H-Nationalism is pleased to publish here the third post of its 'Brexit, Nationalism and the Future of Europe' monthly series, which discusses the United Kingdom's decision to leave the European Union and its impact on nationalism and the future of Europe in a multidisciplinary perspective. Please feel welcome to add to the discussion by posting a reply. Today's contribution is by Professor Michael Keating of the University of Aberdeen and the Centre on Constitutional Change, who focuses on Brexit and Scotland.
Brexit was presented by the Leave campaign as an opportunity to ‘take back control’, restoring the sovereignty of the British Parliament. There has since been some confusion over whether it is the Parliament that is sovereign or the people acting through the referendum, with the Parliament having to defer to their decision. In either case, the underlying assumption is that the United Kingdom is a unitary nation state.
Viewed from the periphery, however, the United Kingdom is not a unitary state but a plurinational union, in which the component nations regularly negotiate their position. There is a longstanding doctrine in Scotland that denies absolute Westminster sovereignty, since the pre-union Scottish Parliament had never asserted it. Westminster, seen in London as the continuation of the old English Parliament, was a new creation in 1707. Since 1999, this has been given substance in the new Scottish Parliament, itself the result of an act of self-determination in the devolution referendum of 1999. While the unionist parties have never acknowledged this competing doctrine, they have gradually accepted that devolution is a permanent part of the constitutional architecture of the United Kingdom and cannot be rolled back by unilateral action of the UK legislature. The same parties also agreed that Scotland could hold an independence referendum in 2014, accepting that its membership of the UK was essentially voluntary. Following that referendum, the unionist parties sought to entrench devolution as far as is possible within the unwritten constitution, notably by writing into the Scotland Act (2016) and Wales Act (2017) the Sewel Convention, that Westminster would not normally legislate in devolved matters without the consent of the devolved legislatures themselves.
Supporters of Brexit have long insisted that EU membership is incompatible with the British constitution, based as it is on parliamentary sovereignty. On the alternative reading of the constitution, however, there is a remarkably good fit between the two. Both are plurinational unions in which sovereignty is pooled and shared. Both lack a unitary demos. Neither has a shared telos in the form of final end-point of constitutional development. Instead, multiple interpretations and aspirations co-exist. The issue of sovereignty is not explicitly addressed; instead there are practical rules about the supremacy of laws. This is the post-sovereigntist view of authority.
The EU has therefore provided an important framework within the UK itself has evolved. It provides a discursive space in which post-sovereign thinking can flourish. It has allowed a debate on Scottish independence in which both sides agreed that, whatever the outcome, both England and Scotland would remain within the wider European framework. Indeed, during the referendum campaign, there was a considerable convergence of the two sides on a middle constitutional ground. The nationalists in effect proposed ‘independence lite’, withdrawing from the political union but staying within the European, along with the monarchical, monetary, security and social unions, while the unionists promised ‘devolution-max’. With the European framework removed, the UK itself comes under strain.
During the referendum campaign of 2014, there was a steady movement of voters from No to Yes, with final outcome being a 55 per cent majority to keep the union. In the Brexit referendum, Scots voted by 62 per cent to remain in the European Union. Having been assured by the unionist side that the only way to remain in the EU was to vote against independence, they now find that the opposite is true and that they cannot remain within both unions.
Probing the voting figures more deeply, it appears that most Scottish voters are still attached to a post-sovereigntist view in which authority is shared at multiple levels. Despite the move to Yes during the referendum campaign, underlying attitudes remained rather stable. Faced with a range of options, the largest group of voters would have settled for more autonomy within the UK. Earlier studies suggested a correlation between support for strong devolution and moderate pro-European sentiment. Unlike English identity, Scottish identity does not predict Euroscepticism. According to the British Election Study, 17 per cent of Scottish electors voted (in 2014 and 2016 respectively) to leave both the UK and the EU ) http://www.britishelectionstudy.com/bes-findings/a-tale-of-two-referendu...). If we add to that the number of Scots who believe both that the Scottish Parliament should be abolished (with power going back to Westminster) and that we should leave the EU, the overall proportion of ‘sovereigntists would be more than a fifth.
There are three scenarios for the future of the devolution arrangement after Brexit. The first is recentralization, as the UK reconstitutes itself as a unitary nation state. The EU Withdrawal Bill is a move in this direction, as it proposes take back to the Westminster Parliament all powers currently shared between the EU and the devolved legislatures. Only later might some of these be ‘released’ back. The Scottish and Welsh governments have declared this to be unacceptable and they are refusing to recommend consent on the part of their legislatures. Legally, the UK Government could go ahead without their agreement, but this would put the existing conventions in peril.
A second possibility is fragmentation as Scotland opts to become independent within the EU. This would leave an open border between Scotland and the EU 27 but create a hard, EU borders between Scotland and England, which nobody wants. It does not meet the revealed majority Scottish aspiration to stay within both unions.
A third possibility is reconfiguration, as Scotland finds its own place within Europe. This would require another exercise in post-sovereign thinking both at UK and European level. The Scottish Government has published proposals for Scotland to remain in the Single Market even as the rest of the UK comes out but these were rejected by the UK Government and are not part of the negotiations. There will be no territorial differentiation but a ‘red, white and blue’ Brexit, supposedly mandated by the putatively unitary British people.
Brexit, along with events in Catalonia, is thus a serious blow to post-sovereigntist thinking as a way of managing national diversity and escaping from the trap of the territorial nation-state.
 Neil MacCormick, Questioning Sovereignty, Oxford University Press, 1999.
 MacCormick, ibid. Michael Keating, Plurinational Democracy, Oxford University Press, 2001.
 Michael Keating and Nicola McEwen, ‘The Referendum Debate’, in Michael Keating (ed.), Debating Scotland, Oxford University Press, 2017.
 Robert Liñeira, Ailsa Henderson and Liam Delaney, ‘Public Opinion and the Issues’, in Michael Keating (ed.), Debating Scotland, Oxford University Press, 2017.
 Michael Keating, The Independence of Scotland, Oxford University Press, 2009.