Scotland’s First Minister, Nicola Sturgeon, has indicated that she intends to explore options to protect Scottish membership of the European Union following the UK’s referendum on 23 June. But is it really possible for one of the constituent nations of the UK to block Brexit? Jo Murkens writes that if either Scotland or Northern Ireland rejects leaving the European Union, the UK as a whole cannot proceed with Brexit negotiations in any constitutionally plausible way. [Update 02/07/2016: read a continuation of this discussion here.]
The results of the third nation-wide referendum in the United Kingdom are still sinking in at home and around the world. Just below 52% voted to leave the European Union, just over 48% voted to remain. The widespread conclusion is that the UK must leave the EU.
But there is another way of reading the result. The United Kingdom is not a centralised state. It is a ‘family of nations’. There is a strong case for arguing that the referendum carries only if a majority of voters in all four nations respectively give their backing. England and Wales voted to leave, but Scotland and Northern Ireland voted to remain. Recognising that split is not a matter of shifting the goalposts after the fact. It is about respecting an established, indeed a compelling constitutional order.
Signing of the Joint Agreement between Scotland and Northern Ireland: Northern Irish leaders Martin McGuinnes and Ian Paisley and former Scottish First Minister Alex Salmond in 2008. Wikimedia Commons / CC BY 2.0
Before Westminster politicians think about the practicalities of withdrawing from the EU, they urgently need to address the constitutional consequences. What is the overriding objective? To give legal effect to the will of the UK electorate as expressed in an advisory referendum? Or to preserve the United Kingdom, which is split 2:2?
The strongest case against EU withdrawal is that it is not in the UK’s interest. On that view, an overriding state interest is invoked not to disregard the will of the people, but to recognise that the result divides the constituent parts of the United Kingdom. Abrogation of the Scottish and Northern Irish results would violate the principle of formal co-equality among the four British nations. That stance almost eagerly invites Irish republicans to re-unify Ireland and Scottish nationalists to launch a second independence referendum.
Of course, if the overriding objective is to give legal effect to the overall numerical tally and withdraw from the EU, then the Westminster Parliament must first overcome several obstacles before it can dedicate itself completely to the Brexit negotiations. It must repeal the European Communities Act 1972 by which it became a member state. It must also amend the devolution legislation for Scotland and Northern Ireland.
EU law is incorporated directly into the devolution statutes in Scotland, Wales and Northern Ireland. Section 29(2)(d) of the Scotland Act 1998, for example, provides that acts of the Scottish Parliament that are incompatible with EU law are ‘not law’. A similar provision, section 6(2)(d), appears in the Northern Ireland Act 1998. Indeed, the status of the UK and Ireland as EU member states and signatories to the European Convention on Human Rights was fundamental to the negotiation of the Belfast or ‘Good Friday’ Agreement.
Amending the devolution legislation would be technically easy, but politically hazardous. It would add fuel to the fire stoked up by Scottish demands for independence. It would place ‘a bomb under the Irish peace process’. If Westminster is serious about Brexit it will have to terminate the devolution settlement it has so carefully crafted since before 1997. There is no way for Westminster to avoid negotiating with Edinburgh, Cardiff and Belfast in addition to Brussels, and there is no way for the UK as a whole to survive this process intact.
The integration of the devolved nations within the UK’s constitutional framework means that their consent needs to be sought. The 62% of voters in Scotland, and the 55.8% in Northern Ireland, who voted to remain EU members have turned their nations into veto powers. If either declines, the UK as a whole cannot proceed with Brexit negotiations in any constitutionally plausible way.
The United Kingdom is no longer a centralised state, if it ever was. The devolution arrangements have changed the UK’s constitutional settlement. The old Westminster axis of power has become diffuse through power-sharing agreements with Edinburgh, Cardiff, and Belfast. People who voted Leave may ‘want their country back’, but their country has transformed over the last twenty years.
Under the current arrangements it would be perfectly possible for the family of four nations, acting collectively, to withdraw from the European Union. However, in the absence of unanimity and with awareness of a very delicate situation in Scotland and Northern Ireland, the next Prime Minister and the Westminster Parliament should not divert all political resources to make this purely advisory referendum legally binding. They must channel all resources to keep the Kingdom whole.
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Note: This article gives the views of the author, and not the position of EUROPP – European Politics and Policy, nor of the London School of Economics.
