Nicola Sturgeon called for a fundamental shift in the devolution settlement when she set out the Scottish government’s proposals for keeping Scotland in the European single market. In what would appear to be a return to a harder line on Scottish independence, she described a second referendum as ‘highly likely’ directly after the UK’s, at least England and Wales’, vote to leave the EU. She is now warning Theresa May that if the proposals in ‘Scotland’s Place in Europe’, published just before Christmas, are ‘brushed aside’ she will push for another vote on independence.

Scotland voted decisively to remain in the EU while the majority of those who turned out in the UK as a whole voted to leave. The immediate reaction to the 62% to 38% vote in Scotland was to raise the topic of a second independence referendum.  Sturgeon said it was highly likely, so the SNP launched what it described as a ‘national conversation’ about the options. Initially there was a small shift in the opinion polls toward independence. It was assumed a second vote, thus the disintegration of the UK, might follow quite quickly. Since then, however, opinion has drawn back from that initial burst of enthusiasm. The more recent poll at the end of November found that support for independence was at its lowest since the 2014 referendum. That poll showed 44% of Scots supporting independence and 56% opposing it.

Only 31% of Scots were saying they wanted their government to campaign for independence within two years and only 60% of 2014 yes voters were in favour of an early campaign. Reality appears to be that while the Brexit vote may have initially appeared to reinforce the case for independence, the economy presents a far more difficult decision for Scots to make than it did in 2014. First Minister Sturgeon appears to have reflected that caution, conscious that she cannot follow the precedent of Alex Salmond and David Cameron as the leader who calls a referendum, then loses it thus has little choice other than to resign.

Part of Europe, part of the UK

So, there is a dilemma for Scotland to overcome with a majority wishing to stay in the EU but no real wish for independence at this point in time. The SNP’s foreign affairs spokesperson, Alex Salmond, underlined the party’s position in an interview on Sunday Politics Scotland, in which he said that the options set out in ‘Scotland’s Place in Europe’ were: “One: keep the UK within the single marketplace; secondly, if that’s not possible, keep Scotland within the single marketplace; and if that doesn’t happen and the UK is unwilling to listen to Scotland’s representations, then it’s very likely there will be an independence referendum within the next two years.” Thus the proposals in the paper amount to a significant set of new powers for Holyrood. Scotland’s first minister is, as outlined, expected to demand the devolution of regulatory powers over goods, trade and business in such a way that the Scottish government hopes would allow them to at least remain in the single market. The core argument leads to a Norway type of framework that would maintain Scotland’s place within the single market should the rest of the UK opt for a hard Brexit. It calls for devolution of immigration powers and employment rights in order to maintain protections for EU nationals and Scots workers that are likely to be lost in the event of Brexit.

Although May told Sturgeon she was ‘willing to listen to options’ after their initial meeting following her appointment as PM, the first visit outside Westminster by May in fact, the new Chancellor of the Exchequer Philip Hammond  ruled out the possibility of special concessions on trade or immigration when he visited Scotland shortly after. Theresa May has not taken a consistent line though, appearing to agree to involve Scotland in all steps one day, then telling them they have to be part of the ‘decision’ made by the UK electorate the next. This is the political context in which the plan for Scotland to stay within the EU single market after Brexit was devised. The SNP is calculatingly promoting demands that include Scotland’s continued membership of the EU single market in the event of the rest of the UK leaving. The UK government will naturally find that difficult to fulfil. That is, of course, the SNP party line but also the majority view of the Scottish Parliament. This is pushing SNP toward reiterating their case for independence being the only way of resolving the probable impasse. So, the SNP is waiting for something to happen such as Theresa May calling Sturgeon’s bluff. She may assume that the SNP leadership prefers to remain in power rather than take the risk of losing a new referendum. On the other hand, the better course for Westminster would be not to call the Scots government’s bluff but to acknowledge their concerns and the viability of their demands. That is to say, they should recognise Scotland’s legitimate concerns about Brexit. Those concerns are not simply constitutional but pragmatic. Like Northern Ireland, the hard Brexit option would have serious consequences on issues like migration that the Scots economy needs, as too on budgets and EU transfers. May’s government would be foolish not to take Scots proposals seriously because English Tory MPs and the right wing London based media do not care for Scotland and scorn every word Nicola Sturgeon says at the drop of a hat. One important point is overlooked. First minister Sturgeon does not verbally ‘fire from the hip’, but listens to the Scottish Parliament, the SNP and her advisers before she speaks, therefore is rarely speaking in the first person but on behalf of the country she represents. On the other hand, Theresa May has become autocratic and speaks far too spontaneously so that whilst there is no actual voice raised among her own ranks, the ‘cringing’ is conspicuous. Philip Hammond is thus far the only member of her cabinet that has shown this overtly, however that is in regard to UK rather than Scots matters. People throughout the UK have noticed there is something different about Nicola Sturgeon although not necessarily this particular difference. It means that people listen to her rather than the many who believe that May is now talking down to them. In the face of that popularity it seems to be a pointless display of arrogance to dismiss her, which may perhaps be one of the key factors to turning Scots opinion round and bringing independence closer.

