This is what happens when you make your constitution up as you go – Brexit Part II

The constitutional implications of EU membership were always a little tricky for a country with no written constitution. Unlike the French, the Poles or the Germans who had to make sure that EU treaties were in compliance with local constitutional frameworks, in the UK the “constitution” is simply an aggregation of legal and legislative decisions, overlain by external treaty obligations, that can be changed though further legislative and legal action. In short, there is really only one constitutional imperative, that parliament is sovereign.

Which brings us to Brexit and the reality that referendums in the UK are not legally binding. Just the act of holding a referendum requires legislation; for the Brexit referendum it was The European Union (Referendum) Act 2015; and the results of any referendum can only be advisory. Effecting change based on the results of a referendum requires parliamentary legislation, in this case the voters’ advice to Leave the EU will require parliament to invoke Article 50 of the Treaty on European Union (2007).  Parliament is sovereign, it is not compelled to follow the dictat of an advisory referendum, although of course, it would be very difficult to justify ignoring the stated “will of the people” by either  failing to vote on Article 50, or failing to ratify the decision to Leave by invoking it.

Having said that, the current government and the supporters of the Brexit campaign seem to be in no hurry to go ahead and set the wheels of departure in motion. The morning after the vote David Cameron announced that he’d step down as PM after a suitable period to find a new leader and that he was in no position to invoke Article 50, that would be a job for the new government. Initially he planned to step down in three months, meaning that it would be October before any Brexit negotiations could begin. It does appear that the leadership contest will be solved a little sooner than that, but there is no real sense that the current Conservative government has any idea how to move forward now that the Leave campaign has triumphed.

It is patently obvious that there is no plan for Brexit. It’s bad enough that the government seemingly had no contingency plan for what would happen if they lost, but that particular combination of hubris and negligence is not really surprising in an incumbent administration that thinks it’s going to win the question at hand. It is truly mind-boggling however, that the Brexit camp apparently has no plan either. There were hints during the campaign that this might be the case, there was no real discussion of concrete ideas for post-EU trade alliances, no real discussion of how agricultural, research and regional regeneration subsidies would be replaced; no honest discussion about freedom of movement or the free market. Just a few vague promises about money for the NHS and “taking back control”. Contrast that with the 648 page manifesto that Yes campaign created for the Scottish independence referendum, a detailed accounting of everything from how much revenue is earned from oil royalties to what would happen to the nuclear submarine base at Faslane. While that manifesto couldn’t predict the future, it did at least make it clear that the Yes campaign had thought very seriously about what would happen if they got the result they were campaigning for. With Brexit it is clear that not only does the Leave campaign not know what comes next, they don’t have a team in place to think about what comes next. If they hadn’t make such  hatchet job of campaigning for Remain, you might almost feel sorry for the current government, and the new PM, that has now been left to clean up the mess.

The uneven regional distribution of the Leave vote, of course, has meant that the mess extends far beyond the question of leaving the EU. As the map below shows, the Leave vote was concentrated in England and south/east Wales with Northern Ireland divided (although Remain had a narrow margin) and Scotland unequivocally in the Remain camp. Every single local authority in Scotland voted to Remain and the overall vote split was 63/37.

 

Screen Shot 2016-07-07 at 11.14.32 AM

 

The constitutional relevance of this lies the relationships that both Northern Ireland and Scotland have with the UK.

In the case of Northern Ireland, the Remain votes are largely clustered in the republican areas with Leave, not surprisingly, doing best in the hyper-British Unionist towns and neighborhoods. How much of their Leave vote was tied to Unionist British nationalism and how much of it to an antipathy for the open border with the Republic of Ireland remains to be seen, but there is a real danger that the closing of that border, across which thousands of people shop, commute and socialize on a daily basis is going to damage the nascent peace process.

The republican politicians have already begun to talk of a “border vote”, the local term for a vote on unification with the Republic. I suspect that the demographic and political winds aren’t quite strong enough to pull that off, and there has been some commentary suggesting that the Republic of Ireland wouldn’t accept the North if they voted for unification at this point. That reluctance would largely come from an unwillingness to take on a large disaffected (and armed) minority of unionists who have their own traditions of terrorism, intimidation and organized violence. However, it would be a sticky political wicket for the Republic given that reunification was Article 1 of the Irish constitution for most of the country’s history.

Nonetheless, I think a Northern Ireland breakaway is unlikely in the immediate future, the vote was close and much of the sting of potentially leaving the EU has been drawn for Remain voters by their ability to obtain Irish passports. Anyone born in Northern Ireland has the option of Irish citizenship and in the days after the vote there was such a rush on Irish passport application that Belfast post offices were running out of them and the Irish passport office actually had to ask people to hold off so that they could deal with the regular summer rush. For young people in particular, free movement will be assured through their Irish passports.

