of arrogance to dismiss her, which may perhaps be one of the key factors to turning Scots opinion round and bringing independence closer.

Powers to support or defy?

The proposals in the paper are based on the advice of the standing council of experts set up by Sturgeon after the June referendum. They form the basis of the Scottish government’s negotiations in joint ministerial committee meetings for the devolved nations with Westminster early in 2017. They set a precedent for arguments that Northern Ireland and Wales may share and modify within their own situations. Writing about the paper for the Sunday Herald just ahead of its publication, she described the paper as an important moment for Scotland that is “… also a hugely important moment for those living elsewhere on these islands, as we seek to exert a positive influence on the Brexit process for the whole of the UK”. In other words, Scotland is not setting out to unilaterally defy Westminster, but support Northern Ireland whose position is similar and Wales in as far as that is possible. With regard to Scotland going alone, but not necessarily independent, she also said: “…maintaining Scotland’s current position in the European single market will be at the heart of the proposals…. However, if that is not possible, then we will also be outlining ways in which this could be achieved for Scotland even if the rest of the UK leaves. Doing so will involve the devolution of new powers to Edinburgh, regardless of what happens with the single market, there are further powers being repatriated from Brussels which should be devolved to the Scottish parliament. It would add insult to injury if being dragged out of the EU were to be accompanied by a Westminster power grab.” She gave a note of warning for May: “If our interests cannot be protected in this process, or are indeed brushed aside by the UK government, then the people of Scotland should have the option of considering independence. That is why we are consulting on legislation that would allow another independence referendum to take place if necessary.” She accepted that implementation of the proposals would rely on the cooperation of Westminster, thus expects the UK government to take them seriously in line with its clear previous commitments. In other words, they include the ‘solemn vow’ of 16 September 2014, two days before the independence referendum, when David Cameron, Ed Miliband and Nick Clegg united in a vow to deliver ‘faster, safer and better change’ for Scotland if they voted ‘no’. They signed the joint pledge, published on the front page of the Daily Record newspaper, promising to give the Scots people new powers and further devolution that would be acted on immediately.

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Brexit referendum results

Although the Scots government has not factored the vows into the plans, the history of that pledge does bear a great deal of influence on how vigorous it is. In a recent book by Joe Pike, ‘Project Fear’, the author took a close look behind the scenes of the ‘Better Together’ unionist campaign. It includes candid interviews with a number of people involved in the no campaign. The vow was in fact thought up and drafted by the Daily Record in consultation with Gordon Brown. The claim was that Holyrood would be reinforced with extensive new powers following a timetable beginning on 19 September, the day after the referendum, the White Paper by November and draft legislation by January, to be enacted as early as possible in 2015. A YouGov poll at the end of November 2016 showed that only 9% of Scots believe that that vow has been kept, roundly dismissing claims that it has been fulfilled, bearing in mind how much of what was proposed has been dismissed rather than acted on by the responsible Westminster committees. Psychologically this has created a tension between Scotland and England, particularly that May is highly likely to bring that vow to the fore if she is not cautious.

Who has the mandate for power?

Scotland’s Brexit minister, Michael Russell, said just before the paper was launched that the UK government had ‘an overriding obligation’ to take the proposals seriously. Since 62% of the electorate in Scotland voted to remain in the EU, he said it was “the first serious attempt by any government in the UK to address the challenges thrown up by the Brexit vote”. In the introduction to the paper, the second point states that the ‘…response must also acknowledge that leaving the EU, and in particular any proposal to leave the European Single Market and the Customs Union, will result in significant disruption. It will be directly against the democratic wishes of the people of Scotland and will damage our economy, our social fabric and our future prospects. While the referendum resulted in a mandate for England and Wales to leave the EU, that was not the case for Scotland and Northern Ireland, nor did it provide a mandate for the terms of exit.’ It then goes on to describe five points that summarise the country’s interests within the EU: economic interests, solidarity, social protection, democratic interests and influence. The proposals then outline strategy and options in summary form. The three main points are: a) Influencing the overall UK position; b) Exploring differentiated options for Scotland within the UK; and c) Safeguarding and significantly expanding the powers of the Scottish Parliament. The final point is perhaps the most significant in terms of where Scotland sees its future: ‘Leaving the EU must not result in greater concentration of powers at Westminster. Powers to be ‘repatriated’ from Brussels that are already within the current responsibilities of the Scottish Parliament, such as agriculture and fisheries, must remain fully devolved, with decisions on any UK-wide frameworks being for agreement between the UK Government and the Devolved Administrations. In addition, and whatever the outcome of our efforts to keep Scotland in the European Single Market, ‘repatriated’ powers not currently within areas of devolved competence, for example employment and health and safety laws, should be devolved to enable the Scottish Parliament to protect key rights. More generally, the current division of responsibilities between the Scottish Parliament and Westminster must be reconsidered to ensure that the Parliament is able to protect Scotland’s interests and to reflect the change that will be effected to the UK’s constitutional settlement by leaving the EU. This should include consideration of significant new powers to secure any differentiated relationship with Europe.

