Current public discussions about how the UK is to leave the European Union have been too simplified, and have failed to come up with any solution that recognises that only England and Wales voted to leave. Brendan O’Leary outlines a way forward that might enable those nations of the UK that want to remain in the EU to do so.
There has as yet been no Brexit, and there will not be – because there is no such entity as ‘Britain,’ except as inaccurate shorthand for the multi-national state of the United Kingdom of Great Britain and Northern Ireland. There could, however, be a UKEXIT. But those who insist that a 52-48 vote is good enough to take the entire UK out of the EU would trigger a serious legitimacy crisis.
England and Wales have voted to leave the European Union, but Scotland, Northern Ireland and Gibraltar have voted to remain. These differing outcomes have to be the central focus of political attention while we wait for the debris of broken expectations to settle in the Westminster parliament, among the UK’s allies, and across beached migrants and expatriates. The resolution of leadership crises in the Conservative and Labour parties will proceed amid the shocks reverberating around the world.
There is a constitutional compromise that would avoid the genuine prospect that a referendum on Scottish independence, promoted by the SNP and the Green Party, will lead to the break-up of the union of Great Britain. The Scots have every right to hold such a referendum, because the terms specified in the SNP’s election manifesto have been met—namely a major material change in circumstances.
The same constitutional compromise could diminish the likelihood of turbulence spilling into Northern Ireland, and destabilising its union with Great Britain. The same day that Nicola Sturgeon publicly indicated preparations for a second Scottish referendum, the Deputy First Minister of Northern Ireland, Martin McGuinness of Sinn Féin, demanded that a poll be held, as is possible by law, to enable Irish reunification. Sinn Féin has a point. Many in Northern Ireland fear that a UK exit would restore a hard border across Ireland, and strip away core European components of the Good Friday Agreement of 1998. Does the narrow outcome of a UK-wide referendum automatically over-ride the terms of the Ireland-wide referendums of 1998, and a majority within Northern Ireland? Good Friday should not be superseded by Black Friday. It would be perfectly proper to call for a border poll to give people the option of remaining within the EU through Irish reunification—especially if there is no alternative that respects the clear local majority preference to remain within the EU in Northern Ireland. But there is such an alternative.
The very same compromise may also weaken the pressure from the Spanish government for the UK to cede sovereignty over Gibraltar.
This compromise would build on the idea that each mandate in each territory should be respected, but without breaking up the United Kingdom, or Gibraltar’s ties to the UK.
England and Wales move outside the EU, but Scotland and Northern Ireland stay within it
The compromise would be that the bulk of the UK would be outside—‘externally associated’ perhaps—and some of it inside the EU. This change would reflect the fact that the UK is composed of two unions, that of Great Britain, and that of Great Britain and Northern Ireland, and that in each of the two unions one partner has clearly expressed the desire to remain within the EU. All four mandates within the UK would be respected in what was an advisory referendum.
Is this feasible? Recall first that many UK dependencies—including three members of the British-Irish Council, Jersey, Guernsey and the Isle of Man—are currently not part of the European Union. So it’s already true that sovereign states, including the UK, have parts of their territories subject to their sovereignty within the European Union, and parts of them outside. The terms of the foundational treaty, the Treaty of Rome, also envisioned associate status — they were designed for the UK.
Then consider past precedent. Greenland, part of Denmark, seceded from the EEC, but Denmark remained within the EEC. That, of course, had few consequences for power within the European Union given Greenland’s small population, and the components of the UK that remain within the EU would not be entitled to the same rights that currently are held by the UK as a whole.
Now consider politics going forward. Negotiating UKEXIT is not going to be easy for the next Prime Minister and Cabinet—indeed the difficulties may precipitate a re-alignment of party politics and a general election.
The Westminster parliament must give effect to the advisory referendum, and it will have to deliberate over the consequences of imposing an EU departure against the majority will of Scotland and Northern Ireland.
The consensual solution would be to negotiate for the secession of England and Wales from the EU, but to allow Scotland and Northern Ireland to remain—with MEPs, but without representation on the Council of Ministers, though with the right to have a single shared commissioner.
To work this compromise requires part of the UK to remain within the EU and that would require representation for the two components that remain inside the EU’s institutions—and the UK’s overall consent for the same. Retaining MEPs in Scotland and Northern Ireland would be easy. They would be numbered as currently, proportional to population, and this would have no major implications for the big states.
But London ministers could not retain power in the Council of Ministers if the bulk of the UK is outside the EU. I suggest that the now vacated UK Commissioner’s role could be kept, but the appointment could be rotated between Scotland and Northern Ireland, in a 3: 1 ratio over time, reflecting Scotland’s greater population. The Commissioner would be nominated by the relevant government and appointed by the UK government. (A judge to serve in the European Court of Justice could be nominated in the same way.) The retention of one Commissioner and their MEPs would give Scotland and Northern Ireland a say in agenda-setting and in law-making. And it would remove any UK ministerial veto over EU decision-making.
The future role of the Westminster parliament would be to process EU law that applies to Northern Ireland and Scotland—strictly as an input-output machine—thereby ensuring that Scotland and Northern Ireland have the same EU law, and that the Union is retained. It would be up to Westminster to decide which components of EU law they applied to England and Wales—a convenience that may be helpful in dealing with the repercussions of what has just occurred.
The currency is a reserved Crown power, and the proposed compromise would not lock Scotland and Northern Ireland into the Eurozone. Rather as part of the UK, Scotland and Northern should inherit the entire UK’s position under the Maastricht treaty (namely, they would stay with sterling unless the UK let them go into the Euro). However, Scotland and Northern Ireland would not be able to apply the new terms that Prime Minister recently Cameron negotiated on the supposition that all of the UK would remain in the European Union.
The benefits and difficulties of this compromise
All of Ireland, Scotland, England and Wales would be an internal passport free-zone. However, one negative consequence of this compromise would be a hard customs border in the Irish Sea. But that, I think, would be better than one across the land-mass of Ireland.
Another effect would be a hard customs border between Scotland and England. If all of Ireland and Scotland remain in the EU there cannot be a single market in the UK, as defined by the EU, and therefore a customs barrier will have to exist. But note that a hard customs border will materialise in any case if a Scottish referendum led to independence.
Ireland, North and South, and Scotland could not join the Schengen agreement because that would mean that England and Wales would lose the control over immigration which was emphasised by the leave side in the referendum. But then, they are not part of Schengen at present, and there is no evidence that a majority in any of the three countries wants to be.