Bridge-Street-post-office

Scotland, however, is another matter. On September 18th 2014 Scottish voters rejected independence by a margin of 45/55 and at least part of that upholding of the status quo involved upholding Scotland’s participation in the EU. There had been an avalanche of negative campaigning from the Better Together campaigners, at least some of which had focused on Scotland being shut out of the EU if it left the UK. In the wake of that referendum and the sudden rise in popularity of the SNP (both at Westminster and at home – they hold 56 of Scotland’s 59 Westminster seats and are the third largest political party, by membership, in the UK) the SNP leadership wisely declared in the 2016 Holyrood manifesto that there would be no second referendum on independence within a generation, unless…very important caveat….unless there was a substantial material change in the UK’s political circumstances. One can only assume that pulling out of the EU qualifies as a “substantial material change”.

So not only have the circumstances underlying the independence No vote changed, but they have changed in a way that Scottish voters did not endorse. Now, there are a lot of people claiming that the EU referendum was a “national” referendum and Scotland should just accept the democratic will of the UK electorate and suck it up. You can say that all you like, it won’t make a blind bit of difference.  I woke up on June 24th in a profoundly, deeply shocked and angry country, a country in which almost everyone I spoke to, regardless of their age, or the way they voted in the previous independence referendum, was ready for #indyref2 as it is now known and ready to vote YES.

indyref2

So what has changed? Everyone acknowledges that there has been no substantial change in the basic economic conditions that would militate against independence. In fact oil prices are even lower than they were two years ago. There would still be a question of currency, although the choice now is between shaky € or an even shakier £. EU membership is still not automatic, although arguments that Scotland can’t meet the Copenhagen criteria for membership are patently stupid. However, being involuntarily  removed from the EU changes everything. The sense that it was largely a “little England” vote that drove the Leave campaign has struck a note of significant disquiet in Scotland. Not only is the UK leaving the EU, but it’s doing so under a government that is roundly despised in Scotland and has no political mandate there. It has been twenty years since the Tories could muster more than one MP from Scotland; they are holding their own at Holyrood with 22% of the vote and 31 seats, but in the 2015  Westminster Election they managed a paltry 14.9% of the vote.

_82862376_newmap_chris

In addition,  there are potentially significant social and economic consequences to EU withdrawal, which I will deal with in more detail in another post, but from Scotland’s perspective not only are there likely to be significant losses in agricultural, research and infrastructure subsidies but relying on a Westminster-based Conservative government to make up the difference is a very risky proposition. Conversely, an independent Scotland in the EU, while it would still be a donor state, would have the potential to provide an English-speaking bridgehead for financial and service industries wishing to access the single market.

Constitutionally Scotland’s way forward now is complicated. A discussion of the Scottish Parliament’s ability to scupper Brexit is based on a technicality. The Act of Parliament that authorized the creation of the Scottish government includes a specific clause about Scotland’s laws always conforming to EU treaties. That clause will have to be amended if Brexit takes place. Any amendment has to be ratified by the Scottish MSPs. It is likely that they’ll vote it down (possibly unanimously). In that eventteh incumbent PM (whoever she may be) would have to invoke the sovereignty of Westminster and override the Scotland Act (1999). That would be politically catastrophic, but it’s not like Scotland votes Tory anyway, a Conservative government could afford to get away with it in the short term.

If the Scottish executive opts for a new independence referendum they will almost certainly get a bill through the Scottish parliament, while they are a minority administration the Scottish Greens will back any independence moves. It will then be up to Westminster to approve the terms and conditions of a second vote. It is entirely possible that a Conservative government, less sure of the outcome this time, will refuse to do so. Again the political fall-out would be enormous but, in the short term, survivable. Ironically, the best chance of getting another No vote would be to let #indyref2 go forward as quickly and seamlessly as possible. The more obstacles Westminster erects the more likely it will tip the scales to Yes.

Whatever the timeline, there will almost certainly be another independence vote, certainly within the decade and a Yes result is much more likely this time round. Whether it will be enough of a yes to win remains to be seen but whatever happens it will at least settle the question for a generation or more. Either Scotland will leave the UK and throw it’s lot in with the EU or it will stay as part of an EU-free UK. Short of an economic miracle such as massive, sustained increase in oil prices, independence for Scotland is only an option within the EU.

This all supposes that the UK does actually leave…next and last post will discuss the “what happens next” or “how to make the best of the mess”.

 

 

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