IT’S become a New Year cliche that 2016 has been a year of revolutions – like the Glorious Revolution of 1688, the civic nationalist revolts of 1848, the Russian revolution of 1917, or the French and Czech rebellions of 1968. Take your pick. And there is no doubt that from a constitutional point of view, 2016 will inevitably go down as a turning point in the history of the United Kingdom.
But there is one striking difference between the Brexit revolution and those that preceded it. It has no philosophy. There is no John Locke of Brexit, no Tom Paine, no Mazzini, no Karl Marx, no Herbert Marcuse. The intellectual driving force of Brexit has been the Ukip’s laughing gnome, Nigel Farage.
But Britain opted, not for hard or soft Brexit, but for stupid Brexit, dumb Brexit. The ministers in charge of the Article 50 process never got beyond immigration in their vision of post-European UK. They are all over the place on trade relations, alternately blustering and offering dodgy compromises to keep the City of London in the single market.
Stupid Brexit was most obviously the order of the day when the Prime Minister airily dismissed the Scottish Government’s proposals for a halfway house under which Scotland would remain in the European single market even as the UK leaves it. There are many practical difficulties with this Norway-style arrangement, but the UK government was unwise to reject it out of hand.
There could be many advantages to the UK in Scotland retaining a foothold in Europe. It could prevent companies relocating en masse to the EU for a start. There is already going to be a porous border between Northern Ireland, which will be out of the EU, and the Republic of Ireland which remains in it. Having another “backdoor” as it were into the European single market – the destination of 40% of the rest of the UK’s exports – could be very useful.
But even if the UK Government does not see any advantages in Scotland remaining partially in Europe, the canny thing to have done would have been to call First Minister Nicola Sturgeon’s bluff and say: Of course, go ahead, with our blessing. If you think you can persuade the EU to let Scotland stay in the single market, just try. The EU would have had to decline any such approach because the UK is the member state and Scotland has no legal standing in the Brexit negotiations.
There are many examples of sub-state entities that have unconventional relations with the EU such as the Channel Islands, the Faroes, Greenland, Svalbard – though they tend to be small and/or ‘remote’. Regional parliaments in countries such as Austria, Belgium and Germany do have the power to negotiate treaties in their own areas of competence. Under the so called “in foro interno, in foro externo” principle, the Belgian regional parliament of Flanders has negotiated independently of Brussels in areas such as education.
However, these are arrangements for regions of member states. There is no obvious mechanism to discuss such arrangements with a state that is leaving the European Union. The Scottish Government’s options paper suggested that the rest of the UK could decide to leave the EU and “sponsor” Scotland to remain within the EEA. That requires an effort of imagination that is clearly beyond the wit of the present UK Government. It would effectively require Britain to rejoin EFTA, the European Free Trade Association, and the EEA, only to leave it again, sans Scotland.
After giving the Scottish Government freedom to try to achieve a bilateral deal with Brussels, knowing that it would fail, the UK government should have shifted the focus of negotiation to the powers Holyrood could stand to gain when laws are repatriated from Brussels – the Brexit bonus as it was described before the June referendum.
A thinking British Government would say, here’s the deal: You can have all the powers you want short of those required by Westminster to run the UK single market, which must replace the EU single market. You can have agriculture, fisheries, environment, even points-based immigration, as offered by the former Tory Lord Chancellor, Michael Gove.
Scotland would be free to negotiate any deals it wants with Europe on pollution controls, GM crops, arrest warrants. You can do Erasmus scholarships, Horizon research funding. Scots could even retain EU citizenship if they wanted it. But what Scotland doesn’t get are the responsibilities that used to be run from Brussels: competition policy, labour law, trade relations, etc. What could be fairer than that?
The UK government could be cheeky and say that it is giving Scotland, in effect, what nationalists wanted in the 2013 Independence White Paper. That document presupposed a single British market, retention of the pound, continuation of the monarchy and a raft of institutions such as the BBC. It was really a confederal proposal, not outright independence. The difference is that now the single market would be a UK one, not a European one.
This could be presented as the basis of the new federal United Kingdom. Not the status quo ante, but a Union based on a presumption that the Scottish Parliament exercises true sovereignty over the areas of its competence, and under “in foro externo” can do what it wants with Europe. This would require a new Act of Union to accompany the Great Repeal Act.
This would not rule out forever another independence referendum but it would make it very difficult for Nicola Sturgeon or any SNP leader to call one. Such a transfer of sovereignty would appeal to many Scottish voters who want to retain links with the UK even after independence. It would also peel off a number of SNP figures such as former ministers Alex Neil and Kenny MacAskill who see the opportunities of federalism.
But all this would require a degree of constitutional wisdom from the UK that is entirely absent. The revanchist philistines of Brexit are incapable of seeing any virtue in recognising Scotland’s right to a different deal. They are essentially neurotic control freaks who blanche at the very thought of Scotland having more autonomy. Dumb Brexit will eventually force Scotland to take the only course available to protect its long term interests, which is independence. Meaning that 2016 will go down in history as the year the Union died.