Would there be any other benefits to this idea, aside from keeping the UK together, which Unionists of all stripes say they want? Yes, UK enterprises could re-locate to EU zones within the UK, which would soften the negative consequences of an entire UKEXIT. These arrangements would leave England and Wales to experiment with whatever policy freedoms they preferred.
Citizenship and migration-law, would have to be reconsidered, but the ensuing difficulties could be negotiated. These matters will be on the table anyway.
Don’t forget that other nations and states matter
Going forward, the collective ingratitude and contradictions of nations and states should never be underestimated. Consider, for instance, the vote in Wales, which has been undeniably a net beneficiary of the EU. Yet Wales like England certainly has the right to be free, though its devolved leadership has already said that it will want to renegotiate the Barnett formula.
Some constitutional reconstruction of the UK is therefore necessary, and the starting question to be posed to Conservative and Labour leaders, and to the UK Parliament, is whether the Welsh and the English believe that the first cost of taking back control of their own affairs should be the imposition of control over Scotland and Northern Ireland?
The interests of states in making bargains and treaties are rarely based on profound generosity. The divorce agreement that the Leave side will seek to negotiate from the EU has to be acceptable to the existing member-states of the EU—or else there will be a chaotic UK departure without agreement.
Most EU free trade agreements have been what lawyers call ‘mixed agreements’ – that is, they require the consent of the EU institutions and ratification by all of the Member States—because such agreements usually contain rules going outside the scope of trade policy. Therefore, in practice, each member-state has a veto in agreeing a negotiated withdrawal.
The new Westminster cabinet that will negotiate with its European counterparts will soon realize that the Irish and Spanish states have a veto power over the divorce agreement—and any subsequent agreements. Spain and Ireland are not alone. There will be many states with an interest in protecting their stranded ‘diasporas’ (their citizens living and working within the UK), not just the flow of capital, goods and services.
One state that was neglected in the referendum debate was the United States. Anyone who imagines that a UK-US trade agreement will get easily get through the American Senate has limited knowledge of US treaty-making. It will not matter whether President Clinton or President Trump is in the White House. When the new UK cabinet is formed it should recall President Obama’s serious warning that the UK will be in the back of the queue, and that therefore means that the bargaining power of the EU and its member-states will be strong. The constitutional compromise suggested here will calm the UK’s domestic politics, and give the EU a continuing stake in some of the UK.
There is one key lesson from the political science of multi-national states. They are usually not destroyed by secessionists alone. Rather, the key trigger that leads to the break-up of such states is the unilateral adjustment of the terms of the union by the centre, without the consent of its multi-national components.
This post represents the views of the author and not those of the BrexitVote blog, nor the LSE.
Brendan O’Leary is Lauder Professor of Political Science at the University of Pennsylvania. He was formerly Professor of Government at the LSE, where he also did his PhD. Professor O’Leary is International Fellow at the Senator Mitchell Institute at the Queen’s University Belfast, a Member of the US Council on Foreign Relations, and former Senior Advisor on Power-Sharing in the Standby Team of the United Nation’s Mediation Support Unit. He advised governments and parties in Northern Ireland during the making of the Good Friday Agreement.
What exactly is the author aiming for?It is not Brexit, but UKexit.Next we read that each constituent nation, such as they are geographically speaking, has a right to opt out of Brexit/UKexit.The UK is a united kingdom.
Scotland voted to remain part of it.Now it has voted as part of the UK in a referendum.Is it Brexit for the lot, minus any which after the fact wish to secede?Is it UKexit without the UK exiting at all, but only England and Wales?Is this a story to support the wish for the establishment to ignore this pure democratic result?
The EU leadership is known for disregarding democratic outcomes in order to steamroller ahead with EU federalisation.This makes the EU more unpopular.Now there are moves afoot to disregard the results of this referendum in order to have business as usual under the guise of Brexit-light on the part of the Bremains who do not accept the outcome.Some elected representatives in Parliament are now starting to behave as if they were EU apparatchiks.Come the next general election, assuming the country will not be hijacked and the general franchise abolished, do Bremainers propose to disregard the result if it is not to their liking?
The EU issue will not go away, no matter what. Assuming that democracy as a poitical system can be railroaded, as the mood amongst Bremainers indicates, does not bode well for the future.
Reply to Jacob Jonker.
There is no attempt here to override “the democratic result. ” The result, however, does not speak with one voice and it was not ‘pure,’ in any normal dictionary sense.
Your reply assumes that the UK consists of just one people, one nation, and one legal space. That is not so. Legally speaking, the United Kingdom is not one union, but two: the Union of Great Britain, and the Union of Great Britain with Northern Ireland. In each of these unions one partner has voted to remain in the EU. This proposal would allow those parts of the UK to leave the EU which have voted to do so—the largest component, England, and Wales, which are still one legal unit. One of its several advantages is that it weakens the likelihood of a subsequent break up of the UK.
Think, however, what your view means.
Does the vote on Friday permit the Westminster parliament to overturn the devolution settlement with Scotland, and the carefully negotiated settlements with the peoples of Northern Ireland (the plural is deliberate) and the Government of Ireland, settlements which were also endorsed in referendums in 1997 and 1998? If so, why? And if it does, why object to subsequent calls for a future referendum, e.g., on the terms that in due course will be negotiated for what you want to see, a wholesale UKEXIT?
The referendum was advisory — it is up to the UK parliament to interpret the result. My positing suggests that when it does so, it should recall that the UK is not a unitary state, or one nation, and that two of its component parts have voted to remain within the EU.
Well Mr O’Leary, maybe I don’t disagree as much as you appear, to me, to assume.Your explanation makes your position clear, yet the use of Brexit and UKexit are still counter-intuitive.That the UK is constituted thus I never dispute, nor that Scotland and Northern Ireland may decide to go their own way and rejoin the EU on their own account.As it stands, if Brexit goes ahead, the entire UK will be out of the EU.
Where you make it convoluted is your suggestion that the UK did not vote as one.I have followed the campagning on the referendum from the start.I have not once got the impression that Scotland and Ireland were not locked into the result.I might be wrong here, though I don’t think so.What I object to is the implication of your explanation, that Scotland and Northern Ireland did not vote as part of the UK membership of the EU.
My view means that I believe your position is designed to upset what I see as a purely democratic vote.Your position on the union of one and the union of the other is niether here nor there.The UK is the EU member, the UK voted as one on the matter.If any part of the UK wishes to vote again, or use the outcome as per the nation and people in question to secede from the UK and try to join the EU, good luck to them.
