Where to? Scotland’s relationship with the UK and the EU after Brexit

Birgit Bujard |

Boris Johnson’s re-election as prime minister and the decisive majority his now completely pro-Brexit Conservative Party won in the December 2019 general election were bound to further strain the already difficult relationship between the central government in London and the Scottish government in Edinburgh. While the Tories managed to win almost two thirds of the parliamentary seats in England in the general election, the Scottish National Party (SNP) won 48 of the 59 Scottish seats. At the same time, the Scottish Conservatives lost 7 of their 13 seats and Labour returned only 1 of its 6 seats in Scotland. The June 2016 referendum, in which Scottish voters had opposed leaving the European Union by 62-38 per cent, brought the question of Scotland’s future governance back onto the agenda. This question was previously thought to have been decisively answered with a no in the independence referendum of 2014. It remains yet unclear whether an unravelling of the British Union might turn out to be one of the long-lasting effects of Brexit.

For long the Labour Party was the dominant party of Scottish politics, but in 2007 it lost this position to the Scottish National Party. The SNP is the largest party in Scotland today and has formed the Scottish government since 2007. In the past three general elections the party has also won the largest number of Scottish seats in Westminster.

When the UK held its first referendum in 1975 over the question whether it wanted to actively take part in Europe’s integration, the SNP had campaigned for a no vote. But since the late 1980s, the party has argued that Scotland should be independent in Europe seeing the EU as an important framework of support for an independent Scotland. Yet this view is not shared by all supporters of the SNP as there are nationalists who do see EU membership as an encroachment on Scotland’s sovereignty. Moreover, the remain vote in the EU referendum did not, as widely expected shortly after the referendum, lead to a rise in support for independence on the part of the Scottish electorate. Brexit, however, has undermined the independence in Europe strategy the SNP followed in the 2014 independence referendum. It was based on the view that there would be no border between Scotland and the rest of the UK as both would be members of the EU. Yet with Scotland in the EU, but the rest of the UK outside, this would no longer be the case.

The Scottish government after the 2016 referendum continued to oppose Brexit pointing to the 62 per cent of Scots, who had voted to remain part of the European Union. Nicola Sturgeon, Scotland’s First Minister, directly after the EU referendum argued that the UK’s exit from the European Union would signify a fundamental change to the circumstances which had prevailed in 2014, when Scottish citizens were last asked to vote on Scotland’s constitutional future in the independence referendum. Another independence referendum was on the agenda.

As early as December 2016 the SNP government presented a paper on the future relationship of Scotland with the European Union. The paper set out various scenarios for this relationship. The preferred one was for the UK to remain in the EU, followed by the UK staying in the EU’s single market and customs union. If either scenario proved impossible, the SNP government proposed a differentiated arrangement which would allow Scotland alone to stay in the single market. The paper also proposed that Scotland kept freedom of movement of people, which was in line with a cross-party consensus in the Scottish Parliament in support of migration. These proposals were ignored by the UK government under Theresa May, which at the time was still deciding on its Brexit strategy and timetable. It was, however, clear on one thing: it rejected a differentiated Brexit for any of the nations within the UK.

Subsequently the SNP decided to support the soft Brexit coalition, which developed, together with the Liberal Democrats, Greens and members of the Labour and Conservative parties. A soft Brexit might reduce Scottish resentment about being taken out of the EU, but more importantly it would also make independence easier as it meant that the relationship between the EU and the UK would remain closer than in the case of a hard Brexit.

Despite the fact that the Conservatives under Theresa May after the 2017 general election were only able to form a minority government, the Scottish government struggled to influence the shape Brexit was going to take. External policy including the relationship with the EU are powers which are reserved exclusively for the UK government and parliament. The devolved institutions have neither the right to co-decide foreign policy nor to be consulted on it, even if the issues in question impact on devolved competences. During the May premiership there were formal intergovernmental meetings but they did not lead to a collaborative approach to Brexit between the UK government and the devolved administrations. The May government’s negotiating lines regarding Britain’s exit from the EU did not reflect the Scottish government’s preferences for a soft Brexit. These differences in Brexit preferences were only going to be starker with Boris Johnson, who after taking over the leadership of the Conservatives purged his party of soft Brexit supporters as well as Brexit opponents and has been advocating a much more distant future relationship with the EU than his predecessor Theresa May.

The Scottish government had not supported the withdrawal agreement Theresa May had negotiated with the European Union. It remained opposed to the revised version Boris Johnson negotiated with the EU after he succeeded May. The government in Edinburgh criticised that commitments on maintaining environmental standards as well as workers’ rights and other level playing field policies that the May government had previously made were weakened under Johnson arguing that this would harm the chances for a close future relationship with the EU. Moreover, the Scottish government continued to oppose ending freedom movement of people arguing it would damage the Scottish economy.