Powers to support or defy?

The proposals in the paper are based on the advice of the standing council of experts set up by Sturgeon after the June referendum. They form the basis of the Scottish government’s negotiations in joint ministerial committee meetings for the devolved nations with Westminster early in 2017.

They set a precedent for arguments that Northern Ireland and Wales may share and modify within their own situations. Writing about the paper for the Sunday Herald just ahead of its publication, she described the paper as an important moment for Scotland that is “… also a hugely important moment for those living elsewhere on these islands, as we seek to exert a positive influence on the Brexit process for the whole of the UK”. In other words, Scotland is not setting out to unilaterally defy Westminster, but support Northern Ireland whose position is similar and Wales in as far as that is possible. With regard to Scotland going alone, but not necessarily independent, she also said: “…maintaining Scotland’s current position in the European single market will be at the heart of the proposals…. However, if that is not possible, then we will also be outlining ways in which this could be achieved for Scotland even if the rest of the UK leaves. Doing so will involve the devolution of new powers to Edinburgh, regardless of what happens with the single market, there are further powers being repatriated from Brussels which should be devolved to the Scottish parliament. It would add insult to injury if being dragged out of the EU were to be accompanied by a Westminster power grab.” She gave a note of warning for May: “If our interests cannot be protected in this process, or are indeed brushed aside by the UK government, then the people of Scotland should have the option of considering independence. That is why we are consulting on legislation that would allow another independence referendum to take place if necessary.” She accepted that implementation of the proposals would rely on the cooperation of Westminster, thus expects the UK government to take them seriously in line with its clear previous commitments. In other words, they include the ‘solemn vow’ of 16 September 2014, two days before the independence referendum, when David Cameron, Ed Miliband and Nick Clegg united in a vow to deliver ‘faster, safer and better change’ for Scotland if they voted ‘no’. They signed the joint pledge, published on the front page of the Daily Record newspaper, promising to give the Scots people new powers and further devolution that would be acted on immediately.

Although the Scots government has not factored the vows into the plans, the history of that pledge does bear a great deal of influence on how vigorous it is. In a recent book by Joe Pike, ‘Project Fear’, the author took a close look behind the scenes of the ‘Better Together’ unionist campaign. It includes candid interviews with a number of people involved in the no campaign. The vow was in fact thought up and drafted by the Daily Record in consultation with Gordon Brown. The claim was that Holyrood would be reinforced with extensive new powers following a timetable beginning on 19 September, the day after the referendum, the White Paper by November and draft legislation by January, to be enacted as early as possible in 2015. A YouGov poll at the end of November 2016 showed that only 9% of Scots believe that that vow has been kept, roundly dismissing claims that it has been fulfilled, bearing in mind how much of what was proposed has been dismissed rather than acted on by the responsible Westminster committees.

Psychologically this has created a tension between Scotland and England, particularly that May is highly likely to bring that vow to the fore if she is not cautious.