Maybe I don’t see your point, maybe you don’t want to see mine.Seeing the nonsense which the Bremain lobby and the government of the UK has delivered to get the people to vote remain, in vain, I do not think any argument from now on is going to make any difference to the future of the UK.The peoples in the UK will fight it out with their various governments through casting their votes as and when they are allowed.What happens when elected representatives continue to disregard majority votes is anybody’s guess, but again, the UK voted as one on UK membership of the EU.Your argument that Scotland and Northern Ireland voted severally as independent members of the EU, or implying such, does not stack up.
Thank you Jacob.
At the risk of repetition, let me reply.
NAMES. My usage is not counterintuitive but factual. The use of BREXIT makes the listener and reader falsely believe there is one British nation. There are indeed British people, and, of course, a British identity, and indeed British subjects, but there is not a state officially called Britain. UKEXIT makes it clear that the referendum took place in the United Kingdom of Great Britain and Northern Ireland (and Gibraltar). The state in question is not a British nation-state, even though many people, like you, may think otherwise. It is a multi-national state, a union-state, but not a unitary state. The vote-count took place, deliberately, within the component constituencies and territories of the Union (and in Gibraltar).
MAJORITIES not a MAJORITY. My proposed compromise would not only reflect the majority preferences in each of the four components of the Union respectively, but would also save the rest of the EU, and Scotland and Northern Ireland, from the difficulties attached to secession (or reunification). And, yes, it would make it subsequently easier for England and Wales to resume EU membership, if that was acceptable to other member-states, and if that is what their peoples and governments seek after subsequent reflection at some future juncture.
IRISH MATTERS. I fear you do not appear to care about the consequences of what may transpire for the elaborate Irish peace process and political settlement brought to fruition in and over Northern Ireland between 1985 and 2007, which presumed EU membership of both sovereign states. Northern Ireland has no right under UK law, and the treaties between the UK and Ireland, to opt-out of the EU, and become an independent state, whereas Scotland does. Northern Ireland does, however, have the right, after an affirmative referendum, to reunify with the rest of Ireland. If it is forced out of the EU by the will of an English and Welsh majority, then currently people think that the only way it can return to the EU is through voting to endorse Irish reunification. My proposal avoids that vista.
The repercussions of restoring a meaningful border across Ireland are only negative — both for previously agreed institutions, which have contributed to a peace process, as well as for the commerce and lives of the citzines of both places.No convincing answer to that difficulty was advanced during the referendum campaign.
CONSTITUTIONAL VALIDITY. Lastly, I am proposing nothing improper within established UK constitutional norms. There is a remain majority in the House of Commons. It has to respond to an advisory (not a binding) referendum, in which there is a divided result across the components of the Union. It would, in my view, be prudent, and democratic, to respond by considering the modalities of permitting Scotland and Northern Ireland to remain within both the European Union and the UK, while implementing the expressed wishes of the peoples of England and Wales to leave the EU. That way several peoples (plural), not just one, can be satisfied. There are intrinsic benefits to such a compromise. It would also prove that the UK is not Greater England, or Greater England & Wales.
A good piece and very interesting but regarding:
“Recall first that many UK dependencies—including three members of the British-Irish Council, Jersey, Guernsey and the Isle of Man—are currently not part of the European Union. So it’s already true that sovereign states, including the UK, have parts of their territories subject to their sovereignty within the European Union, and parts of them outside.”
the Crown Dependencies are not part of the United Kingdom. More here:
https://en.wikipedia.org/wiki/Crown_dependencies
Dear RJC, We do not disagree. It is indeed true that Jersey, Guernsey and the Isle of Man are Crown dependencies. But that legal fact was not denied in the post. In fact, it explains the phrasing used. These entities are subject to the sovereignty of the UK–that is what being a dependency means. For what the Crown means is not some mystic conception, or something dynastically related to the House of Windsor, but rather the Crown as advised by Her Majesty’s Government, i.e., by the UK government of the day. Even if we went on to differ about what the Crown might mean in these cases –and went on to arcane points about the Privy Council — the point stands that these spaces are subject to the sovereignty of the UK’s government, and are not currently within the EU. Inhabitants of these islands would have a very hard time explaining to the rest of the world that they were not within the ambit of the sovereignty of the UK state, especially for external relations. A dependency is a dependency—no? I hope that explains my phrasing. I would like to express my thanks for your generously phrased comment, which has enabled me to expand on what had to be compressed in a phrase.
Excellent idea. It could be applied to London, as well as Scotland and Northern Ireland
Boreders are obviously a problem. To have no controls at all would require both the EU and non-EU parts of the UK to join Schengen. This is quite possible ( Switzerland, although not an EU member, is part of Schengen) but unlikely in the present climate. However, if the UK remains within the single market (as Boris Johnson as advocated today), then there would be no need for customs border controls between the EU and non-EU parts.
are you suggesting that BREXIT should STILL be able to make deals with the EU using Scotland’s extensive fishing resources, renewable energy resources and yes, mineral (oil & gas) resources, and other, when THEY voted to leave and Scotland voted to remain?
Thank you Eric. I am not quite clear about the import of the question, but here is my response.
The general answer within this proposal has to be that if Scotland stays within the EU, and within the UK, then the logical constitutional outcome is to align the powers of the Scottish government with the shared functions exercised by the EU across its member-states (leaving out core exclusive functions of the UK state, such as the currency and defence). The general principle would be that in policy domains that directly affected Scots-EU relations the paramount decision-making would rest with Scotland.
Fishing is one of the EU’s few exclusive powers. It follows from the logic of this proposal that some of the UK would be within the EU’s fishing policy domain, and some without.
Since there will still be a UK Union under this proposal, and UK-wide fiscal (and welfare) policies, Westminster would still raise taxes and royalties from UK-wide resources, but negotiations could take place on these matters. Not all Scots, for reasons I understand, regard mineral and oil & gas resources, as common Union resources.
Really interesting article Brendan. I had a question – apologies if I missed the answer in the text – does your scenario envisage that freedom of movement to work in the EU is still granted to all UK citizens in future, or only to Scotland and NI? And how would this work? Would my UK passport have a “Scotland” note on it somewhere since I was born in Scotland that allows me freedom of movement to work in any other EU member state? Or would everyone still have that right. I am quite intrigued by your general proposal, but it seems to focus on legalities and trading and external/internal borders. I was wondering about the practicialities: it’s easy to know which company is based in Scotland and which company is based in England for EU trading purposes, or to receive EU funding… but what about the people?
Dear David,
Thank you. There were two answers within the post, but therein lie many complexities, and I do not claim to have all the answers. Let me review what I first said above and then make some additional comments. I would warmly welcome improvements to my provisional thoughts below.
