The EU, Brexit and Scotland's plight, in an unstable, unpredictable Britain

Where does Brexit leave Scotland and the question of independence, after an overwhelming Scottish vote to remain in the EU? The rest of the world looks on… 

William Walker
2 June 2017

Prime Minister Theresa May is greeted by Scotland's First Minister Nicola Sturgeon at Bute House in Edinburgh. Andrew Milligan/PA Images. All rights reserved.The Scottish referendum in 2014 did little to disturb foreign governments’ belief in the UK’s essential stability and continuity. The UK would remain the UK, it would not leave the EU, and its character as a state and society would stay broadly the same.  Politically liberal, centrist and pragmatic, its adaptability had been well illustrated by the Good Friday Agreement, devolution settlements and active if truculent engagement with European institutions. The SNP’s bid for independence, and the UKIP-driven campaign to leave the EU, were flashes in the pan.

Just three years later, the view from abroad is very different. Governments regard the UK as a country that is divided, prone to delusion, and driving itself off the proverbial cliff. It is a country that is essentially unstable, unreliable and vulnerable to discontinuity. They are making no assumptions about the future political shape of the British Isles or the character of its parts.

Just recently, their musings on the UK have been affected by a marked loss of confidence that an orderly exit from the EU can be negotiated. Positions have hardened and goodwill has waned. A view is gaining ground that Theresa May would use a large Conservative majority – were it attained in June’s general election – to ‘crash out’ of the EU, rather than endure the pain of long and tortuous negotiations. Furthermore, the patriotic surge that she has encouraged is being interpreted as preparation for blaming the EU and its member governments for the negotiations’ failure, giving her and her party shelter in any ensuing storm.

Governments regard the UK as a country that is divided, prone to delusion, and driving itself off the proverbial cliff.

This may be too pessimistic. Peremptory departure from the EU would risk a backlash within the UK when its consequences became apparent. It is more likely that the prime minister will try, initially at least, to use a parliamentary majority – if secured –to swing her party in a cooperative direction, hoping that the EU-27 will be prepared to be more flexible than indicated so far. Even if a deal can be done, however, the UK’s departure from the EU is bound to be a long, complex and fractious affair with unsettling consequences. 

The Scottish question

Where does this leave Scotland after its strong vote to remain in the EU, after Nicola Sturgeon’s call on 13 March for a second independence referendum “to give the Scottish people a choice” and its endorsement by the Scottish Parliament on 27 March, after Theresa May’s declaration that “this is not the time” and after her surprise announcement on 18 April of a general election? 

The SNP is not in a comfortable place. Its call for a referendum is not resonating in Scotland and it will be weakened, temporarily at least, if the Conservative Party gains a significant number of Scottish seats on the 8th of June. Whatever the election’s outcome, however, Scotland will suffer from being removed from the EU, especially if it is unceremoniously ‘crashed out’ with the rest of the UK. Opposition to another Scottish referendum may reward unionist parties and constrain the SNP in the short run, but public attitudes could change and change quickly if negotiations with the EU go badly and if Scotland is marginalised and its interests ignored.

Sympathy without support: foreign attitudes to a second Scottish referendum

A few governments, Russia’s among them, would relish another Scottish referendum, hoping that its success would diminish the UK and weaken ‘the West’. Most would not welcome it. On top of the usual worries about secession, a second Scottish referendum would add another layer of complexity and unpredictability to international affairs and the Brexit negotiations when there is already more than enough. 

Furthermore, despite its current unpopularity, the UK has been a significant international player for a very long time. Its break-up would affect institutions and power structures in perception and reality. Unlike Brexit, the UK’s fragmentation would also jeopardize its nuclear deterrent, given Trident’s basing in Scotland, and its permanent seat on the UN Security Council following the state’s diminution and change of personality.

That said, the ‘order of things’ is already being upset by Brexit and perceptions that the UK is losing its way and becoming a lesser political force. Other European states have their difficulties, some of them acute, but none risks such isolation, disintegration and fall from grace. This is not how Brexit supporters see the future – but it has become a commonplace overseas. 

Although a second Scottish referendum would be unwelcome abroad, attitudes towards another Scottish bid for independence are more conflicted today than in 2014.  Governments recognise that Scotland has justice on its side. It is being pulled out of the EU against its will and looked upon as being ‘a good European’ (cosmopolitan, outward-looking, keen to respect international norms and rules).

There is also awareness that London has cold-shouldered the Scottish government since the EU referendum, dismissing the compromise proposed in December’s 'Scotland’s Place in Europe' that would have preserved the UK’s constitutional unity whilst allowing Scotland its own relationship with the Single European Market. EU governments will not wish to become, and be seen to become, parties to injustices meted out by a departing member state.

Elmer Brok, German CDU Member of the European Parliament and former Chair of its Foreign Affairs Committee, probably spoke for many when he said on 5 April that ‘Scotland has our sympathy’ and ‘European opposition to independence has softened as a result of the Brexit vote’. 

It does not follow that Scotland would be given a helping hand or special favours before the UK’s exit had been formalised. The EU seems willing to consider ‘differential arrangements’ enabling Northern Ireland to retain access to the Single European Market, possibly through the very route (via EFTA and the EEA) suggested in 'Scotland’s Place in Europe'. 

