Scotland and Brexit, by Duncan Sutherland

Guest post.

Dear Mr. Jorion,

Having read what has appeared in your blog so far about the complexities of the decision taken by the people of England on Thursday (but not by the people of Scotland), I wonder if you are yet aware of a complexity which has just been raised in Scotland today.

It is well known that the EU is understandably anxious to have the Article 50 process initiated as soon as possible. It is also known that the Scottish Government’s stated intention is to give effect to the democratically expressed will of the people of Scotland to remain citizens of the European Union. To that end the Scottish Government is going to seek to negotiate directly with the European Union and has decided to prepare legislation simultaneously to provide for a further referendum on Scottish independence.

It is hoped that such a referendum will take place while the UK is still a member of the EU, i.e. within two years of activation of Article 50, and that the EU will allow, in the event of a majority vote for independence, an accelerated accession process for Scotland before Brexit takes effect. At the moment opinion polls indicate that such a majority vote may well be achievable. If the UK government decides to try to block such a referendum, it will not succeed. In the present extreme circumstances the Scottish Parliament will simply do what it judges to be in the best interests of Scotland.

What leverage does it have? This is the point which I wish to draw to your attention. It is understandably not well understood in the outside world that Brexit cannot take place unless the Scottish Parliament gives legislative consent to measures which would be necessary for disentangling the Scottish legal system from its current numerous juridical connections to the European Union. To understand why this is necessary you have to be aware that Scotland is a separate legal jurisdiction from England and that its legal system is different, thanks to provisions of the Treaty of Union enacted between Scotland and England in 1707, provisions which are enshrined in subsequent modern-day legislation governing the constitutional relationship between Scotland and the rest of the UK.

What has emerged this morning is the fact that First Minister Nicola Sturgeon has stated that it is her government’s policy to refuse to pass such measures of legislative consent and thus to block the Article 50 process unless and until it receives from Brussels acceptable assurances concerning the protection of Scotland’s status as a part of the European Union and from London acceptable assurances concerning its right to proceed to a further independence referendum without interference by the UK government if independence proves to be the only route by means of which the Scottish people’s right to remain citizens of the European Union can be protected.

What this means for the EU’s stated desire to accelerate Brexit is that Scotland will facilitate that if its requirements are met but will block it if they are not.

Make no mistake about it. There may now be a power vacuum at Westminster, but that is most certainly not the case at Holyrood. Scotland now has a choice between two great challenges: the devastating consequences of Brexit in a UK dominated by right-wing Tory neo-liberals on the one hand and the challenges and advantages of independence and social democracy within the European Union, enjoying the benefits of the Single Market and freedom of movement which are vital for our economy. And what if that means the creation of a hard border with England, with customs posts and passport control? Improbable though it may seem, such a prospect no longer seems so difficult to contemplate. Many of the bankers departing from London will choose to cross that border to establish themselves in Edinburgh rather than head for Frankfurt, I venture to suggest.

An improbable conjunction of circumstances has turned stability into economic and political upheaval. As the First Minister of Scotland said this morning, this is a situation which is not of our choosing, but we have to deal with it by whatever means we can, and that is what is going to happen, whether our neighbours in England like it or not . . . and regardless of European reluctance to facilitate the break-up of established European states.

If in negotiations with the Scottish Government the European Union can contrive a means to preserve Scotland’s status as a part of the European Union without the necessity to separate Scotland from the UK state, fine. We would quite possibly accept that. Otherwise Scottish independence is a logical necessity, if a country with a population of over 5 million EU citizens is not to be expelled from the EU against its wishes.

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