Who has the mandate for power?
Scotland’s Brexit minister, Michael Russell, said just before the paper was launched that the UK government had ‘an overriding obligation’ to take the proposals seriously. Since 62% of the electorate in Scotland voted to remain in the EU, he said it was “the first serious attempt by any government in the UK to address the challenges thrown up by the Brexit vote”. In the introduction to the paper, the second point states that the ‘…response must also acknowledge that leaving the EU, and in particular any proposal to leave the European Single Market and the Customs Union, will result in significant disruption. It will be directly against the democratic wishes of the people of Scotland and will damage our economy, our social fabric and our future prospects. While the referendum resulted in a mandate for England and Wales to leave the EU, that was not the case for Scotland and Northern Ireland, nor did it provide a mandate for the terms of exit.’ It then goes on to describe five points that summarise the country’s interests within the EU: economic interests, solidarity, social protection, democratic interests and influence. The proposals then outline strategy and options in summary form. The three main points are: a) Influencing the overall UK position; b) Exploring differentiated options for Scotland within the UK; and c) Safeguarding and significantly expanding the powers of the Scottish Parliament.

The final point is perhaps the most significant in terms of where Scotland sees its future: ‘Leaving the EU must not result in greater concentration of powers at Westminster. Powers to be ‘repatriated’ from Brussels that are already within the current responsibilities of the Scottish Parliament, such as agriculture and fisheries, must remain fully devolved, with decisions on any UK-wide frameworks being for agreement between the UK Government and the Devolved Administrations. In addition, and whatever the outcome of our efforts to keep Scotland in the European Single Market, ‘repatriated’ powers not currently within areas of devolved competence, for example employment and health and safety laws, should be devolved to enable the Scottish Parliament to protect key rights. More generally, the current division of responsibilities between the Scottish Parliament and Westminster must be reconsidered to ensure that the Parliament is able to protect Scotland’s interests and to reflect the change that will be effected to the UK’s constitutional settlement by leaving the EU. This should include consideration of significant new powers to secure any differentiated relationship with Europe.

When the paper was published, the UK government’s Scottish secretary, David Mundell, said that they would consider the proposals carefully, if they were “credible and backed up by evidence. (…) I also hope they commit to working closely with us, a team UK approach, to get the best possible deal. That is how we will get the right deal for the whole of the UK – and the right deal for the UK will be the right deal for Scotland”. That is not exactly what Scotland is proposing. So, if the paper is read in detail the tenor of its content is that the Scottish Parliament is making demands that keep options just slightly more open than the SNP as the party that is still demanding Scotland’s continued membership of the EU single market even in the event of the rest of the UK leaving. Whilst only very subtle differences, it does draw a line between government and party policies that on the one hand the UK government cannot claim are one and the same, but in either case will find difficult to fulfil. This will put the SNP in a position to reiterate their case for independence as the only means of overcoming an impasse. However, it is bearing in mind that the SNP is conscious that Scots are worried about economic realities and that they do have 38% of voters who were pro-leave in June. The SNP is patiently waiting for something to happen, thus Theresa May might attempt to call their bluff by assuming that the SNP leadership will prefer to hold on to power in Holyrood rather than run the risk of an uncertain referendum.

Nonetheless, the better course of action for the UK government would be not to call their bluff, but to reach two shrewd decisions. The first should be to recognise Scotland’s genuine concerns about Brexit. Those concerns are not simply constitutional, but also practical issues that Westminster would ignore at their peril. The second would be to recognise that good governance means making compromises with the devolved institutions rather than removing powers which might come with Brexit. May early on said she intended to seriously engage with devolved governments but has since broadly speaking contradicted those words. UK leaders, the prime minister particularly, need to recognise that different parts of the union have different interests that absolutely must be respected. To not do so may be their undoing.

Addressing the border of Scotland

Following on from what Scotland is proposing, there is no good reason why Scotland should not keep free movement of EU citizens, even if the rest of the UK puts new immigration controls in place after leaving. After the paper was launched, Charles Grant of the Scottish government’s advisory standing council on Europe and Director of the Centre for European Reform, said to the Financial Times that a special deal for Scotland would be extremely difficult and would have little support from the UK government and whilst “It would be legally possible for Scotland to have control over immigration that would allow freedom of movement, …politically Mrs May would be highly unlikely to go for it”

MP Stephen Gethins, SNP EU spokesman, told BBC Radio 4’s Today programme that: “We want to remain in the single market, something similar to what Norway does and allow us to trade freely with our partners. Freedom of movement is good for the economy, EU nationals contribute so much to our universities, businesses and our society. It also benefits the millions of UK nationals living and working in Europe.” Referring to what UK ministers including Brexit secretary, David Davis, had already suggested, he added: “If Ireland can have a common travel area and the Westminster government doesn’t think that will imperil the economy, why is Scotland different?” A government spokesperson has said that the government will seriously consider the proposals, despite comments by Philip Hammond, who appeared to rule out any special deal on trade or immigration during a visit to Edinburgh early in December.