However, the same hand is unlikely to be offered to Scotland. The Republic of Ireland’s border with Northern Ireland is the EU’s border and the matter is given urgency by fear of a return to violence. The Irish question, which is imminent, is likely to receive special treatment not granted to the Scottish question, which is less so. 

The question of legality

The 2014 Scottish referendum attained legality through the Edinburgh Agreement that David Cameron and Alex Salmond signed in 2012. It granted the Scottish Parliament the right and responsibility to hold the referendum (constitutionally a reserved matter) under agreed terms. Amongst other things, the UK and Scottish governments pledged to cooperate in settling relations at home and abroad after a yes vote. 

The Conservative Party’s election manifesto has confirmed London’s refusal to negotiate a second Edinburgh Agreement whilst apparently adding fresh conditions. “In order for a referendum to be fair, legal and decisive, it cannot take place until the Brexit process has played out and it should not take place unless there is public consent for it to happen” (my italics). 

The SNP, in its manifesto, has dropped its insistence on an early referendum. But it has emphasised the ‘triple lock’ on legitimacy arising from its victory in the 2016 Scottish election, the Scottish Parliament’s endorsement of a referendum, and the SNP’s winning the majority of Scottish seats in the general election. It maintains that denying Scotland a legal right to choose “would be democratically unsustainable”. 

In order for a referendum to be fair, legal and decisive, it cannot take place until the Brexit process has played out. 

A second Scottish referendum’s legality would be a significant issue abroad as well as at home. On 1 April, Alfonso Dastis, Spain’s foreign minister, announced that Spain would not use its veto to block an independent Scotland’s application for EU membership, signalling a change in the Spanish position of considerable value to the Scottish Government. But he added the caveat, “if it happens legally and constitutionally”, implying the need for London’s consent.

It should also be recalled that the UN, not the EU, confers international recognition on aspiring states through a process involving the UN Security Council in which the UK, US and France have veto powers. Since nation states alone can join the EU, Scotland would have to pass through the UN’s hoops before EU membership could be considered.

Holding a referendum without the UK’s imprimatur would therefore carry great risks.  But would the UK government’s political and moral right to deny Scotland a referendum and right to statehood be respected abroad, especially if the UK ‘crashed out’ of the EU, taking Scotland with it? What would be the consequences, if sustained, of the UK government’s Brexit-driven exercise of arbitrary power as it might well be regarded given the Edinburgh Agreement’s precedent? 

Overall, most foreign governments would prefer agreement to no agreement between London and Edinburgh on a second referendum, favouring an orderly process. If pushed into expressing an opinion, they would probably echo Theresa May’s ‘now is not the time’ whilst signalling that the EU would fast-track Scotland’s application for membership if independence were attained.  

A swarm of uncertainties 

An anxious – but increasingly self-confident? – EU is approaching the Brexit negotiations determined to preserve and strengthen the institution, discourage further departures and stem the populist tide. These goals will not be sacrificed to serve the interests of the UK.

Furthermore, the combination of Brexit and Donald Trump’s election is forcing EU governments to ask searching question about their foreign and security policies. As Angela Merkel said a few days ago, ‘We Europeans truly have to take our fate into our own hands’. The United States’ absence from the debate about Brexit is itself remarkable.

A striving for collective solidarity among the 27 EU member states is being met, in effect, by an enforced solidarity within the UK itself as Theresa May’s government and party seek ascendancy over the 48% of remainers, the parliament in Westminster and an aggrieved Scotland so that it can drive Brexit forward without hindrance.

If the EU negotiations result in an agreement satisfying to each side, the current government may justifiably claim vindication and look forward to a long period in power. If the negotiations are unsuccessful and their outcome painful, any triumph in June’s general election will be brief and the recrimination long.

If the negotiations are unsuccessful and their outcome painful, any triumph in June’s general election will be brief and the recrimination long.

The Scottish government will have little purchase on the EU negotiations. It is fundamentally constrained by Scotland’s lack of sovereignty. In its absence, it cannot prevent the UK government and parliament from exercising their sovereignty both to remove Scotland from the EU and to frustrate nationalist ambitions. Nor can it count on the EU’s support, however much Scotland’s situation attracts sympathy in foreign capitals.  

The current debate in Scotland is about the possibility and desirability of holding another referendum. Independence will remain unexplored until the referendum is called, if it is. The pros and cons of Scotland’s statehood must then be rehearsed in the public square all over again. 

Some issues would recur, including the currency, but a second white paper would of necessity be very different from its predecessor, Scotland’s Future. The outlook would not look and feel the same as in 2014, or in 2017 for that matter, amidst such political and economic fluidity. 

A common view in Scotland is that London’s failure to negotiate a good deal for the UK in the Brexit negotiations would increase support for independence. This may be the case. However, a Scotland that had voted for independence could ill afford to find itself negotiating with a wounded, politically chaotic and antagonistic rest of the UK. 

A reasonably smooth transition to independence requires a positive outcome to the EU negotiations, although not so positive (from the nationalist perspective) that Scottish voters feel more comfortable within the UK. 

The SNP’s manifesto envisages a referendum being held “when the final terms of the [Brexit] deal are known”. But what if there is no deal and the UK ‘crashes out’?  What if the Conservative party loses or only narrowly wins the election on the 8th of June? What if public support for Brexit drains away across the UK? Who knows.

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