Brexit and the Nations

The Central promise of the Brexit campaign was to ‘take back control’—to restore British sovereignty. Initially referring to parliamentary sovereignty, this rapidly morphed into the sovereignty of the British people, creating a binding mandate for withdrawal. That is an important move, but in both cases sovereignty was to be located in one place. This reflects the traditional ‘Westminster’ view of the United Kingdom as a unitary state in which competences may be devolved to local levels but ultimate power remains at the centre. At the periphery, there is a different view, which sees the UK as a union of nations, whose position within the state is the product of a historic pact and is conditional. The alternative Scottish theory denies that the Union of 1707 created a sovereign parliament that reflected only English traditions of sovereignty. On the contrary, the issue of sovereignty was unresolved, as recognised by Lord Cooper's obiter dictum in the famous case of MacCormick vs Lord Advocate in 1953, where he stated that ‘the principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law’. This is not merely a Scottish nationalist interpretation but is present in Scottish unionist thought. Irish unionism incorporates ideas of a historic bargain and, in Northern Ireland, has been informed by the Covenant tradition in which loyalty is contingent; hence the historic coexistence of a strident ‘Britishness’ with willingness to break with the UK should unionists feel betrayed. This tradition sees the UK as a plurinational union of nations lacking in a unitary people or demos. Rather, citizens in the non-English nations have a choice of identities and can hold more than one at the same time. Nor does the UK have a single purpose or telos, but is interpreted differently across and within its component parts. Rather than being a single shared notion, the union is a family resemblance concept, without shared normative foundations. This ambivalence, far from a weakness, has historically proven to be its strength. Successive UK governments’ campaigns to give it firmer grounding in ‘Britishness’ or ‘British values’ have merely served to highlight divisions and, ironically, put the union itself at risk. Unionism thus stands out in Europe as a state ideology that is not inimical to the recognition of national pluralism. The one thing it could not accept was parliamentary institutions in the component parts, arguing that, precisely because these were nations, such institutions would inevitably assume sovereignty rights. This position shifted at the end of the twentieth century, when unionists accepted devolution settlements for Scotland, Wales and Northern Ireland. This marked a significant constitutional moment, but left critical questions in abeyance. The issue of sovereignty was skirted. Westminster insisted it retained the power to legislate in devolved matters, but accepted a convention that it ‘normally’ would not. Scotland was not given the right to secession, but in practice the Cameron government agreed to an independence referendum, staged in 2014. The Northern Ireland settlement provided for secession and union with the Republic of Ireland by referendum if the demand were present. It invited citizens of Northern Ireland to adopt and express a range and mix of identities. There were north-south institutions and east-west institutions satisfying both nationalist and unionist concerns. Issues of sovereignty and allegiance to the Crown were avoided. There was no reform of the centre corresponding to the reforms at the periphery so, as it had after the unions of 1707 and 1801, it carried on as before. Devolution did not encompass England (which accounts for some 85 per cent of the population) apart from a weak provision allowing English MPs a separate vote on legislation only affecting England. The new settlement reinforced the nature of the UK as a plurinational union, whose institutions were not fixed, but in evolution. Far from being in contradiction with the European project, this ad hoc union, with no defined constitutional status, no unitary demos, no fixed telos and a refusal to address the issue of sovereignty explicitly, bears a remarkable resemblance to that project. There is what scholars of European integration describe as a ‘good fit’. Indeed, the EU has provided an important external support system for the devolution process, compensating for its incompleteness. In the first place, Europe provides a discursive space for ideas of shared and divided sovereignty, multiple demoi and constitutional pluralism, which characterise the UK's evolving constitution. Europe is understood and framed by different actors in different ways, as a free trade area, an intergovernmental body, a federation in the making or a sui generis polity. It has economic, social, cultural and political dimensions, stressed at different times by different actors. Second, the EU provides for market integration and regulation at the European level, allowing for a more expansive devolution settlement within the UK than would otherwise be possible. The European Single Market has allowed an open border between the two parts of Ireland and the removal of all physical controls. It has permitted all-Ireland markets to emerge in agriculture and energy and encouraged cross-border cooperation. The Europeanisation of Ireland has coincided with the ‘post-nationalist’ turn in the Republic and an increasing recognition of the shared historical experiences of both islands. Third, the EU, together with the European Convention on Human Rights, provides a rights regime detached from national citizenship and national identity, enforceable directly in the devolved territories. In Scotland and Northern Ireland, large numbers of citizens do not regard themselves as British.1 Making this the condition for human and civil rights would