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Theresa May’s two ‘union’ problem: Scotland and Article 50

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Richard Whitman (Visiting Senior Fellow, Europe Programme) explains what the prospects of a second Scottish independence vote means for Brexit and the UK constitutional orders, reported Chatham House (UK).

Now that Scottish First Minister Nicola Sturgeon has announced that she will push for a second Scottish independence referendum, how do you think this will change UK Prime Minister Theresa May’s approach to the Brexit negotiations?
I think what it means now is that Theresa May has a ‘two union’ problem to address. She has the problem, obviously, of the negotiations with the European Union which are just about to kick off, but she also now has the dual and interconnected problem of the union of the United Kingdom and holding that together. Which means that essentially she’s fighting a set of negotiations, or a political conflict, on two fronts. And they are of course intimately connected. So if she succeeds in the EU negotiations in terms of getting what she wants, or what the UK government appears to want – which is a fairly uncomplicated deal in terms of institutional interconnection with the EU – that’s likely to disappoint the Scottish nationalists, and so it’s going to accelerate the programme for triggering the referendum in Scotland.

What I think is very canny about Nicola Sturgeon’s timescale is calling for it just on cusp of the end of the [Brexit] negotiations. So you’ll have a sense of what the deal is like and whether the deal is the kind of deal that the Scottish nationalists want, which is as close as possible to normal [EU] membership – which Theresa May doesn’t want. So there is a very strong interconnection between the two.

Do you think that that interconnection means that changes to the UK’s devolution arrangement might be coming alongside the Brexit negotiations? Will Theresa May try to make a ‘new offer’ to Scotland?
One of the things I made clear in my Chatham House paper published recently is the infrastructure that is in place for the different parts of the UK – the devolved administrations who negotiate with London – is really inadequate for the task at hand. It’s not equipped for the normal business – if you can call it normal – of negotiating a Brexit. But put on top of that a sort of political dispute between the first minister in Scotland with her party and the governing party in London, and the machinery, frankly, is not built to carry that kind of political contestation.

So I think one of the things that the British government is going to find is, essentially, it will be negotiating on behalf of the United Kingdom but not really having all of the United Kingdom standing behind it – particularly Scotland, but also Wales, if you look at the kinds of things the first minister and Plaid Cymru have said in Wales, and Northern Ireland. Obviously, the political situation there is finely balanced now after last elections to the Northern Ireland assembly. So essentially Theresa May is representing a majoritarian view in England, rather than a view which is held by all of the constituent governments and administrations of the UK.

Does this mean that it’s possible that the devolved administrations will play a bigger role in the Brexit negotiations as they progress?
I think what’s inevitable is that as the Brexit negotiations move along, there are going to be parallel discussions in the UK as to what is going to happen with bits of public policy that are now going to have to be exercised nationally – for example, agricultural policy. And so what will happen is there will be an intra-union, an intra-UK, discussion about what powers should go back – with some devolved administrations, particularly in Scotland, wanting more, the Welsh probably more reluctant, the Northern Irish possibly more ambivalent.

And that’s connected to the EU in the sense that whatever kind of deal the UK does with the EU will determine what kind of powers the UK has back and in turn will raise the question of what kind of powers the devolved administrations may get more of. Because when the devolution settlements were written, it was post-1973 [when the UK joined the European Economic Community], so written into those settlements are assumptions that certain kinds of powers would be exercised at the EU level rather than by the devolved administrations. Obviously Brexit raises the question as to how or when some of those powers will be handed to the devolved administrations.

How does this prospect of debate over the UK’s political settlement change how the EU will approach the Brexit negotiations?
This is a fascinating question, because from the EU’s perspective, they are formally tasked with negotiating with the UK government. But of course they are well aware that the constituent parts of the UK, if you think about the devolved administrations in that way, are divided. They are also well aware that they want to put in place a settlement for Northern Ireland which also accommodates the needs of another member state, the Republic of Ireland.

So you have, from the EU side, a recognition of the legal interlocking of the UK, but also that this is really quite a layered and nuanced set of negotiations to enter into, trying to square not just what the UK government wants with what the EU wants and some member states may want, but also including some kind of acknowledgement of the future – whether it’s the future for Northern Ireland or the prospective future for Scotland as a part of the UK that might be seeking to retain a much closer relationship with the EU as an independent state.

In your estimation, what will the political makeup of the UK, and its relationship with the EU, look like in five years’ time? What is the most likely scenario?
I think the most likely scenario for the UK–EU relationship is that they’ll still be arguing about the nature of the partnership, from the UK’s side wanting it to be a partnership of equals and from the EU’s side seeking a relationship where the UK acknowledges that it’s in more of a subordinate relationship on key questions. And of course if you have a diminished UK in terms of Scottish independence and a different kind of relationship between the island of Ireland and the UK and EU, then what you will have in effect is a type of variable geometry between the EU and the United Kingdom of Great Britain and Northern Ireland. And that’s even without getting into the issue of what happens to Gibraltar, which is obviously another question that has to be squared away, similar to the devolution question but distinctive in terms of the current status that Gibraltar has in relation to the EU.

Do you think that Scotland would vote “Yes” in a second referendum?
I think that if you get a hard Brexit deal or a failure to get a deal on the part of the Conservative government – in other words, an agreement to disagree with the EU in terms of a settlement through the Article 50 negotiations – I think there is a greater-than-not likelihood of Scottish independence.

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Reporter: Denes Osvalt
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Category: Politics
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