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The June meeting of the British Irish council

When the paper was published, the UK government’s Scottish secretary, David Mundell, said that they would consider the proposals carefully, if they were “credible and backed up by evidence. (…) I also hope they commit to working closely with us, a team UK approach, to get the best possible deal. That is how we will get the right deal for the whole of the UK – and the right deal for the UK will be the right deal for Scotland”. That is not exactly what Scotland is proposing. So, if the paper is read in detail the tenor of its content is that the Scottish Parliament is making demands that keep options just slightly more open than the SNP as the party that is still demanding Scotland’s continued membership of the EU single market even in the event of the rest of the UK leaving. Whilst only very subtle differences, it does draw a line between government and party policies that on the one hand the UK government cannot claim are one and the same, but in either case will find difficult to fulfil. This will put the SNP in a position to reiterate their case for independence as the only means of overcoming an impasse. However, it is bearing in mind that the SNP is conscious that Scots are worried about economic realities and that they do have 38% of voters who were pro-leave in June. The SNP is patiently waiting for something to happen, thus Theresa May might attempt to call their bluff by assuming that the SNP leadership will prefer to hold on to power in Holyrood rather than run the risk of an uncertain referendum. Nonetheless, the better course of action for the UK government would be not to call their bluff, but to reach two shrewd decisions. The first should be to recognise Scotland’s genuine concerns about Brexit. Those concerns are not simply constitutional, but also practical issues that Westminster would ignore at their peril. The second would be to recognise that good governance means making compromises with the devolved institutions rather than removing powers which might come with Brexit. May early on said she intended to seriously engage with devolved governments but has since broadly speaking contradicted those words. UK leaders, the prime minister particularly, need to recognise that different parts of the union have different interests that absolutely must be respected. To not do so may be their undoing.

Addressing the border of Scotland

Following on from what Scotland is proposing, there is no good reason why Scotland should not keep free movement of EU citizens, even if the rest of the UK puts new immigration controls in place after leaving. After the paper was launched, Charles Grant of the Scottish government’s advisory standing council on Europe and Director of the Centre for European Reform, said to the Financial Times that a special deal for Scotland would be extremely difficult and would have little support from the UK government and whilst “It would be legally possible for Scotland to have control over immigration that would allow freedom of movement, …politically Mrs May would be highly unlikely to go for it”

MP Stephen Gethins, SNP EU spokesman, told BBC Radio 4’s Today programme that: “We want to remain in the single market, something similar to what Norway does and allow us to trade freely with our partners. Freedom of movement is good for the economy, EU nationals contribute so much to our universities, businesses and our society. It also benefits the millions of UK nationals living and working in Europe.” Referring to what UK ministers including Brexit secretary, David Davis, had already suggested, he added: “If Ireland can have a common travel area and the Westminster government doesn’t think that will imperil the economy, why is Scotland different?” A government spokesperson has said that the government will seriously consider the proposals, despite comments by Philip Hammond, who appeared to rule out any special deal on trade or immigration during a visit to Edinburgh early in December.

Whilst also not directly addressing that point, the plan is also an indicator of the concern of devolved governments that Westminster is not taking the twenty-first century structure of the UK and its evolution to a union of countries with own, very specific developments and economies where each takes the best interests of its people seriously rather than be dominated by a remote government that very clearly treats London and SE England as its priorities, thus would pull the other nations down first in the case of a very likely unsuccessful period following Brexit. Before the paper was published Sturgeon said: “Being part of the European single market is vital for Scotland’s future economic wellbeing. And losing our place in the single market would be potentially devastating to our long term prosperity, to jobs, investment and people’s livelihoods. … It would end our current status as part of the world’s biggest free trade area, a market around eight times bigger than the UK’s alone, and would have a profound and long-lasting impact on our national economic standing and our standards of living.” Predictions show that the economy would be expected to take a hit of about £11 billion per year by 2030 and quoted independent forecasts of about 80,000 job losses with cuts in average earnings of up to £2,000 per person. That comes at a time when by remaining in the EU Scotland would expect growth and require in migration of people with specialised skills who are in short supply at home. It would not just be the loss of existing jobs and investment that would be at stake but new investment, funding and jobs which remaining in the single market would ensure.

Thus the ‘Scotland’s Place in Europe’ paper sets out the best arguments for the proposal that Scotland should remain in the single market even if the rest of the UK leaves. How negotiations between Theresa May and Nicola Sturgeon unfold should be very interesting. If the former gets it badly wrong and with the unfulfilled vow to back up Scots discontent, support for a new and successful independence referendum may grow. Poorly chosen words and decisions may hasten what is increasingly looking like the inevitable end of the UK that may well never come about if the UK would stay in the EU, but also allow greater autonomy within its own union. It is a strange situation in which the UK is trying to get out of a union in which part of the population feel uncomfortable yet cannot see discomfiture within itself that could see ‘their’ union fall apart. Scotland is far more conciliatory than on first impression, but is holding an independence gambit close to its heart if there is no compromise. This article sets out to look closer at the resultant relationship between Scotland and Westminster rather than look at the detailed propositions the Scottish government is making, however the paper is available as a pdf file here and is highly recommended reading in order to understand where the arguments and potential differences that may hasten a parting of ways are coming from.

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