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Jo Murkens – LSE Law
Jo Murkens is Associate Professor in Law at the LSE. He was previously a researcher at the Constitution Unit, UCL, where he led the research on the legal, political and economic conditions and consequences of Scottish independence.
Good post!
“Section 29(2)(d) of the Scotland Act 1998, for example, provides that acts of the Scottish Parliament that are incompatible with EU law are ‘not law’.” This is a perfect example of the way in which the EU has destroyed democracy and legitimate democratic establishments in favor of autocracy. But the peoples of Europe are beginning to see through the democratic facade of this totalitarian bloc and fight for real democracy.
According to your logic, when the laws of a constituent state in a larger federation are required to be compatible with the federal laws, this is autocracy and totalitarian. Seriously?
The EU is not a federation.
It is certainly not a federation but works according to many federal principles. http://www.tandfonline.com/doi/abs/10.1080/01402389408424999 I do not expect The Sun to know about that kind of stuff, but you are commenting on an LSE blog.
Quite. The persistent misunderstanding (deliberate in many cases) of “supremacy” that we’ve seen from Eurosceptics in the UK is fairly nonsensical. Supremacy isn’t a sign of autocracy, it’s basic common sense: if you make an EU law then it should be applied in all EU states. The idea that this means the EU has absolute authority over all UK lawmaking (which is the implication you hear from UKIP) is just flat out misinformation.
It is absurd to claim that “This is a perfect example of the way in which the EU has destroyed democracy and legitimate democratic establishments in favor of autocracy”.
The EU did not impose that clause in the legislation on the people autocratically.
That clause was included by the democratically elected legislators of the land. That statute was enacted fully in line with the democratic process.
It was done by the people to themselves.
To blame the EU for the democratic choices of one member nation is ridiculous.
It is no different to claiming that Brexit is the EU’s doing.
It is the wife beaters argument: “Now look what you made me do”.
Lunacy!
The EU didn’t do it.
The Brits did it.
Thank you Haydn, you make all the points I would have made in response.
“This is a perfect example of the way in which the EU has destroyed democracy and legitimate…” What? The Scotland Act 1998 was passed by which Parliament again? Please remind me where the EU was involved in this.
Jo, you say…
“The integration of the devolved nations within the UK’s constitutional framework means that their consent needs to be sought. The 62% of voters in Scotland, and the 55.8% in Northern Ireland, who voted to remain EU members have turned their nations into veto powers. If either declines, the UK as a whole cannot proceed with Brexit negotiations in any constitutionally plausible way.”
However, The White Paper of 1997 which led to the 1998 Act says that dealing with the EU is a matter for Westminster. Further, Clause 28 of the 1998 Act notes at sub-clause 7, “with regard to legislative competence that this section does not affect the power of the Parliament of the United Kingdom to make laws for Scotland.”
Game over for Sturgeon!
Think again. Westminister knows that this is a very, very delicate situation. Sturgeon has a number of legal challenges which she can use in order to potentially tarnish the Brexit negotiations.
Obviously, the biggest is the indepence vote. It’s very likely that given the opportunity, Scotland would go independent. Such a thing would mean that she could use the independent state to apply as a new state to the EU, from which a number of high-ranking officials have already stated that such a application would be fast-tracked and accepted.
Downing Street have already made it very clear that Scotland does not need a independence vote in order to re-join the EU, due to the fact that Article 50 is based on the UK as a whole, on a constituency by constituency basis, Scotland could legally be classified as it’s own state, the same goes for Northern Ireland.
Of course, the final challenge is that parliament may simply reject the referendum if it so chooses to, since the referendum isn’t legally binding.
After the results of this, and the destruction which has been caused, i wouldn’t be surprised at all if the third option does actually happen. Something is for certain though: the UK faces a number of legal hurdles and potential challenges at hand if it so wishes to leave the EU, from the chaos which has ensued so far, i doubt Brexit will actually go ahead.
Thank you, Decklin, I agree with your response.
If an independent Scotland applied to join the EU, as I understand it all 27 countries would need to agree to Scottish membership. It is highly unlikely that Spain would accept Scottish membership – and the Spanish government has consistently said as much – given the problems Spain itself faces with the Catalonian independence threat.