therefore be problematic. European rights, however are another matter, commanding broad consensus. While England and Wales voted to leave by around 53 per cent, Scotland voted by 62 per cent to remain. Northern Ireland voted to remain by 56 per cent, but there was a big difference between the two communities. Nationalist voters supported Remain by over 80 per cent, while Unionists showed a majority for Leave (Table 1). Surveys have shown that many of the same factors worked across all three nations, but in Scotland and Wales the leadership of the nationalist parties delivered majorities for Remain among social groups that, in England and Wales, voted Leave. The Scottish National party (SNP) has long seen the EU as an important external support system for an independent Scotland. The Northern Ireland Social Democratic and Labour party (SDLP) is historically pro-Europe. Sinn Féin, now the larger nationalist party, is historically eurosceptic but supported Remain on the grounds that it did not want to ‘repartition Ireland’ by erecting a hard EU border. The Democratic Unionist party (DUP) supported leave, while the Ulster Unionist party (a much-diminished force these days) was for Remain but now supports leaving. English identity, which has been growing in recent years, however, is strongly associated with voting Leave. This leaves a set of clashing mandates. The UK government insists that the verdict of ‘the British people’ must be respected, which assumes a single demos, denying the existence of a Scottish demos that was implicit in conceding the independence referendum. Within Northern Ireland, there are not the concurrent majorities that have been required over the years to bind both communities into constitutional reforms. Nor, however, are there clear majorities available for alternative paths, which we can characterise as: disintegration; recentralisation; and reconfiguration. In the immediate aftermath of the referendum, Sinn Féin called for a poll on Irish reunification. The SNP declared that a second independence referendum was likely, a position that was hardened in 2017 when Article 50 was triggered. Yet there are enormous difficulties in the UK falling apart on clear lines. Surveys in recent years have shown that there is no majority in Northern Ireland for reunification, even among Catholics, as long as the alternative of power-sharing under the Good Friday Agreement is available. Nor is there much enthusiasm in the Republic for taking on the North.2 Brexit may create a hard border between the two parts of Ireland, but Irish unification after Brexit would create a similar hard border between Northern Ireland and Great Britain, so that the border would merely be moved. In Scotland, the vote for Remain did not, as widely expected, translate into increased support for independence. In fact, the electorate has never made the link between independence and Europe on which the SNP independence project is based. Surveys over the years have shown less euroscepticism across all parties in Scotland than in England, but particularly among Labour voters; SNP voters are divided in the same proportions as Scots as a whole. The British Election Study has examined the relationship between voting at the two referendums to produce a matrix with four boxes, none of which contains more than a third of the electorate (Table 2). This leaves the SNP highly cross-pressured and at the snap general election of 2017 it lost much of its support among Leave voters, forcing it to park the idea of a second independence referendum. Brexit has also undermined the independence-in-Europe strategy of 2014, based on the idea that, with both Scotland and the rest of the UK (rUK) inside the EU, there would be no hard border. With Scotland in the EU and rUK outside, the same problem would arise on the England-Scotland border as in Ireland. Some elements within the SNP have since argued that an independent Scotland could join the European Economic Area (EEA), which would keep it within the European Single Market and allow for free movement of people with Europe. As it would be outside the EU Customs Union, it could also potentially negotiate a free trade agreement with rUK. In the meantime, the SNP moved to support the emerging soft Brexit coalition alongside the Liberal Democrats, Greens and elements of the Labour and Conservative parties. While a soft Brexit might reduce the Scottish grievance about being dragged out of the EU, it would make independence easier, by keeping open trading links with rUK as well as the EU/ EEA. Nonetheless, Brexit has not triggered a process of the disintegration of the UK, as many feared likely in the immediate aftermath of the referendum result. A second scenario is that the United Kingdom reconstitutes itself as a unitary nation-state bound by the sovereignty of Westminster. This would go against evolving understandings of the UK as a quasi-federation in which the devolved institutions are an entrenched part of the constitution. Signs of this evolution had been the failure of the UK to challenge devolved competences (except on a couple of occasions in Wales); the reluctance to test the limits of devolution in the courts; pledges given by the No side during the Scottish independence referendum campaign; and the devolution acts of 2016 and 2017 for Scotland and Wales respectively, putting the Sewel Convention into statutory (albeit not legally-binding) form. The first test of this was the issue of those competences that are shared between the EU and the devolved legislatures, notably in agriculture, fisheries, environment and justice and home affairs. In many of these fields, there is no UK legislation or policy, so that coherence across the United Kingdom is ensured only by EU regulation. The UK government argued that, after Brexit, common UK frameworks would be needed to ensure the operation of the