Whilst also not directly addressing that point, the plan is also an indicator of the concern of devolved governments that Westminster is not taking the twenty-first century structure of the UK and its evolution to a union of countries with own, very specific developments and economies where each takes the best interests of its people seriously rather than be dominated by a remote government that very clearly treats London and SE England as its priorities, thus would pull the other nations down first in the case of a very likely unsuccessful period following Brexit. Before the paper was published Sturgeon said: “Being part of the European single market is vital for Scotland’s future economic wellbeing. And losing our place in the single market would be potentially devastating to our long term prosperity, to jobs, investment and people’s livelihoods. … It would end our current status as part of the world’s biggest free trade area, a market around eight times bigger than the UK’s alone, and would have a profound and long-lasting impact on our national economic standing and our standards of living.” Predictions show that the economy would be expected to take a hit of about £11 billion per year by 2030 and quoted independent forecasts of about 80,000 job losses with cuts in average earnings of up to £2,000 per person. That comes at a time when by remaining in the EU Scotland would expect growth and require in migration of people with specialised skills who are in short supply at home. It would not just be the loss of existing jobs and investment that would be at stake but new investment, funding and jobs which remaining in the single market would ensure.

Thus the ‘Scotland’s Place in Europe’ paper sets out the best arguments for the proposal that Scotland should remain in the single market even if the rest of the UK leaves. How negotiations between Theresa May and Nicola Sturgeon unfold should be very interesting. If the former gets it badly wrong and with the unfulfilled vow to back up Scots discontent, support for a new and successful independence referendum may grow. Poorly chosen words and decisions may hasten what is increasingly looking like the inevitable end of the UK that may well never come about if the UK would stay in the EU, but also allow greater autonomy within its own union. It is a strange situation in which the UK is trying to get out of a union in which part of the population feel uncomfortable yet cannot see discomfiture within itself that could see ‘their’ union fall apart. Scotland is far more conciliatory than on first impression, but is holding an independence gambit close to its heart if there is no compromise. This article sets out to look closer at the resultant relationship between Scotland and Westminster rather than look at the detailed propositions the Scottish government is making, however the paper is available as a pdf file here and is highly recommended reading in order to understand where the arguments and potential differences that may hasten a parting of ways are coming from.

Brian Milne
A Social anthropologist who specialises in the human rights of children. In practice Brian Milne has worked on the street with 'street children', child labour, young migrants, young people with HIV and AIDS. Brian’s work has taken him to around 40 countries, most of them developing nations; at least four of them have been in a state of conflict or war, thus taking him to the front line in two. Brian’s theoretical work began with migration; working on, written and publishing on citizenship and generally best known as an 'expert' on the human rights of children. Brian has a broad knowledge of human and civil rights for all ages, environmental issues and has been politically active most of his life. An internationalist and supporter of the principle of European federalisation.