1. The proposal envisages a continuing common internal passport zone across Great Britain and all of Ireland (as exists now, and as existed before the EU). So the the states of the UK & Ireland would act jointly as an immigration zone, as at present.
2. The proposal said that ‘Citizenship and migration-law, would have to be reconsidered, but the ensuing difficulties could be negotiated.’ That brief phrasing hid both good and difficult possibilities—on which I welcome further comment, especially from legal scholars.
These include the following.
A. Since the UK and Ireland already recognize one another’s citizens as having full citizenship rights within each other’s borders, after fulfilling residency requirements, we may hope that come what may these provisions would remain, allowing all citizens of these islands, including naturalized citizens, of course, full freedom of movement within them. I do not know the existing rules regarding permanent residents in each jurisdiction. Perhaps others do.
B. What is more difficult to consider is the consequences that would flow from England and Wales deciding to be outside the existing single market, and thereby refusing to accept the free movement of people as part of possible associated member status. There might, after all, be an outright failure to make a departure agreement with the rest of the EU. In these eventualties it is difficult to see how the customs border between Ireland and England & Wales, or between Scotland and England, can be set up without having to be policed by immigration officers. All UK & Irish citizens with valid biometric ID would pass through fast track, but obviously far less conveniently than before, whereas non-UK EU citizens resident in Northern Ireland and Scotland may have to have their passports stamped with ‘entitled to travel but not work’ or some such regrettable restriction of their previous rights. If, however, there were no such EU/non-EU customs and immigration border, then all EU citizens could travel freely from Ireland and Scotland to England and Wales (a possibility which some exponents of “leave” would want to stop). BUT they can’t say they would want to stop that possibility, and then deny, as was suggested in the campaign, that there will have to be such a border across between Northern Ireland and Ireland if all of the UK exits the EU.
I still prefer these difficulties & complexities to those that may flow from coercively imposing a full exit of all the UK, against the will of two of its component parts.
Thank you very much for this contribution and your responses below the line.
Would the following actually be necessary on either the Irish or British internal border:
“immigration officers … passports stamped with ‘entitled to travel but not work’ or some such regrettable restriction of their previous rights”
The entitlement to work in England&Wales would be ‘policed’ by employers, who would need to apply for a visa for any non-UK/Ireland EU citizen they wished to employ and/or such a visa could be applied for from outside the country, as is normal for non-EU citizens working in the EU at present. In contrast, employers in Scotland/NI/Gibraltar would simply know that EU citizens could be employed without a visa.
So there would be no need to deal with the issue of the right to work at the borders within the CTA, and there would consequently be no need for passport controls there. Now, it is of course true that people might choose to enter the country that way and work illegally, but that is anyway true of, e.g. someone arriving on a tourist visa in London (E&W are hardly going to ban tourists from entering the country). But it is important not to conflate the right to travel with the right to work. The latter is a matter for employers, not border guards.
But there would need to be either a different kind of passport for Scottish/NI people or an ID card or insert to be added to the British passport to enable them to enjoy the rights of EU citizens outside Britain/Ireland, so there would need to be some criterion defining who who could claim those citizenships. NI folk could use the Irish passport (I see that even Ian Paisley Jr has no problem with this), but at present there is no equivalent for the Scots.
(In reality I expect Scotland will soon seek at the least such a strong version of Home Rule as to make those quasi-citizenship arrangements necessary anyway, but I accept that you are working out this scenario within the current UK constitutional context.)
“Some constitutional reconstruction of the UK is therefore necessary, and the starting question to be posed to Conservative and Labour leaders, and to the UK Parliament, is whether the Welsh and the English believe that the first cost of taking back control of their own affairs should be the imposition of control over Scotland and Northern Ireland?”
What do you mean by ‘imposition of control over Scotland’?
The slogan of the LEAVE campaign was ‘Take Back Control.’
The point is simple: coercing Scotland and Northern Ireland to leave the EU against the will of their respective majorities is to impose control over them.
I believe that coercing Scotland to exit the European Union against the will of its citizens would be to impose control over them.
The slogan of the Leave campaign was “taking back control.” They must now face the result that they would impose their control over the majorities of the peoples of Scotland and Northern Ireland who wish to remain.
Thanks Brendan. I am quite fascinated by this! I mean, if a Scotsman is resident in England, would have have “entitled to travel but not to work” in other EU member states? You’d end up having a system where someone could ‘claim’ the Scottish part of their ancestry via maternal grandmother, even if they live in England & Wales, just to allow them to travel and seek work in other EU countries. It’s like, I’m a Scot living and working in Finland. Nothing will change for me because I am a legal resident here. The Finns (and, I imagine, every other EU country) wouldn’t want to kick out a perfectly willing tax payer! But if I move from here to look for work in Germany, and an English friend moved at the same time… I’d need something to show in my passport that I am actually Scottish, and (under some of the scenarios you describe) able to seek work because my little bit of the UK is fully part of the EU…
I know you don’t have all the answers. I wasn’t trying to hassle you! I find it thoroughly interesting and really appreciate your expertise and patience replying to me originally. These are some of the many, many complexities that lie ahead for all parties trying to negotiate & navigate the next steps. Kiitos / Thanks.
David. This is already beginning to happen with respect to the Republic of Ireland, where people with irish heritage in the uk are claiming citizenship in the wake of brexit. I do wonder what this would mean for citizenship norms in the UK as a whole, if people were incentivised (through greater access to the eu) to take Scottish or irish citizenship.Would such an open citizenship regime be sustainable ?
Brendan o leary, this is very interesting. I think there’s an obvious need for a serious constitutional solution to the problems posed by resurgent nationalism in the UK. I wonder though about political feasibility. Why would the snp agree to anything short of full independence if it was available? And what does this do to the politics of the gfa? My understanding of the gfa is it’s, in some ways, a fudge. A medium term solution that aims for a generation of quiet to make the national questions less relevant. A solution like this(which seems a fundamental change to the UK constitution ) could have significant (good or bad) domestic political repercussions
Dear Roman,
1. I gather that Gibraltar and Scotland may already be in discussions on ideas resembling the proposal sketched above — see http://www.bbc.co.uk/news/uk-politics-eu-referendum-36639770 — so this is no longer merely ‘academic’ discussion in the insulting sense, but rather one feasible way of responding to the difficulties ahead.
2. If you wish to read my writings on the Good Friday Agreement then go to my web-age at the University of Pennsylvania where there are articles that you can download, and references to other materials that you can find in a library.