UK internal market, allow it to negotiate trade agreements with the EU and third countries, and deal with externalities. It further insisted that, as these matters are covered by EU laws, the devolved bodies were merely implementing EU policy rather than making policies themselves. So these competences could be repatriated to Westminster without the devolved level losing powers, as they would exercise the same amount of discretion at the implementation end. The EU Withdrawal Bill therefore proposed that all ‘retained EU law’ including that in devolved spheres, would revert to Westminster. UK ministers could then decide which powers to ‘release’ back to the devolved level. The Scottish and Welsh governments strongly disputed this interpretation and refused to give legislative consent to the Withdrawal Bill. After some months of negotiation, it was agreed that some UK-wide frameworks would be needed to deal with matters affecting the UK internal market, trade, international obligations and common resources. The UK government accepted that the relevant parts of the EU Withdrawal Bill would be subject to legislative consent from the devolved legislatures. It gradually conceded on the principle of blanket reservation of powers, instead working on lists of competences that could be released immediately. Other matters would be subject to non-legislative frameworks through memoranda of understanding or concordats. All powers would finally be released after seven years. Only a limited number of matters would be subject to legislative frameworks. The Welsh government accepted the compromise, but the Scottish Parliament, with only the Conservatives dissenting, refused legislative consent. Yet the Withdrawal Bill was passed. Meanwhile, the constitutional legality of the Scottish Parliament's legislation has been referred to the Supreme Court by the Westminster government. Arguably, this changes nothing constitutionally, as Westminster always retained the right to ignore the denial of legislative consent. On the other hand, the final version of the Withdrawal Bill for the first time stipulates what will happen in the absence of legislative consent for recentralisation of powers. If the devolved legislatures consent, transfer will proceed; if they do not consent, transfer will proceed; if they do nothing, transfer will proceed. Thus, a convention that was hitherto respected is explicitly repudiated. Brexit has therefore upset the pragmatic evolution of the devolution settlement, leaving a constitutional sore to fester. The third possibility is a reconfiguration in which the different parts of the United Kingdom would have different relationships with European institutions. The Scottish government's paper Scotland's Place in Europe,3 set out a range of possibilities. The first preference was for the whole UK to remain in the EU, followed by the whole UK remaining in the Single Market and Customs Union. Failing that, it was proposed that Scotland remain in the Single Market, using a variant of the EEA mechanism. The proposal was complex, involving, for example, identifying the final destination of goods in order to distinguish those within the Single Market from those circulating only within the UK, but the UK government later suggested something similar for keeping the UK in a customs arrangement while leaving the Single Market. The Scottish government paper also proposed that Scotland remain open to EU free movement of people, reflecting a cross-party consensus in the Scottish Parliament in a favour of migration and mobility. These proposals were ignored by the UK government, which rejected any territorially differentiated Brexit, and were not incorporated into the negotiations with the EU. The Scottish and Welsh governments returned to the issue in their Continuity Bills of 2018. As well pre-empting the EU Withdrawal Bill after the UK government had refused to amend it to leave out the reservation of retained EU law, these provided for Scottish and Welsh ministers to retain and update EU provisions. So, Scotland and Wales would effectively shadow EU policies even after Brexit. After the Welsh government came to an agreement with the UK over the Withdrawal Act, the UK government dropped its case against the Welsh Continuity Bill.4 The case of Northern Ireland proved even more difficult. A key item in the Good Friday Agreement (GFA) of 1998 was cross-border cooperation. Although there are not a lot of details about this in the GFA itself, the European Single Market from 1993 allowed for the removal of the remaining physical controls at the border between Northern Ireland and the Republic of Ireland. With the UK leaving the EU, and Ireland remaining, a new, hard border would be reinstated. Aware of the sensitivity of the issue, the UK government insisted that there would be no return to a ‘hard border’ or ‘the borders of the past’ but has been short on detail as to how this would be achieved. The Irish government, for its part, took a decision to play as a loyal member of the EU-27 and use its position there to have the Irish border included as a condition for starting substantive negotiations. In December 2017, an agreement was reached, reiterated in the agreement of March 2018 on transition and the start of negotiation on the future relationship. This was a fudge that avoided addressing the key question. Three options were stated. First, it was hoped that the future overall agreement between the EU and the UK would avoid the need for a hard border in Ireland. It is difficult to see how this can be achieved unless the UK remains in the Single Market and Customs Union, which it has said it will not do. (The UK government's Chequers White Paper would keep the UK in the Single Market for goods and agri-foods and establish a new and hitherto untried customs partnership with the EU, but this has not proved acceptable to