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    1. An interesting read, I would clarify a few points however; it needs to be understood that for months before the EU Random the SNP and all the devolved governments of the UK called on the PM to implement a regional protection whereby an Leave vote would need to be endorsed by each part of the UK before it happened.
      The First Minister after the vote announced efforts to find a solution for Scotland’s future in the EU after this did not happen, it’s absolutely not the case that she jamp straight into calling for in independence referendum, indeed her statement still on YouTube is an hour long discussion about all the steps we’d take before discussing independence and the noted “highly likely” point was a response to a question (it is still in my opinion highly likely, no time frame has been given for Brexit), and the national conversation initiative (planned before Brexit) occurred months after the fact. So even at this point, all options are open and independence is not the main option being explored yet.
      Finally, as it comes to polling (the fact aside that polling right now is under a lot of scrutiny after calling the UK elections, EU Ref, and US elections wrong) it really needs to be read with the understanding on the ground; people want to see what Brexit looks like before making a definitive decision, people like to carefully weigh up the pros and cons of a proposition (hence support for staying in the EU) and you cannot do that when you don’t have any detail on what the proposition will look like.
      For now, our priority has to be looking at all options we have for keeping Scotland in its place in Europe, its unlikely that there will be a referendum before Brexit occurs because of timing issues as well as the fact that we’d be taking a vote before the UK has even published and achieved its intentions. I’m very confident about our case, the movement I’m seeing from previous No voters and EU citizens who would choose the EU over the UK if they had to, and the strong starting base compared to the last vote (28% at the start of the referendum and now even the worst polls put us only 6% away from a majority Yes vote. Much like the rest of Europe waiting for Brexit, and the usual problem with Scotland’s place in the UK, we are victims to events completely out of our control, for now those events need to unfold and we need to keep our options open and continue to build the case.

      1. Certainly on the first point Gary. I simply did not go into the detail enough to make it apparent. Where the relationship between the UK government, May particularly, and Scotland most recently is where I aimed to concentrate my thoughts. When trying to write without bias, I being a strongly pro-independence Scot, balancing it out as far as I did was difficult enough. I can only conclude that anybody who tries to tell it the other way that projects the present government as the ‘good guys’ is politically hallucinating. However, I concur with what you say and it does add interesting and necessary detail to the backdrop to where we are now.
        As for polling, well that is a tricky one. Firstly, there are now far too many ‘competing’ polls. They use different interview schedules with the bias of the people or party that commissions them built into the questions. Since all professionally competent organisations have long since realised that simple ‘yes’, ‘no’ surveys do not really work, they have moved on to selective questions. The questions have to be approved by the clients, they tend to steer the final survey in the direction they want. That is precisely how polls commissioned by media always seem to make ‘their side’ win. As a social scientist who has had a career of research during which I have had to rely on interviews at times, whenever I have laid hands on an interview schedule it has been very easy to pull them apart because they are so transparent. From that point of view they only produce mildly interesting propaganda rather than data. Nonetheless they remain the only set of indicators anybody has, therefore a poll of ‘representative’ polls is often as close as anybody can get to monitoring change but without forecasting outcome. As you rightly imply, they have not worked but they are still useful for showing such detail as when change is moving in the right direction to anticipate something, even then with a generous margin of error allowed.
        As for Brexit, it is now a UK media obsession, it is being used as a governmental smokescreen behind which too much other legislation is being winked through but here on the European mainland is not actually considered especially interesting. The political moment in too many EU states counts, especially with planned and unplanned elections this year. Here in France the attitude, when and if discussed, of the UK breaking up is treated with general indifference although a revival of interest in the old history between France and Scotland is generating sympathy across the political spectrum. German friends though have little idea what is going on in that respect. Thus said, Scotland needs support that would feed back to show sympathy on the mainland that would encourage Scots confidence and thus drive the possibility of independence being feasible. At present when anything is said it tends to look at ‘England’ which might be the often misunderstood version of what should be ‘UK’ or that the media who do that are well aware but not articulating their awareness of how Brexit is being driven from Westminster rather than the entire UK. Nicola Sturgeon would be best advised to exploit that to advantage if a new referendum is seriously being considered. European support would be only positive in that respect.

    2. What about the Spanish veto then?

      1. Just after the referendum there was a Spanish election. That has brought a change of attitude. There is a big difference between 2014, the present and what may happen in the foreseeable future. Read this for example:http://blogs.lse.ac.uk/europpblog/2016/07/04/brexit-and-spain-would-the-spanish-government-really-block-scotlands-eu-membership/
        Too much emphasis has been placed on two different situations in which Scotland has a different legal system, thus constitutional arrangements within the UK and a right of secession as confirmed by the 2014 referendum but Catalunya is fully incorporated into the Spanish state constitutionally and legally without a clear right of secession. Also, where Scotland is a country within a union of ‘kingdoms’, Catalunya is a region rather than a state or something like a canton, albeit autonomous, and is thus part of Spain. So, it is difficult to compare in any sense. The ‘Spanish veto’ was always more rumour and speculation based on a single event at which Mariano Rajoy expressed doubts as to whether Spain would support an application for membership of the EU. In reality, it should be forgotten until the situation arises when a decision is at least pending.