I don’t think it’s unfeasible because it’s too “academic”, I just wonder how the politics would play out. I know your stuff on NI (not with any great sophistication, but “explaining northern Ireland” is one of the books i always go back to). I will look into your GFA stuff. My concern is more that these issues can’t be properly resolved without fully satisfying seperatist preferences, which in Scotland might not be a huge problem, but in NI will .
Dear Roman,
That you. Glad you like “Explaining Northern Ireland.”
I think the politics may play out as follows, but here one enters crystal-ball gazing territory.
1. There is a Remain majority within the UK parliament. Some MPs may consider it worth offering a compromise to Scotland, enabling it to stay within the EU, to head off a possible referendum. They may want to avoid the fierce controversy that will be attached to tampering with devolution legislation (which derives its political validity from the referendums of 1997 and 1998). They may also see it as a way of enabling England and Wales to opt back into the EU more easily at a future juncture.
2. Scotland could not be allowed to stay within the EU while Northern Ireland and Gibraltar are obliged to go with England and Wales, and against the will of their respective electorates.
3. The presence of Irish and Spanish veto power may encourage any new London government to think carefully about how its exit plans affect the Good Friday Agreement and Gibraltar.
Well, well.Mr O’Leary, I can be short or long, but I still have the same impression.Considering your other answers to comment as well, from my perspective you are trying to move the goal posts after the Bremainers lost the game.It is as I said.The EU Commissariat ignored the results of referendums as it sees fit.It has a history of prevaricating.Now some commentators and academics are suggesting Brexit did not get voted on.The use of UKexit as opposed to Brexit, which has been in use all along, is merely part of the sleight of hand attempted by you.What the English and Welsh do if this result is ignored or the government pulls the same trick as the EU Commissariat, well, we will see.I see no validity whatever in your arguments now.It is clear what you are about on this.You reject the majority vote, not majorities.It was voted on as the UK in EU.
I do not ‘reject’ the vote. But the referendum is advisory, not binding, and the arguments advanced here are perfectly consistent with UK constitutional convention. This proposal offers a constructive way of dealing with the fact that there is not one voice or one demos in the United Kingdom, and it does not involve setting aside English or Welsh preferences.
Media simplifications, such as BREXIT, were merely one of many in this campaign. UKEXIT is a more accurate understanding, and involves no sleight of hand. This is not the first time in history in which it can be said, ‘What do they know of England, who only England know?”
You have still not answered why this referendum result should supersede that of the two referendums held in the two parts of Ireland in 1998; I suspect that means either you have no answer or you simply do not care.
There is no EU Commissariat — perhaps you meant the Commission.
In any case I suspect readers will not benefit from any further exchanges between us.
No, I do not agree, but best of luck with your 1998 outcome superseding this one.
There are actually a lot of places which have ad hoc arrangements with the EU. Don’t, for instance, forget the Faroe Islands. This is a good summary: https://en.wikipedia.org/wiki/Special_member_state_territories_and_the_European_Union#.C3.85land_Islands
Thanks very much Erik,
Excellent point. As you know these islands, which I visited in 2000, are outside the EU, while Denmark is within it, so it’s another example of possible flexibility in EU member-state relations, with some parts of the sovereign state within and others outside (but associated) the European Union.
There will apparently be an important debate in the Scottish parliament today—we shall see whether Nicola Sturgeon can build cross-party consensus in Scotland for staying within the EU — inside or outside the UK.
Dear Brendan,
An excellent thought though one that requires a good deal of analysis to work out a detailed plan.
(To Jacob: if you think “the people have spoken, the decision is made”, then you need to do some homework on what representative democracy (vs direct) means, especially in its parliamentary form.)
Because nothing has happened yet other than that soundings have been taken. Parliament decides, and until it does, nothing has happened. I think Article 50 even says it can only be triggered by the leaving state once it has gone through the appropriate constitutional processes, or something like that – and we clearly have gone nowhere near doing that under our (written, though scattered around a bit) constitution. It’s debatable how long that would take, and when it would be complete.
I think Brendan’s proposal adds a whole new, and rather beautiful, dimension: if it is right for the UK to “take back control” (as meaningless as that phrase is), how can it be wrong for Scotland and Northern Ireland to do the same? How “I” is “UKIP”, exactly?
I would like to throw London into the mix but I can see the enormity of the complications of dealing with a city rather than a “nation”.
But didn’t I see Plaid Cymru making some points recently about protecting the people of Wales in similar ways…
More later, and thanks for opening this up.
Interesting idea in the main post. I live in N Ireland.
Yet, surely you are describing a one-sided approach. Is your proposal something that the EU as a whole could or would or dare accept? What about Spain and Catalonia; Spain might be very unhappy about the ideas that parts of the UK are “in” and parts are “out”. And your suggestion might be a catalyst behind independence for Catalonia. Hence, would Spain not block your proposal?
What about London? The capital is just as keen as Scotland and N Ireland to remain? How can they be accommodated?
May I thank Shelley Deane for posting the fuller argument, called “The Dalriada Document” –it improves and elaborates the original blog-post. I shall address in subsequent replies any queries that have been recently posed that are not addressed in this full document.
Dear Korhomme,
As you will see if you read the full document — the link is in Shelley Deane’s posting — the EU does not have the same degree of control over the UK’s reconstruction of its its relations with the EU (by allowing Northern Ireland, Scotland and perhaps Gibraltar to remain) as it does if Article 50 is invoked by the UK government.
The Spanish government need not be worried by the proposal. The UK government has to agree to make these arrangements work, and Madrid does not object to constitutionally negotiated agreements between central and regional governments —its standard objection is to unilateral secessionist movements (whence its position on Serbia and Kossova), and that does not apply to the proposal outlined in The Dalriada Document. The proposal requires a constitutional agreement within the UK.
London is not a constituent unit of the United Kingdom; there is no treaty of union between London and the UK, nor any treaty between London and a neighboring government.
Thanks for your responses.
I’ve reread your post here, and read the Dalriada Document. You suggest a constitutional means whereby Scotland and N Ireland could remain within the EU and the UK while England and Wales leave the EU. I’d go a little further back into the history of the British Isles. What we now call England was once a collection of kingdoms, Wessex, Mercia etc, which gradually became a single kingdom. Simultaneously, Wales was subsumed into this entity; the resulting unit of England and Wales was then known as Britain. And after the union with Scotland, the island became Great Britain. Thus, Britain can be taken either as a shorthand for UK, or it could simply mean England (and Wales). I suspect it’s in the English psyche to think of Britain being predominantly England.
