The case for Brexit largely rested on the assumption that the United Kingdom is a unitary nation-state in which the people give effect to their will through a unitary and all-powerful Parliament. In this post, Michael Keating (University of Aberdeen) uncovers the shortcomings of such an approach and asks whether Brexit marks the end of the first of two unions?
Pleading for her withdrawal deal in May 2018, Prime Minister Theresa May declared that Brexit was ‘the clear instruction of the British people in a lawful referendum’. As she had explained in 2017, this was because ‘supranational institutions as strong as those created by the European Union sit very uneasily in relation to our political history and way of life.’
This is the essence of the case for Brexit but it rests on the assumption that the United Kingdom is a unitary nation-state in which the people give effect to their will through a unitary and all-powerful Parliament.
There is, however, another interpretation of the United Kingdom as a union of nations in which the key issues of demos (the people), telos (the aim of the union) and sovereignty have never been resolved. Since devolution to Scotland, Northern Ireland and Wales at the end of the twentieth century, this alternative view has been given institutional form through elected representative institutions. While politicians in London may insist that Westminster has merely lent powers to the periphery and can take it back at any time, others insist that the referendums setting up the devolved bodies were acts of self-determination. Moreover, key elements of the Northern Ireland settlement are embedded in an international agreement.
Seen in this way, the UK constitution, far from being incompatible with the European project, is a rather good fit. The EU is also a plurinational union in which demos, telos and sovereignty are contested and never quite resolved.
Europe provided a space in which ideas of divided and shared sovereignty, and multiple identities, can thrive. It enabled an internal devolution settlement that was more expansive than would otherwise have been possible by taking key regulatory functions to a higher level. Specifically, it was the EU Internal Market that provided for an internal market within the United Kingdom. The devolved governments were subject to European law in relevant fields but had the same degree of discretion in applying European policy as do member states. It was the EU Internal Market, together with the Good Friday Agreement and the peace process, that allowed the removal of the physical and economic border between the two parts of Ireland.
It is hardly surprising, then, that the Brexit vote was so sharply differentiated across the United Kingdom. Scotland voted by 62 per cent for Remain. This was not primarily because of Scottish nationalism. While the Scottish National Party made independence-in-Europe a central plank in its platform, independence supporters were no more or less likely to vote Remain than were unionists. Support for the EU, rather, has long been associated with support for devolution and the sharing of sovereignty.
Northern Ireland voted by 55 per cent for Remain but with a sharp division between the communities. Almost 90 per cent of nationalists chose Remain but two-thirds of unionists opted for Leave. In England, voting Leave is strongly associated with feeling English rather than British. The idea that ‘the British people’ voted for Brexit thus begs a lot of questions.
Yet, just as the Brexit negotiations were dominated by the idea of restoring sovereignty, so Brexit has been followed by a campaign to shore up what the UK government still calls the ‘unitary state’. The first version of the EU Withdrawal Bill proposed to recentralize all the competences coming back from Europe, even in devolved areas, with the possibility of ‘releasing’ some of them later. In the face of strong opposition, the UK government reversed tack and only retained power to reserve competences selectively – none have been so far.
The UK Internal Market Act, however, serves the purpose in a different way by providing for mutual recognition of goods and services across the UK. This purportedly replaces the EU Internal Market but is much more centralizing. The exceptions are fewer than in the EU version, the EU principles of subsidiarity and proportionality are absent, and the rules are set unilaterally by the UK government. A provision for the devolved bodies to consent to changes was inserted during the passage of the bill but, if consent is refused it makes no difference. At the same time, the UK government has taken new powers to spend in devolved areas, bypassing the devolved institutions.
Brexit and the subsequent reassertion of the power of the centre have set off a new centrifugal dynamic. Support for independence in Scotland has become associated with support for Europe, while muscular unionism is associated with support for Brexit, polarizing opinion. The net effect is an increase in support for independence to around half the electorate. Brexit has further divided the communities in Northern Ireland and nationalist/ Catholic voters have moved back towards Irish unification. Unionists, for their part, are angry about the imposition of a border in the Irish Sea as part of the Irish Protocol, which they see as a betrayal of assurances given to them. In England, Leave voters have been shown to see the loss of Scotland and Northern Ireland to be a price worth paying to get Brexit done. Even in Wales, there has been a rise in support for independence. All three devolved legislatures voted against the final EU Withdrawal Agreement Bill.
However powerful these centrifugal forces, the United Kingdom is not going to fall apart neatly along national lines. An independent Scotland would undoubtedly gain entry into the EU but the cost would be a hard border with what remained of the UK. Northern Irish unionists are not going to vote for Irish unity and the Irish government itself has shown no enthusiasm whatever for the prospect. English voters may be discontented but there is no mechanism for England to secede from the UK. Brexit has shown that dismantling a complex union is not a simple matter. As the Scottish elections approach and the ambiguities of the Northern Ireland Protocol are exposed, the twin issues of Brexit and the constitution of the United Kingdom are not going away any time soon.
This post represents the views of the author(s) and not those of the Brexit blog, nor of the LSE.
“An independent Scotland would undoubtedly gain entry into the EU” Permit me to doubt it. I think it likely that an independent Scotland would be admitted, but nothing in politics is a certainty, not when 27 countries have to agree. Who knows what the political situation will be in the EU in 5 or 10 years time? We should not assume that all the political actors in the EU will act according to the economic best interests of the whole, or that some will not impose conditions which are unacceptable to the others.
