Brexit and Scotland

Brian Girvin's picture

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.[1] 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.[2]

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’.[3]  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.[4] 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.[5] 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.

 

[1] Neil MacCormick, Questioning Sovereignty, Oxford University Press, 1999.

[2] MacCormick, ibid. Michael Keating, Plurinational Democracy, Oxford University Press, 2001.

[3] Michael Keating and Nicola McEwen, ‘The Referendum Debate’, in Michael Keating (ed.), Debating Scotland, Oxford University Press, 2017.

[4] Robert Liñeira, Ailsa Henderson and Liam Delaney, ‘Public Opinion and the Issues’, in Michael Keating (ed.), Debating Scotland, Oxford University Press, 2017.

[5] Michael Keating, The Independence of Scotland, Oxford University Press, 2009.

Thanks Michael for that thought provoking commentary.

I was struck by the difference in outlooks from the Scottish post-soveriegnty perspective and that described in England in last month's blog. There are English post-sovereigntists, of course, but they did not have the majority in June 2016. I would be interested to hear why you think this difference in world view exists between the two nations - or should we say 'dominant national traditions', because the Scottish position is relatively new and the English one is not the only tradition. It is, however, sanctioned by past narratives and actions, giving it greater continuity and hence legitimacy than the post-sovereignty version.

Can you expand on how such a difference came about in these dominant national narratives?

Ben

Many thanks to Michael Keating for his discussion of the impact of Brexit on Scotland. I wonder what the implications are for the possibility of another referendum on independence in the near future. I was interested by some of the data that appeared after the EU membership referendum. It appears that a significant minority of SNP/independence supporters voted to leave the EU, despite the official policy of ‘independence in Europe’. This also seems to be the case in Wales where many Plaid Cymru voters supported the leave position. Does this complicate any prospect of a majority for independence and perhaps more importantly does it effectively neutralise the possibility that the SNP will attempt to call a referendum?

Closely related to this is the possibility that even if Scotland did vote for independence, the EU would be reluctant to respond positively to that outcome. The European response to the referendum in Catalonia suggests that the EU and most European states remain committed to traditional notions of sovereignty, especially the inviolability of borders. I appreciate there are serious questions about the Catalan referendum but the response indicates an ideological position that is not post-sovereigntist.

Indeed, various claims that the European Union is itself post-sovereigntist are possibly problematic. There are certainly post-sovereigntist features apparent in the concept of sharing sovereignty, but the EU is unlikely to take a principled or activist position if traditional sovereignty is threatened by post-sovereigntists institutional arrangements.

This, I believe, questions whether post-sovereigntist arrangements to address national diversity can achieve stability while the existing state system remains fundamentally sovereigntist. A case can be made that many of those who supported leave in the referendum had a vague notion of what sovereignty implies in a complex global context. However, there does seem to be a clear preference among such voters for the symbols of sovereignty (including the blue passport) over the subtle compromises and negotiations that are required by membership of the EU and post-sovereigntist arrangements.

The other thought that might be considered is that Brexit is about the assertion of English ethnic dominance within the state. In the past the UK and particularly Britain was successful in mediating the various pressures from sub-state nationalities (Scotland in particular; Ireland less so). The literature suggests that this required constraint and compromise on both sides but especially from the English as the dominant ethnicity within the state. Britishness as a state identity helped these compromises to be achieved in the past. However, Britishness is clearly in decline in most places except among unionists in Northern Ireland. If Britishness was essential to the management of national differences within the UK, its weakness may lead to the final break-up of the UK.

The international environment may also weaken the possibility of stabilising a post-sovereigntist policy. There has been a persistent assertion of sovereignty within the EU since the recession and the immigration crisis. This has taken very traditional forms, emphasising national institutions over multilateral ones, the defence of borders and xenophobia. Nor is this restricted to the EU. Similar attitudes can be found in the Trump administration, in Putin’s Russia and in Turkey and China to list only the most prominent.

What is of concern here is that realist critiques of interdependence and integration receive support from Brexit and other recent events. If sovereignty and national interest seem to be incompatible with European integration or indeed looser forms of cooperation, does this entail a return to an older model of competition among states in an anarchistic global environment?

Thanks to Ben Wellings and Brian Girvin for these comments. In response to Ben, post-sovereignty is partly a response to new European opportunities. Yet it also has historic roots in a usable past. The same is true in Quebec, Catalonia and the Basque Country. These are places where the sovereignty issue was never fully resolved. The pre-union Scottish Parliament never attained full sovereignty, partly because the ecclesiastical realm escaped state control under the twa kingdomes doctrine. Scotland also did not experience the fusion of monarchical and parliamentary conceptions of sovereignty that produced such a powerful sovereignty doctrine in England. Then there is the interpretation of the Union of 1707 as a pact, not a takeover. This alternative Scottish doctrine of sovereignty received support from various unionists including Lord Cooper in the famous case of MacCormick vs Lord Advocate. MacCormick’s son, the late Professor Neil MacCormick was an articulate exponent of these ideas and a post-sovereigntist nationalist. These ideas lie dormant often for decades but provide a stock of doctrines to be employed in new circumstances.

Brian asks about the EU and post-sovereignty. I have argued that the EU provides a discursive space for post-sovereign ideas. The EU as actor or as 28 member states is another matter. Member states certainly stick to traditional ideas of sovereignty, sometimes to be point of self-caricature. On the other hand, their practical exercise of it varies, with some becoming dependencies of Europe (Greece during the bailout). The EU Commission has never really interested itself in sovereignty questions; its concerns are largely functional. The European project as a whole is a continuing object of contestation along multiple lines – federal, supranational, intergovernmental; market-liberal, social; political or technocratic etc.

During the Scottish referendum many EU voices pronounced on the issue, mostly without any basis in law or doctrine whatever but if the EU 27 had refused the admission of a new state achieved by impeccably democratic means with the support of the host state, its democratic and liberal credentials would have been shattered. Catalonia is another matter. After the Brexit vote, there was much more sympathy for Scotland but recent Catalan events have soured the climate again.

As for the relationship between independence and Europe, the Scottish public has never made a connection and SNP voters have never been more pro-European than Scottish Labour voters. The following figures say it all:

Support for EU and independence in Scotland

Yes independence
No independence
Total
Remain EU
27
34
61
Leave EU
17
21
37
Total
44
55

Chris Prosser and Ed Fieldhouse, A tale of two referendums – the 2017 election in Scotland, British Election Study, http://www.britishelectionstudy.com/bes-findings/a-tale-of-two-referendu...

None of the options has the support of more than a third of the electorate. This is the current Scottish dilemma.

On the hand, while Scotland and Catalonia both demonstrate support for independence in the low 40s, if we delve more deeply the largest camp favours devo-max or independence-lite solutions. My earlier work showed no connection between support for independence and support for Europe but a strong correlation between moderate pro-Europeanism and more devolution. Strong nationalists in Scotland whether Scottish nationalists or British nationalists (although the numbers of these are too small for statistical significance) tended to be Eurosceptics. We are currently working on this with secondary analysis of data for Scotland and N. Ireland but the hypothesis is that there is a strong tolerance for divided authority in the middle of the spectrum.

It is true that in some nations there has been a move from post-sovereignty to independence but this is usually followed by a qualification of independence itself. It happened in Quebec and it happened in Scotland in 2014 with the move to ‘independence-lite’. Sovereignty for most nations is an impossible dream in the modern world. I have argued that its appeal lies less in substance or even symbolism than in ontology. If the only way you can prove you are a nation is to be independent then you go for that and worry about the substance later. This explains a significant part of the independence vote in Catalonia.

Michael Keating