If the “application” was done via Article 50 rather than Article 49, no state would have a veto. Using Article 50 is quite a sensible path, as stated by Sionadh Douglas-Scott, and may very well appeal to the more pragmatic heads within the EU. the Spanish government have in fact consistently said they have no objection to Scottish membership per se if it was the result of an agreed, legal process between London, Edinburgh and the EU.
If Rajoy/Madrid try to veto Scottish accession negotiated between parties in good faith, they actually undercut their own position vis-à-vis Catalan independence. If they move from accepting “legal” negotiated secession like that envisaged for Scotland but rejecting “illegal” secession like Kossovo or Catalonia, to rejecting any secession whatever the circumstances, then there is no point the Catalans wasting their time trying to negotiate with Madrid, but also Spain may find itself isolated within the EU.
A bit off the main point maybe but hoping for an answer: If we are looking at ways to stop Brexit, would it be useful to petition the EU to grant citizenship and EU passports to any UK passport holder that wants it? Joint citizenship in effect.
I suspect the sheer number of applications to acquire permanent EU citizenship that would result from this would show the referendum result for what it is….deeply flawed and not wanted by the majority of UK citizens.
Interesting, but i suspect politically it would not fly. The EU has made clear that free movement of people both ways is non-negotiable. If UK citizens can have free movement with EU passports, but EU Citizens cannot have free movement into the UK, that is essentially free movement one way only. It would undermine the principle of free movement and also EU negotiating strength. However it would certainly be a passport I would apply for.
I agree that the idea of EU passports being issued is a long-shot!
However, there is nothing to stop the individual members of the EU from granting dual citizenship. In fact, this is something which was suggested by the leader of one of the main political parties in Germany (SPD) this week. Admittedly this was only suggested for Brits living in Germany, but onder the freedom of movement granted by the EU, British citizens still have at least two years to move. Don’t rush to book your tickets yet: it’s only one of many possible ideas for protecting ‘adopted’ German citizens, but it seems to be a sensible one for those of us living in Germany, but still proud (until just over a week ago 😉 ) to be British.
Jo,
You argue that ” if either Scotland or Northern Ireland rejects leaving the European Union, the UK as a whole cannot proceed with Brexit negotiations in any constitutionally plausible way.”
What legal mechanisms are available to Scotland to secure that result?
Dear Vincent, the technical legal mechanisms were raised by Nicola Sturgeon on Sunday and are further explored in this post by a colleague: https://constitution-unit.com/2016/06/13/removing-references-to-eu-law-from-the-devolution-legislation-would-invoke-the-sewel-convention/
My argument is premised on a constitutional understanding of the UK as a devolved state. Before authorising the PM to trigger Art 50, our MPS should be fully conscious of what is stake. Of course, the final say on taking the UK out of the EU will come from Westminster – there is no doubt about that. But the days where Westminster can legislate on behalf of Edinburgh and Belfast, AND expect to get away with it, are over. Deputy First Minister Martin McGuinness immediately called for a border poll on a united Ireland, and Nicola Sturgeon immediately talked up the prospect of a second referendum on Scottish Independence. After 20 years of devolution, and only 18 months after the last independence referendum, Westminster ignores the voices of the Northern Irish and Scottish electorate at its own peril.
Some clarification is in order.It is alleged that the UK, as a member of the EU, and having voted as a whole to Brexit, cannot force Northern Ireland and Scotland to leave the EU as part of the UK, yet, by the logic employed by many Bremainers, it is asserted that Northern Ireland and Scotland severally can stop the UK from leaving the EU.If that is not perverted logic, what is?
In the campaign, the Bremain side has been scraping the bottom of the barrel.It is a well-acknowledged fact that Northern Ireland and Scotland were not, now or ever, members of the EU in their own right.
In this argument that the tail should be wagging the dog to the extent that the dog, rump UK, must keep eating the EU shit sandwich because the tail, Scotland and Northern Ireland, wish it to be so.Better to dock the tail.The argument advanced by you, author, Jo Murkens, looks to be nonsense on stilts.
As Jo Murkens says, the referendum is advisory and this places particular responsibilities on members of the Westminster Parliament. The referendum is the first time that I have experienced the victors of a vote disowning the central arguments (slogans) of their campaign; within hours of the result being announced. The notorious poster substituting Middle East refugees for the Jews in Goebbels’ poster may also be central to legal proceedings against the Leave campaign. This would give MPs some grounds for doubting the validity of the referendum result and,given its advisory status, they may feel justified in refusing to accept the result. The upsurge of violence against perceived immigrants makes the fallout from the anti-immigration issue the most pressing one for MPs to consider. In the longer term the breakup of the UK is likely to be the most significant consequence of leaving the EU and although Westminster can be obstructive, the idea of Scotland as a subject nation of England, to be retained or released at the whim of Westminster, simply has no place in the present century.