    3. How nice of the those who support the EU (and with it the utopian ideals of ‘living as one’) that because of Brexit, you Europhiles are now intent on wishing to see the destruction of the United Kingdom. I can clearly see that your sense of ‘togetherness’ is only suitable if you support the European Project. Please take note that there were also many people in Scotland who also voted to leave the EU and as you Europhiles keep saying ‘the 48 percent have a voice’ Well, how about those in Scotalnd who voted to leave the EU have a voice too like myself? Please also bear in mind that Nicola Sturgeon does not hold a majority in the Scottish Parliament and neither is she overwhelmingly popular with the public. It is also of note that the utopian ideals of the EU has massive youth unemployment in Italy, Spain, Portugal, Greece and also France. But that’s okay, because as long as we are all suffering together in our EU utopia?

      1. I think it is as easy to be dismissive as pro-EU, thus losing sight of what unions are. There has been so much negative information about the EU that detail often gets buried. I believe that anybody who looks at the kind of federal vision of Europe that is realistic should stop looking at existing models. At present the 28 member states have different and often almost incomparable constitutional bases that really do not lend themselves to the either USE or EUSSR that are bandied about by some many people. Indeed with Northern Ireland and Scotland having very different arrangements to any of the federal nation states in the EU it is vaguely 29.5 constitutions across the 28. Likewise the very different legal systems, again a similar hypothetical number across the 28 EU members would take either something akin to 1939 but with a successful occupation of all countries and single systems imposed by diktat. Most of us neither have any vision of that, nor of a USE or EUSSR. Closer union is far more subtle than that.
        However, Scotland is the topic. The dominant force in Scotland is the SNP that has had a policy of achieving independence since it was formed by merging parties that had the same ambition in 1934. When they were at their most popular not so long ago the then majority was well aware of that aspect of their policy. The 1707 Acts of Union have always been opposed by groups who have never accepted them. Indeed, apart from the restoration of the Stuarts, a quite sizeable part of the rationale for the Jacobite rising was separation of Scotland from English domination. It has been constant since 1707, not something newly contrived a few years ago.
        In many respects Scotland was far closer to continental Europe than to England until and to an extent beyond 1707. The so-called Auld Alliance that established with France in 1295 has never actually been rescinded, albeit it has been more or less defunct since the Napoleonic period. Scots had the right to take French citizenship by a law rescinded in 1906 although rarely used, the last person reputedly taking it up in the 1880s was also the first for about a century. Nonetheless, that history does not entirely go away because Scotland is in the UK any more than the republican movement in Northern Ireland could ever be expunged. To wish to be part of one union at the cost of leaving the other has historic as well as political foundations. Dismissing those is irrational. ‘Friendships’ in political settings wax and wane constantly. However, to say there is a minority as well as a majority with regard to Scotland that appears at present to be in favour of staying in both unions is quite selfish. It implies exactly that which drives a wedge between Scotland and Westminster governance, not England as a nation. However, if the majority will to become independent arises and thus sees Scotland leaving the UK does it not become a nation with full self-determination or not? Of course it does.
        Thus said, if then a majority of Scots also prefer to be in a modern form of union that is a federation of nations suited to the 21 century, what is actually wrong with that.? I find that so often people who are anti-EU treat the member nations of the UK as property that is owned by the UK, which also means England when expressed by many people. In fact, without these complications there is no good reason why Scotland should not revert to the ‘personal’ union instead of the ‘political’ as pre-1707. I am neither advocating independence not staying in the UK, but I very much support the entire UK remaining in the EU for reasons I am entirely convinced by that I so often find others not even willing to consider. There is a bit of a stalemate, but as is normal that leads to a new game in which players wish to see a result. From my personal point of view that simply means taking a majority opinion of Scots seriously and not assuming they must do as they are told because a dubious majority of all of the UK says so.

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