And of course there would be the hard border with England. The EU has many land borders which cause it problems. Will it want another one?`
Scotland would also have to give some things up if it rejoined the EU. I suspect that the EU has had enough of opt-outs and exceptionalism and would for example want Scotland to be really and plausibly committed to joining Schengen and the Euro.
Perhaps the probability of an independent Scotland rejoining the EU sooner or later is 90%. But 90% is not 100% and we shouldn’t pretend it is. I would have put the chance of the UK staying in the EU during my lifetime at 90% 20 years ago (remember when all the major parties were committed to staying in the EU and only a few outsiders like Tony Benn and Bill Cash wanted to leave?), and look what happened to that.
Regarding the UK’s former opt-outs, I hope you can realise these points really apply to any prospects of the UK rejoining a a single member state. Those of us who support an Indy Scotland part of the EU have always been reconciled to the probability of not being able to duplicate ANY of those opt-outs even if the rUK continued as an EU member and did its best to extend them to us.
The only opt-out I can see continuining permanently in a formal nature is Schengen – this is blocked by the Republic of Ireland’s common travel area with the UK, which *may* be continued and extended to Scotland after its independence. If England chooses to destroy the CTA after losing Scotland and NI, that will remove the obstacle to Schengen membership for all concerned.
And of course, joining the Euro can be “indefinitely” delayed as long as the Swedes have done and are doing. The decision to actually join it would be in Scottish Government hands and they would be able to put it to a referendum.
I believe one of the first steps for an independent Scotland should be to join EFTA, so we can immediately become part of the EU single market and customs union again. This would restore the relationship the UK had during 2020, which ended on 1st Jan 2021(albeit with a number of dwindling grace periods).
The hard border with England would be duplicating the sea border checks between NI/UK, which applies to commercial freight. The Scotland/EU side would carry out EU-required checks of England’s exports whilst the rUK side would carry out whatever checks it imposes upon EU exports.
Compared to the south of England, never mind Northern Ireland’s hugely complicated borders(land or sea), the Scotland-England border is a doozy. Local population density is relatively low, it’s short, it only has a few dozen crossings, freight traffic(much lower in absolute volume) is largely restricted to four of them and non-rUK exports can be rerouted via Rosyth-Netherlands ferries more easily than Ireland has been forced to reroute theirs.
Hi Alan D. You say: “And of course, joining the Euro can be “indefinitely” delayed as long as the Swedes have done and are doing.”. Times have changed since the Sweden, or indeed Poland, joined the EU. If a Scottish government were to turn up in Brussels saying they want to join the EU, but it’s perfectly clear that they have no serious intention of joining EMU any time this side of 2100, I think they are going to find it tricky.
“The hard border with England would be duplicating the sea border checks between NI/UK, which applies to commercial freight.” There is the rather important difference that one is a sea border, one is a land border. So it is not completely impossible to put some kind of checks (though as we see, pretty onerous) on goods or people going one way or the other if they go via Holyhead, but it’s a lot harder doing so if you have people driving cars, or for that matter sheep, from one side to the other three times a day. You have a fairer point comparing the border with the NI/Republic of Ireland border, and it’s also the case that the EU, having looked at numerous plans for arranging for NI to be completely outside EU rules while the Republic remains inside, has consistently rejected every single one of them. The Brexiteers were unable to figure up any kind of invisible custom posts staffed by unicorn-riding leprechauns to solve this problem in a way that would satisfy the EU, so I don’t think the Scottish Nationalists are going to be able to either.
There is no reason for an independent Scottish government “to turn up in Brussels saying they want to join the EU, but [making it] perfectly clear that they have no serious intention of joining EMU”. There are stringent conditions for joining the EMU, and as long as Scotland did not meet them then they would be unable to join, willing or not.
As for the border, countries have been dealing with borders all over the world for many hundreds of years now. A border between England and Scotland would not present any new or insuperable problems. There is no requirement for ” invisible custom posts staffed by unicorn-riding leprechauns” unless this becomes a requirement from the English government – and good luck to them then.
Jams: “There are stringent conditions for joining the EMU, and as long as Scotland did not meet them then they would be unable to join, willing or not.”. Quite so. Then the problem would be to convince every nation in the EU27 that Scotland should be allowed to join, even if there is no prospect of it ever fulfilling the Maastricht convergence criteria for joining EMU. Good luck with that.
“A border between England and Scotland would not present any new or insuperable problems. There is no requirement for ” invisible custom posts staffed by unicorn-riding leprechauns” unless this becomes a requirement from the English government – and good luck to them then.” If Scotland is inside the EU and England is not even in EFTA or a comparable arrangement you are going to need a hard border and customs posts between the two. If that’s what the Scots what, then OK. But it needs to be clear that that is what is needed.
I think that the England / Scotland trade and personal traffic is far from being a ‘dozy’. It is a real issue in the independence debate. ‘Alias’ mentions 4 major road crossings, there are also two trunk railway routes. The fact that they are in rural, low population density countryside is not the issue.
The issue is the fantastic volume that passes 24 /7, on the M6 and A1, and on the two railways. 60% of Scottish ‘exports’ are internal to other UK territories. Entire retail distribution networks rely on streams of Anglo-Scottish truck traffic, and numerous overnight container trains. Hourly express trains are well filled, (pre-Covid). Cross border work patterns are quite dense ( revealed by essential workers in Covid). The prospect of full EU customs and border control against c. 60% of Scottish trade is a nighmare which may explain why the lowest support for Indy-Ref can be counted in Dumfries and Galloway and the Borders constituencies. (They voted Tory if you want to check!)