There may be a good reason why Alan Sked doesn’t like Farage, but there has been ample and enough opportunity for voters in this referendum to read up on the facts.If propaganda is to disqualify half the electorate’s decision, the other half has no validity either.Maybe that is where democracy is being led: That the leaders give the electorate so much nonsense as to invalidate the election campaigns, so the leaders have a free hand to do as the corporates wish.I think your argument is flawed.
You clearly have a very short memory if “the referendum is the first time that I have experienced the victors of a vote disowning the central arguments (slogans) of their campaign; within hours of it being announced”. Think back to 19 September 2014 after the Scottish referendum. This stream of, frankly desperate, measures advocated by a disappointed Bremain faction is deeply concerniing in its blatant disregard it holds for the democratic will of the people, the majority of whom voted to Leave the EU. The argument that the consequences of that decision were not understood is unsound – to say that MPs must suddenly now consider ignoring the expressed will of the people on the basis it could lead to the longer term breakup of the UK is laughable. For clarity, less than 2 months ago the SNP were elected for the third time into the Scottish Government, one of the key manifesto promises oulined by the SNP was to seek a second referendum on independence if the UK voted to leave the EU against the expressed will of the Scottish electorate. That is the precise situation in which we now find ourselves and the Scottish Government therefore have a clear and resounding mandate to explore that option, MPs were very well aware of that when they agreed the referendum. All this talk of Scotland or Northern Ireland riding to the rescue to save England and Wales from themselves is perhaps the most desperate plea yet. it is not going to happen and if Westminster decides to ignore the democratically expressed will of their people just because the Bremainers are shouting loudest right now they would expose themselves as a weak and trecherous parcel of rogues – they would be globally ridiculed, and rightly so. Accept the decision and move on – Scotland will go its own way and work hard to ensure the close connections with the rUK remain strong and collaborative..
The devolution settlement hasn’t been “carefully crafted since before 1997”. It’s been bodged together in a grudging and piece-meal fashion from the outset.
Two things Its INDEPENDENCE Nicola wants not to get bogged down in court. The other is that If Scotland has a referendum on Independence and it’s YES. There is no need for any rubber stamping from anyone they are Independent EU citizens.
The author has just defeated his own argument by stating that any law that Scotland has which is incompatible with EU law is not law{ paraphrase} Therefore, when the EU lays down a law by which any member state can withdraw from the EU, any state or part thereof can not use existing law in that state to overturn the EU law { because it is incompatible with EU law and therefore not law}
I have been following this article with keen interest and while I understand the points that you are making Jo, and agree with much of it, I’m seeing points which only makes your reasoning seem counter-productive to me.
Your primary focus seems to be on the fact that the ‘four equal nations’ are not liking the result – and it seems to me you are using this point as a reason to possibly legally dismiss the whole Brexit vote. As I see it, you are only succeeding in further picking at ‘the sore’ that is already weeping… What do I mean? Well, you say:
“The United Kingdom is not a centralised state. It is a ‘family of nations’. There is a strong case for arguing that the referendum carries only if a majority of voters in all four nations respectively give their backing.”
Firstly, you are assuming that EVERYONE sees the UK as ‘a family of 4 equal nations’. And the fact is… that is not. It never has been and it never will be. It is indeed ‘centralised’, whereby you admit that WM is the ultimate law-maker, but I’ll come to that presently. My first point – when you have a country where the combined votes of 3 of those nations are outweighed by the number of votes of the 4th nation, you do not have a ‘family of equal nations’. Having no vote in the workings of the central government is not democracy. You touched on the historical conflict of the American War of Independence but you neglected to mention a very important point which precipitated that action; ‘no taxation without representation’. And that is a principle that is even yet being exploited by the 4th nation over the three smaller nations of the UK. Those three smaller nations pay their taxes to the 4th nation (& get back ‘pocket-money’) – but ultimately have no representation, and Scottish votes simply add, from time to time, to the voice of the government that is elected by England. After a failed first IndyRef., Scotland immediately got hit with EVEL. Supposedly that is so that English laws can be debated only by English politiciians. (Scotland doesn’t even get to sit in the room when that is taking place!) – but ultimately everyone is VERY aware that English laws almost always (90%) affect Scotland indirectly. But we have NO say in the making of them. That isn’t ‘equal nations’… That isn’t proportional representation and so how can it be deemed democratic? The Americans got annoyed with that situation after less than 100 years – do you honestly believe that Scotland has seen itself as an ‘equal nation’ for over 300 years?