After the electoral success in the 2019 general election the Conservative government was able to swiftly pass the EU (Withdrawal Agreement) Act to give effect to the withdrawal agreement in UK law. The Scottish Parliament on 8 January 2020 did not consent to the act. This decision was supported by the Scottish government. The other devolved legislatures in Wales and Northern Ireland did not consent to it either. According to the Sewel Convention the parliament in London normally refrains from legislating on devolved issues without the consent of the devolved legislatures. It is an important principle underpinning devolution. But as the convention has no legally-binding force the devolved legislatures and executives could not keep the UK parliament from passing the bill and the government from implementing it. That the Johnson government decided to go through with a policy that three out of four nations within the UK did not consent to is highly significant and damaging to intergovernmental relations. The Tory government in London argued that the devolution settlements did not mean that the devolved administrations would be able to thwart decisions on matters which were reserved exclusively for the UK government such as international negotiations and treaties. On the part of UK-Scotland relations it gives the Scottish government another reason to argue that Scotland was taken out of the European Union against its will. It, moreover, added to the already existing alienation between the Scottish government and the one in Westminster and contributed to the impression in parts of the UK electorate that the Tories under Johnson did not respect the status of the devolved legislatures as well as the communities they represent.

In their 2019 election manifesto the SNP called for an ‘escape from Brexit’. Reiterating that the Scottish electorate had not voted for Brexit, the party pledged to continue to work together with others in Scotland and across the UK to achieve this escape. According to the SNP the UK should, moreover, remain close to the EU. The party still supports a soft Brexit as a compromise for Scotland to remain in the EU’s single market. It rejects the Johnson government’s aim to establish a more distant relationship with the EU. With regard to migration, the SNP demands a devolution of migration policy for Scotland to be able to tailor the migration system to its needs and interests.

The SNP also continues its independence policy, demanding that Scotland should be an independent member of the EU. The Scottish Parliament— through SNP and Scottish Green votes—has already pledged its support for a second independence referendum, but it does not have the power to deliver this. A constitutional referendum would need to be agreed to by Westminster to be seen as legitimate. Shortly after the 2019 general election First Minister Nicola Sturgeon wrote to Prime Minister Boris Johnson to formally request the transfer of powers to Holyrood to hold another independence referendum. Johnson’s rejection of this demand came as no surprise. Around the time of Britain’s exit from the European Union on 31 January 2020 opinion polls registered a modest rise in the number of supporters for independence in Scotland and a slight majority for it. This, however, has not proved to be a sustainable trend. This shows that despite the SNP’s rhetoric the fight for Scottish independence is by no means decided and the Scottish electorate remains quite evenly split on the issue.

With regard to the ongoing negotiations of the UK-EU future relationship the Scottish government in April 2020 reiterated its demand for a role in shaping the UK’s future relationship with the EU by calling for an urgent meeting of the Joint Ministerial Committee (European Negotiations), established to coordinate a joint Brexit response between the UK government and the devolved administrations and which by then had not met since January. The SNP-led government, moreover, demanded an extension of the transition phase arguing that the Scottish economy cannot deal with the impact of the Covid-19 pandemic and a hard Brexit or maybe even no future relationship deal at the end of 2020. According to the withdrawal agreement the transition phase ends on 31 December 2020. It can be extended once for one or two years. This extension, however, needs to be agreed by 1 July 2020. So far, the Johnson government has rejected any extension of the transition. Such an extension might also be helpful with regard to the SNP’s independence policy. It might give the SNP the option to hold an independence referendum before the transition phase ends – assuming that the Scottish elections are held in May 2021 and the party wins another majority. Holding a successful independence referendum while Britain remains in the EU’s single market and customs union would make Scotland’s transition to EU membership easier than it would be the case if the UK had already left the transition phase – particularly if the Tories under Johnson succeed in achieving the more distant relationship with the European Union they are looking for.

Under the impression of the Covid-19 pandemic the SNP government announced in March 2020 that it was no longer planning to hold another independence referendum in 2020. Yet that does not mean that the independence debate is going away. That Boris Johnson, who characterises himself as a ‘One Nation Conservative’, and his administration will take a more accommodating line with regard to Brexit and intergovernmental relations than the previous May government appears doubtful. In addition, due to the political importance either side attaches to the issues of Brexit and independence and due to the electoral successes of the Tories and the SNP in the 2019 general election, there might not be much room for compromise between the Scottish and the UK government. Therefore, is quite safe to assume that the constitutional stand-off between the SNP government in Edinburgh and the Conservative government in London will continue without a conclusion any time soon.