How could your suggestion be taken forward? On the BBCTV programme Sunday Politics today (17 June) Nicola Sturgeon was clear that the referendum vote that mattered to her and the SNP was the one in Scotland, not the one in the UK as a whole. She indicated that Scotland was in a strong negotiating position, as the UK’s future proposals would need agreement from all the constituent parts. It was conceded that she didn’t quite have a veto. She and the SNP might look very favourably on what you suggest.
Later in the same programme, James Brokenshire the SoS for N Ireland was clear that it was the vote of the whole UK that was important, not the vote in NI. This was echoed by Arlene Foster of the DUP. (Incidentally, I always recoil from a party or a state which needs to title itself ‘democratic’.) Ms Foster ignored the local vote in NI, repeatedly talking of the UK as a whole vote. Mr Brokenshirer’s assertion might reflect the subconscious idea among the English that only England is important in UK matters. There is no Conservative MP; unlike Scotland, the SoS cannot be a NI representative. Unsurprisingly, Martin McGuinness emphasised the vote in NI. Quite how the NI Executive is going to present a joint position when they are so diametrically apart isn’t at all clear. Your proposal might find favour with Sinn Fein and the other pro-EU parties in the Assembly; the DUP might not accept it. The Assembly is on holiday until September; should there be a discussion and a vote, it’s not clear that the DUP would win. (They might enter a Petition of Concern to shut down any debate.)
This is really interesting. Surely France, a unitary republic, also has some pieces — in fact most — of its territory (the Metropole and the DOMs) that are legally and administratively part of the EU and some (the TOMs) that are not. I think I’m right in saying that EU freedom-of-movement rules allow us (qua non-French EU citizens) to live/work in Martinique but not in Tahiti, which has different (and more restrictive) entry and settlement rules. Although it is clearly customary for a member state’s ‘default’ setting to be ‘most of the national territory within the EU and a few little far-flung bits outside it’ (though Greenland, it should be said is enormous!), there is no compelling reason why this always need be the case. Indeed, if the EU were to agree that the UK was entitled to impose Tahiti-style migration restrictions on England & Wales (but was not requesting that they apply in Scotland, NI and Gib.) then presumably E&W could remain in the Single Market and — as you suggest — the UK would not face a breakup or — more importantly, I suspect — the imposition of customs controls at Carlisle (or a border closure at La Linea). I can’t then see why the ‘integral UK’ couldn’t remain at least an EEA member, with the boil of English frustration at ‘unrestricted EU migration’ suitably lanced, but the other 27 EU states might not be so keen on excluding London and the SE from their citizens’ potential live-and-work destinations. As a result, there would/might have to be a separate (inferior!) category of ‘English & Welsh’ UK passport that did not entitle the holder to full reciprocal free movement rights in the rest of the EU/EEA. Scottish, NI and Gib residents would still hold ‘integral’ UK passports, however, giving them rights commensurate with the way they voted (but they would have to accept ‘unrestricted EU migration’ into their regions. This may sound crazy, but it is only within the last 20 years or so that the UK has, in effect, abolished inferior ‘British Overseas Territory’ passports, which didn’t actually grant their holders right of abode in the UK-in-the-British-Isles. So the idea of a single citizenship bestowing different residence rights is nothing new. If, however, Scotland, Gibraltar and both administrative regions within the island of Ireland (plus the Crown Dependencies) were willing to accept that ‘E&W’ UK passports conferred the same residence/social welfare/political rights as ‘integral’ UK passports (shades of Ireland Act 1948), then you could preserve the border-free CTA into the bargain (and allow European-minded English people an all-but-immediate route to an EEA-recognised passport via a brief period of residence in another part of the UK). And of course you could simply issue all current UK expats ‘integral UK’ passports, which would enable them to preserve their residence and social welfare rights within the EEA. This, surely, is exactly the sort of pragmatic deal that Scottish and Northern Irish Unionists (not to mention Londoners) should be aiming for.
I would ike to see Scoland NI and Eire united as Scotland beaks away from England and Wales. Set Scotland free from London and if they want the EU, they can adopt the Euro or sort out their own currency. Let the Englsh and Welsh move about into these areas with just a passport, no visas and let this be a two way street. However, if we want to move our main residence, we have to apply but with some preferential treatment for those actually born in the UK, We need large customs allowances between our borders or smuggling will be really bad.
The Royal family will be the Royal family of both Scotland and England with Wales, if they want to keep them. Otherwise the Royal Family will go to Scotland, not as their Royal Family when they go to Balmorral.
An alternative would be for the EU to deem that both an independent Scotland and the rest of the UK (rUK) are successor states to the UKGBNI for the purposes of EU membership – Scotland remains a member, the rest of the UK (realistically, there is no prospect of NI leaving the UK, either to become independent or join the rest of Ireland) leaves. Gibraltar can become an overseas territory of Scotland if it wishes, treated in ore or less the same way under the EU treaties as it is now.
The scenario set out would not be possible under the existing EU treaties – each member state is entitled to representation on both the EU Council (the heads of government) and the Council (government ministers). The treaties would either have to be changed to remove the UK’s representation on these bodies completely or to allow for the UK’s representation to be taken up by Scotland/NI on the same 3:1 basis as suggested in the proposal.
It is extremely unlikely that Northern Ireland would join in, regardless of the referendum result. The unionist parties have a clear majority in the Northern Ireland Assembly and would block any attempts to implement this despite the referendum result there.
The best solution to the Northern Ireland question is for the UK (whatever that may consist of upon its departure from the EU) and the EU to agree to keep the border between the republic and Northern Ireland open with Northern Ireland treated as a special part of the UK with a customs union with the EU, as Turkey has, and with a dispensation for passport controls between both parts of Ireland.
Of course, all of this is entirely speculative now. It may end up that the UK joins the EEA and all of these problems disappear. If it does not, it may end up with a set of bilateral treaties with the EU like Switzerland (although they’re in trouble since the Swiss vote to restrict freedom of movement) or that some alternative arrangement which suits all parts of the UK is agreed.
Then there’s the question of when (or whether) the UK will notify the EU under Article 50 of the TEU – it could take years before that happens if at all.
Dear Mark,
Thank you.
The Dalriada Document, available in a link in Shelley Deane’s posting, revises my thoughts on how the UK would be represented in EU institutions through Scotland and Northern Ireland — there you will find answers on the EP, the Commission, the Council of Ministers and the European Council that are all EU-treaty compliant.
Your interpretation of the situation in Northern Ireland is not correct. A majority of the parties in the NI Assembly supported Remain–Sinn Fein, the SDLP, Alliance, Greens, and the UUP. The DUP supported leave—as I believe did People before Profits (a curious misalliance). There is therefore a remain majority in the NI Assembly.