You said it yourself, Jo, “Constitutionally, the Westminster parliament is the sovereign law-maker of the United Kingdom.” That is ‘centralised’ government in anyone’s terms. WM and the House of Lords made sure that the Scotland Bill did not make Scotland’s government a permanent one. Meaning any laws a devolved Scotland chooses to put in place, WM can overturn simply by dissolving the Scottish Government. WM is, as you say, the ultimate law-maker. Having said all that, in actual fact, it is a contradiction in terms and one which WM perpetuates. It simply isn’t so that WM is totally sovereign, is it? Scotland retained her sovereignty at the signing of the Act of Union, it was incorporated into Scots law and has been carried on through various Acts & pieces of legislation. So – through Scots law, Scots THEMSELVES are sovereign and thus, if they want a Referendum to determine whether Scots per se want independence, then they can have it. If they choose independence, they can have THAT, too – without WM’s consent. During this whole Brexit thing, SNP members have constantly been told that WM will not agree to IndyRef2, EURef was a voice for the WHOLE of the land and held to represent each nation and that we must ‘suck up’ the result. Sorry Jo but (that’s hardly the way a nation treats another ‘equal’ nation!) the fact is, WM have perpetuated that myth and have led the English to believe it is so. You have to face it – this is NOT a country, a ‘family of equal nations’ & WM has deliberately made it that way. So it is, at best, quite galling for WM to use ‘equal nations must have a say’ to repeal the will of the ‘leave’ voters. At worst, it is really quite hateful to use that excuse to have English people hating the Scots even more for daring to ‘put a spoke in their English, leave voters’ wheels’. (When I think of the number of times England has… but we won’t go there!)
You also make the point: “There is a strong case for arguing that the referendum carries only if a majority of voters in all four nations respectively give their backing.” Is there? Nicola Sturgeon spoke to David Cameron before the Referendum, encouraging him to do just that – to triple (quadruple?) lock the results, in that separate nations should be given the same equal right to decide whether to remain or leave & that a veto by one was a veto of the whole idea per se. David Cameron said no and wouldn’t sanction it. I’m not sure how you can use this point now, to be honest.
Your closing sentence, your argument: “They must channel all resources to keep the Kingdom whole.”
You cannot do that if one or more nation does not want that. It is for all the above reasons the other three smaller nations are now feeling it its time to go solo! The rather arrogant English conjecture that those three other nations are ‘equal’ and WM must hold onto them at all costs is actually, in essence part of the problem…
I have to admit – myself and many, many Scots like me cannot help but wonder why, if we are such a difficult nation to work with, greedy, supposedly getting more than our fair share of monetary resources (Barnet etc) why those reins holding the two countries together are not just joyously cut and Scotland allowed to move on to construct her own future? What EXACTLY is it that prompts yourself (through this article) and others to feel so single minded in holding tightly onto another nation that needs and wants self-determination? I know that that’s not part of the issue of this article. But it does rather underline the point – is this whole ‘keep the UK together’ actually necessary? Why not just let Scotland go so that England can leave the EU?
It’s not beyond belief that it’s simply because the English government, WM, doesn’t want to leave the EU and it’s easier to ‘use’ Scotland’s choice and her assumed standing in the UK as a handy excuse to keep England herself in the EU. We’re used to being used. But I think it’s very wrong to use articles like this to try to make a legal case for remaining, to the detriment of another part of that ‘family of nations’.
[If Westminster is serious about Brexit it will have to terminate the devolution settlement it has so carefully crafted since before 1997.]
Does anyone know what the legal situation is about devolution? As far as I understand, Westminster reserves the power to dissolve the devolved administrations. Could that plausibly happen?
“They must channel all resources to keep the Kingdom whole.”
Only if you are of the opinion that the union works for the country you live in. I imagine that the percentage of Scots who believe this is a steadily decreasing minority. I certainly hope so.