the European Commission and member states.) If that failed, there would be a technological solution: customs formalities and regulatory controls would be done electronically, without any physical infrastructure at the border. Yet, such a virtual border would still be a border as long as there are regulatory differences between the EU and the UK. Such differences are particularly problematic for the agricultural sector, an important matter in north-south trade in Ireland and for border communities. Third, failing the other two, there would be regulatory alignment between the two parts of Ireland as far as necessary in order to keep the Good Friday Agreement working. The UK and Irish governments fundamentally disagree on what this entails. On a narrow interpretation, the GFA says relatively little about Europe and the UK has sought to define a narrow list of competences affected. On a broad interpretation, the working out of the GFA, including opening the border and all-Ireland markets and institutions, is deeply dependent on the Single Market. This Irish government therefore interpreted this as requiring full regulatory alignment. In fact, all three options would require such regulatory alignment. Unless the whole of the UK remained in regulatory alignment, this would require a differentiated Brexit for Northern Ireland, something the UK government does not accept. Nor does the DUP, which supports Brexit but opposes a hard border, and provides the UK government with its parliamentary majority. In fact, the idea of a ‘border in the Irish Sea’ has little support from any of the parties, as both parts of Ireland depend more on markets in Great Britain than they do on each other's markets. Reconfiguration of the UK's relationship with the EU to accommodate different forms of Single Market and Customs Union membership for the nations of the UK appears difficult, although it remains (in September 2018) the case that a differential arrangement for Northern Ireland is the EU's backstop arrangement. Successive devolution schemes since the 1880s foundered on two issues: sovereignty, and the place of England. This is not for want of thinking about the English question. Schemes for regional government have been around since the early twentieth century, including the reinvention of the Saxon Heptarchy. Moves from regional planning to regional government foundered in the 1960s and were followed by metropolitan governments in the 1970s, themselves abolished in the 1980s. After 1997, there was a further move to regional government, which failed after a referendum in the North East, and then metropolitan government came back as what was misleadingly called English devolution. In fact, these schemes were about the functional needs of planning, development and service delivery and had little to do with recognition, legislative autonomy and policy divergence as applied in the devolved nations. Englishness was historically accommodated within the broader scope of Great Britain or the United in which England was the Only after devolution to the periphery did it and Brexit has further these different understandings of and It has also regional differences within England as as a while the are In the absence of from to for the of Brexit on these the political is likely to Yet, for all the of for the there little for such it will have to more on their the 2016 referendum, there have been for a constitutional reform for the United are to the idea of a or and a constitution. This is not to In the first place, it would require a settlement of the constitutional issue, Brexit, on which there is no agreement or common Scotland, Northern Ireland and (in of its Wales will international and European of of has its international but not the constitutional to no UK government would allow its such Second, a a unitary demos, which does not and is even more after Brexit. There are proposals for a British Bill of Rights, which some on the right want to the European but rights to is not to Some have sought to common British by grounding it in such as the of law, play and social these are the by Irish and Welsh to their national Third, there is no agreement on the of sovereignty, an issue in the Scottish independence and after Brexit, but not by consensus. Scotland and Northern Ireland in different ways, a right to and UK governments in for with not the even while making its exercise difficult. constitutional agreement is so difficult within Northern Ireland, it is hard to that it could be achieved across the UK as a whole. Scottish and Irish will not the even although they have been to put it into in the short no has been to give to a that would consensus. ideas go back to the century, but a needs to do two It must the sovereignty of Westminster as well as of the other national and it must for England. of a constitutional settlement, will to be part of the of the United The of the system have given parties the of power in the between and in the and since a party whose support was to England and Wales, could have a parliamentary and a future English party be out if Brexit does not for the parts of England. In that the United Kingdom may to where of majority government are with governments dependent on the parties. There may be while at other in the nationalist parties are in with the while the Nationalist party has its support at the to the and to the will be about and powers and, given the of the nations, this will not be or in England As long as England this is a for union, the union is likely to In a that be for Yet although Brexit will leave in the of the UK, it may not as to break the UK itself

Brexit · Business · European union · International trade · Political science · Political and Economic history of UK and US · Political Systems and Governance · Scottish History and National Identity

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