The Dalriada Document is consistent with the preferences of both the majority in the referendum and that in the Assembly. Northern Ireland’s status within the UK is not affected by the proposal, and neither is its status within the EU. So it is the DUP which is currently trying too change the status of NI within the EU on the basis of a minority of the vote.
Dear Prof O’Leary
I was intrigued by your proposal, which came my way late yesterday via a good friend here in Belfast, Frank Costello, and being rather naïve about these blogging matters have such drafted a rather impersonal reply below, as one might reply to a version of this blog as it appears in the newspaper. In any event, I offer it up by way of comment and discussion.
Yours Ciaran White, School of Law, Ulster University
The well-respected political scientist, Professor Brendan O’Leary, has offered a novel suggestion as to how the constitutional conundrum created for NI and Scotland by Brexit might be resolved in his recent piece in Newsweek. And in the fever of the moment I offer my own modest thoughts on this proposal, which intriguingly (and appropriately, for an Irish-born professor) raises the ‘ghost’ of De Valera’s ‘External Association’ concept from the Anglo-Irish Treaty negotiations of 1921/2.
In essence, Professor O’Leary uses the departure of Greenland (part of Denmark) from the EEC in 1985, while Denmark remained within the EU, to construct a model which would see the UK adopt a ‘part in-part out’ approach to the EU.
However, the analogy with Greenland’s secession from the EEC in 1985 doesn’t quite map onto the situation facing Scotland and NI. Greenland had been part of the Danish realm since 1953 and so became subject to the EEC when Denmark joined in 1973. Its semi-autonomous status granted in 1979 seems to have prompted its desire to vote itself out of the EEC in 1982, a ‘divorce’ effected finally in 1985 (which is itself a simple barometer of the length of time it will take for the UK to extract itself from the EU!) That decision seems to be more akin to Scotland voting for independence than it is to England and Wales voting to leave the UK and leaving NI and Scotland ‘behind’. Granted, the analogy does work to the extent that Greenland remained within the Danish realm after leaving the EU in 1985, but only Danish constitutional experts can tell us what that means and whether we can then ‘map’ that situation on to the one facing Scotland and NI. The reliance on this example would be stronger if it had been Denmark that had pushed to leave the EEC/EU and Greenland had wished to remain, and not just because of the differences in size (demographically and economically) or the geographical positions of each of them. Denmark was the Member State that joined the EEC, bringing its Realm with it and it, presumably, was not keen to exercise the power to leave. Here the sovereign Member State that acceded to the EU wishes to leave but non-sovereign regions wish to remain.
The reliance on the (peculiar) constitutional situation of the Channel Islands and the Isle of Man is also interesting but their constitutional status is clearly different to NI and Scotland in that are not part of the UK (and never were), albeit that they allow Her Majesty’s Government (HMG) to represent them in international law matters. As independent entities from the outset they have always been able to decide whether to accept any aspect of international law into their island territories. Indeed, when the Isle of Man was unhappy about the ECtHR’s ruling in Tyrer v UK, on the unlawfulness of ‘birching’ as a judicially imposed punishment, the Tynwald and the Manx Government retaliated by refusing to implement the judgment and declined to abide by the terms of the Convention for a number of years.
And therein lies my chief concern with the constitutional robustness of Prof O Leary’s suggestion: the Channel Islands and the Isle of Man can have this ‘out/in’ status because the constitutional starting point is that they were never part of the UK in the first place. With NI and Scotland, imaginative as his proposal is, that starting position is reversed: both are elements of the UK. Whilst I can see – and share – the pragmatism of his proposal, other legal details need to be considered from a UK constitutional perspective.
Clearly, to date, only sovereign states have acceded to the EU. Consistent with their own constitutional processes, sovereign governments exercise those sovereign powers at EU level. Accommodating NI and Scotland in the manner Prof O’Leary suggests would be useful, but both jurisdictions would have to be given sovereign power to exercise round EU Council tables, for example, in relation to foreign relations, and other more mundane matters which are currently reserved to Westminster, such as aviation. In other words, for the proposal to function some reserved powers would have to be transferred. This might not be a legislatively difficult thing in and of itself, but it would require Westminster to relinquish further power in a way that gives NI and Scotland greater semblance of being independent, if not outright independence. And there is the issue of how the UK could remain together as a unitary state if the devolution of reserved powers was extensive because in that scenario the three constituent elements would all be exercising those powers in an independent way, whether actually or potentially.
Then, there is the issue of how NI and Scotland would deal with any disagreement between them about the exercise of those sovereign powers within the EU, unless the EU agrees to accept them as separate entities each with a vote (and occasionally a veto, depending on the Treaty elements in play) ‘round the Council table. To date, the Westminster Government is the final arbiter of these disputes and represents the UK’s interests at the EU, whether NI or Scotland are content with that or not. If HMG is not at the table, then new rules and processes would have to be developed to address how the ‘rump’ UK spoke as ‘one country’ in the EU.
None of this is intended to pour a bucket of iced water on the O’Leary proposal but to encourage discussion of it and indeed of any other possible proposals. The Brexiteers have no plan, other than suggesting that the Brexit Referendum applies to all the UK and all the UK is out of the EU but will nevertheless get a great deal from the EU to remain connected. And so, the irony is that those of us who were Remain have been left with the task of suggesting legal solutions to the political mess that is Brexit. Time for an academic constitutional conference, with politicians kept outside the door until we can arrive at some models for them to consider?
Dear Ciaran,
Thank you. Many of these comments are answered in the Dalriada Document — the link is available through Shelley Deane’s posting. There you will find details on how NI and Scotland could manage their relations and representation in the EU. Please pass that link on to your academic colleague who may wish to withhold his ice-bucket for a little longer, e.g. in that document I too make clear that I do not think that talk of ‘reverse Greenland’ is helpful, except as a precedent for part of the state being in the EU, and part of it outside.
Very interesting article, Brendan – which I’m sure will begin to attract more attention as people begin to assess what happens post-Brexit.
A few questions I would have are:
(a) What way do you see the EU contributions working for NI and Scotland? Would it be fair, for example, to make Northern Ireland continue being a “net contributor” to the EU, in the manner that the whole UK has historically been within the EU, given its status as a deprived region?
(b) If after negotiating partial-UK secession from the EU, England and Wales opted for EEA membership, within which I believe they would still retain access to the single market, would a customs barrier be required at all with the proposed border with Scotland?
(c) How would maritime borders be affected, e.g. between England and Scotland (which I believe are likely to have been contested in 2014 had there been a Yes vote in the Scottish independence referendum)? Would English fishing boats, for example, be able to fish in Scottish waters, by virtue of being part of the UK, but the opposite for Scottish boats would not be true due to England being outside the EU?
(d) Does the success of this plan hinge primarily on the attitudes of the Northern Irish Assembly, given the geographical nature of the British Isles? The lead party in the NI government, the DUP, actively courted a Brexit vote and the result across NI was only marginally in favour of staying (54/46) in comparison to Scotland. If Northern Ireland were to leave the EU and Scotland remained then we could have two land borders in these islands and an incredibly complex patchwork of maritime borders!
I realise that you don’t have the answers to everything and this is merely a hypothesis at this stage, so please don’t think that I’m asking you unnecessarily difficult questions. It’s all food for thought. Thanks for the article!
Dear Gareth
In answer to (a): I would envisage renegotiation of the UK’s contribution to the EU budget, and would expect in consequence that NI would remain a net beneficiary, while Scotland may be a net contributor. My argument makes no ‘special case’ for either Scotland or Northern Ireland regarding financing of EU membership.
(b) In my proposal — elaborated in The Dalriada Document — available through the link in Shelley Deanne’s posting, the UK does not secede from the EU (England and Wales do), but if England and Wales are outside the EU but in the EEA paying full membership and accepting freedom of movement then you are correct that no customs barrier would apply. BUT, and it’s a big but, those who inaccurately call themselves the BREXITEERS have generally indicated that they are not prepared to pay the price of accepting the four freedoms.
(c) EU fishing policy would apply to NI & Scotland, but not to England and Wales. The question raises complex questions of licensing and quotas which are not within my fields of competence.
(d) The result in favour of remain in Northern Ireland was 56: 44, a higher ratio than the result in favour of leave in England and Wales.
The tacit inference that more should be done to respect a 62: 38 outcome than a 56: 44 outcome is a difficult one to accept. My proposal rests on respecting majority-preferences in each part of the two Unions. Many thanks, Brendan
Arrived late…
This is interesting. In the end, I think that the proposal is pretty much a complete break of the unions between Scotland, Northern Ireland and rump UK, in the event of a hard border becoming necessary. The hard border emphasises the separation and the economic diversion will remove whatever the nations have in common in a reasonably short timescale. I actually think it would make more sense for the nations to join the Euro that persist with current currency arrangements. One possible benefit from this arrangement might be that Scotland and NI, as the current commission insistence of becoming nations, then awaiting their turn to join is circumvented.
I think there is a difficulty with freedom of movement. It would be difficult to admit full freedom to Scottish/NI residents and not permit it to other people living in the UK. Doing this in the presence of a hard border would effectively mean free movement of UK nationals and no reciprocation for the EU (minus Scotland and NI).
It would make more sense to me if the result of the referendum respected the wishes of the electorate in both constituent nations, allowing them to decide where their future best interests lie (again, given how the economies work presently, this is no easy matter), when arrangements for Brexit become properly defined. The alternative that you put forward puts added complication (I think) on an already complex situation, where the benefits to all involved parties are not clear.
See the Dalriada Document which I have elaborated —you may find it at the link in Shelley Deane’s posting. That is where you will find a discussion of citizenship and migration.
Complexity cuts both ways. The majority in the UK-as-a-while is being said to favour taking the entire UK out of the EU, against the will of two of its constituent components, and to ahem the right to do so on a 52-48 advisory referendum. The complexities that arise from a possible secession by Scotland and the breaking of treaties with Ireland are avoided by my proposal.
Dear Brendan,
You say “The future role of the Westminster parliament would be to process EU law that applies to Northern Ireland and Scotland—strictly as an input-output machine—thereby ensuring that Scotland and Northern Ireland have the same EU law, and that the Union is retained. It would be up to Westminster to decide which components of EU law they applied to England and Wales—a convenience that may be helpful in dealing with the repercussions of what has just occurred.”
Sorry, but this seems to be based on a misunderstanding of what the common market is. You also say that there should be no border within the UK, which would mean that England and Wales should be part of the common market, but the regulations and the common market cannot be separated because the common market means a lot more than just no tariffs for trans-border trade. It also means common standards. For example, the European Medicines Agency decides about market access for medicines in the EU based on EU regulation. So the Westminster parliament could not arbitrarily decide which components of EU law they applied to England and Wales without risking to move England and Wales outside of the common market and thereby establish a border within the UK.
The Channel Islands are not a precedent for a completely open border with territories outside the EU. These British Crown Dependencies are not part of the United Kingdom. While there are no passport controls for tourists in operation between the UK and the Channel Islands, there are customs checks for the movement of goods, and British nationals need a work permit to work on these islands.
The same is true for travel between Denmark and Greenland: it feels free for tourists (no passport checked), but there are customs checks for the movement of goods and you need to apply for a working permit if you want to work.
If England and Wales want full sovereignty to pick and choose EU regulations, but Northern Ireland and Scotland want to stay inside the EU, then the only way to retain the UK is by transforming it into an entity like the Commonwealth of Nations, which is clearly not a state and which has “internal” borders.
Thank you Christopher.
There is no misunderstanding. I am fully aware of what the single market means —- minimally, the four freedoms, and no cherry-picking for the member-states (in those components of their states that are in the EU). We do not yet know what relations the UKEXITEERS want to negotiate with the EU—EEA, EEA minus, or something else. See the discussion in The Dalriada Document (a link may be found in Shelley Deane’s posting).
All that this blog-post intended to intimate was that it would be useful to enable Westminster to process EU-law for Scotland and Northern Ireland (though this need not be absolutely required, as the devolved governments could manage much of the burden), and for Westminster to decide which components of EU-law they might apply in England and Wales (e.g., in regulatory standards for export services).
The reference to an input-output machine was too crude, and may have offended the craft of legal draftsmen, but what could not work (in my proposal) would be to have Westminster modify EU law for Northern Ireland Scotland. I do not wish, here, to discuss the intricacies of how EU law is incorporated in member-states, merely to signal that England and Wales (through their majority in the Westminster Parliament) would not be able to disapply EU law in Scotland and Northern Ireland.
Thankfully Brendan penned a document version of this blog.
The Dalriada document addresses the comments and queries posed above and it provides a thoughtful assessment of the mechanics required in the making of the kind of considered constitutional compromise we face. See Brendan’s Academia link:
https://www.academia.edu/26935291/THE_DALRIADA_DOCUMENT_TOWARDS_A_MULTI-NATIONAL_COMPROMISE_THAT_RESPECTS_DIVERSITY_IN_THE_UNITED_KINGDOM
Any progress with this system ? As Scotland is uxiting