Evolving Unions: Brexit, Scotland, and the British Constitution

Evolving Unions: Brexit, Scotland, and the British Constitution

The United Kingdom is having an identity crisis. A fast-approaching March 29 Brexit deadline has thrown Prime Minister Theresa May’s government and Parliament into a state of prolonged chaos as Members of Parliament (MPs) from across the ideological spectrum cannot agree on any single direction. On January 15, the House of Commons rejected May’s proposed deal by 230 votes, the largest margin for a government in history. Beneath the surface of procedural jargon and party politics, major existential questions about the future of the UK in Europe continue to cause gridlock and uncertainty. Leaders of the oppositional political parties, mainly the Scottish National Party (SNP) and Labour have suggested a second referendum to reverse course and remain in the EU, though Labour is also internally divided over Brexit. In the daily political circus, an often forgotten issue is the territorial nature of the modern British system beyond the center of power in London and the consequences that Brexit holds for internal divisions within the plurinational union. This article comprises discussion of political contexts in Scotland which contribute to an ongoing Brexit divide, a brief examination of SNP discourses, and a consideration of Brexit’s impact on the territorial British constitution.

Scotland’s independent religious and educational institutions, in addition to a general lack of confidence in Conservative leadership, have shaped a distinctly Scottish political culture and complicated union with the rest of the UK. Scottish institutional representation in British politics was an incremental process throughout the 19th and 20th centuries, with the creation of a largely symbolic Scottish Office in 1885 in response to criticisms that Scotland was neglected by Parliament and civil service. Administrative devolution left a legacy of limited Scottish political autonomy as well as a national identity shaped by such autonomy and nationalism. Politically, devolution of some legislative powers from Westminster arose out of discontent with conservative government policies during the Thatcher era, reaching a turning point in 1997 when Tony Blair’s government held a referendum on the formation of a Scottish Parliament with tax-varying powers. The Scottish Parliament’s purpose was described by McHarg and Mitchell as “a defensive institution, designed to protect Scotland from Westminster Governments that sought to pursue policies opposed by [the] majority opinion in Scotland.” The Brexit outcome and subsequent implementation tests the absolute limits of this balance between devolved Scottish government and Westminster, as the majority opinion in Scotland has been overruled by the rest of the UK in both a political and constitutional sense.

Contrary to the traditional understanding of the British state, the UK is not a unitary state but rather an asymmetrical union of four nations: England, Scotland, Wales, and Northern Ireland. These unions developed over centuries with the English and subsequently British state absorbing Scottish, Welsh, and Northern Irish cultural identities without wholly replacing them. In the 2016 referendum, only England and Wales voted in majorities to Leave the European Union. Leave defeated Remain by a slim 52-48 margin overall whereas 62% of Scottish voters cast their vote to Remain in the EU. Scotland and Northern Ireland both voted in majorities to remain in the EU but have also expressed a desire to remain in the UK; now they cannot have both. The institutional unions between Westminster, Scotland, and Northern Ireland developed differently and gradually due to complex histories, however British internal politics adapted to plurinational unions with relative stability. According to James Mitchell of the University of Edinburgh, the changing relationship between Westminster and the UK’s component nations characterizes the UK “as a state of evolving unions […] Institutions may frame politics but people make choices as to how the institutions operate.” At the heart of Brexit lies this conflict among institutions and identities, processes of union and separation, and, above all, the constitutional adaptability and volatility of the British state.

As a regionalist political party within the parliamentary system, the original purpose of the SNP was to rally political support for Scottish independence. Ultimately, a 2014 referendum settled Scotland’s status as an independent country, resulting in a 55% “No” vote. Since 2014, the SNP’s vision seeks to advance the cultural notion of Scotland as distinct from the London-centric political establishment. As a center-left party, the nationalism encompassed by SNP rhetoric aligns with the EU and opposes the conservative and insular vision of the UK’s role in the European system. In a study of public opinion from the 1979 and 1997 referendums, Seth Jolly found links between pro-EU sentiment across Scotland and greater public support of devolution and independence. European integration is, therefore, a strategic benefit for an independent Scotland’s viability, not only as an institutional arrangement for trade but as an idea, as the EU provides an alternative to Westminster rule and traditional notions of English hegemony. This strategic relationship between Scotland and the EU is still a focal point for the SNP in the current Brexit debate.

The most principal actor in the formation of Scottish political discourse is First Minister Nicola Sturgeon, Theresa May’s counterpart as the leader of the Scottish Parliament and figurehead of the SNP across Scotland. Sturgeon has recently utilized her public platform to make clear that Scottish interests are not taken seriously by other UK political parties, therefore a renewed consideration of Scottish independence (in addition to a second Brexit referendum) should stay on the table post-Brexit. In a foreign visit to the United States in February, Sturgeon gave a speech on Brexit at Georgetown University’s Institute for Women, Peace and Security:

Scotland has a very proud European tradition. We see ourselves as a European country and people in Scotland by and large, perhaps in contrast with people elsewhere in the UK, don’t really see membership of the European Union as a threat to our own national sovereignty. […] But, amid the confusion and uncertainty of Brexit, one thing I think is clearer than ever. Scotland’s national interests are not being served by a Westminster system which too often treats Scotland as an afterthought, or too often sees our interests as not being material. In my view, they can only properly be served by becoming an independent country. But an independent country that then seeks to play its part in an interconnected world.

Framing Scotland as pro-Europe, culturally distinct from the rest of the UK, and inadequately represented in Westminster is consistent with the scholarly notion of the UK’s asymmetric union as well as the SNP’s political strategy, while the combination of these forces logically leads Sturgeon to steer discourse towards the direction of independence.

Since 2016, Twitter has become an especially relevant medium for the creation and dissemination of political discourse relating to Brexit, whether in the form of official statements, news, commentary, or jokes. MPs often post clips from their speeches in Parliament on social media in order to amplify their message among local constituencies in the Scottish political realm; however, Twitter can also extend beyond Scotland’s borders to shape the national debate. Vocal dissent amongst elected SNP MPs has brought attention to Brexit’s constitutional implications and Scottish grievances over perceived disempowerment due to the proposed Brexit deal going against the democratic will of Scotland’s Remain majority. Joanna Cherry, SNP MP for Edinburgh South West, bluntly described the power dynamic between Theresa May’s government and Scotland in a post on December 10, “Brexit has shown how unequal the Union of the UK is. The PM and her government have no respect for Scotland. Her #Brexit deal has failed and her government is failing. She must put the deal to the people. #PeoplesVote.” On January 21, Ian Blackford, SNP MP for Ross, Skye and Lochaber posted a clip from the House of Commons debate in which he framed Brexit as a precarious and existential situation: “We will not be dragged out of Europe by a Tory Government we did not vote for. We might not be able to save the UK but we can save Scotland. We have an escape route from the chaos of Brexit – an Independent Scotland.” Beyond just political difference on Brexit, the emphasis on the UK government’s authority to override Scotland’s Remain vote exposes the inherent power imbalances in the British system.

The official SNP Twitter account used similar language in a post on January 27: “We don't accept Scotland being dragged out of the EU against its will by a reckless, incompetent Tory UK government. Once the Brexit fog clears, the people of Scotland should have the right to look at a brighter future with independence.” The reality of a second independence referendum is unlikely, especially due to public fatigue with political instability and a complicated process for Scotland to hypothetically re-enter the EU as an independent country. However, the revival of SNP rhetoric about independence signifies not only strong political discontent with Theresa May’s government but a deeper frustration with the asymmetrical territorial distribution of power in the British constitution.

The largely unwritten UK constitution allows a wide range of flexibility to redefine the political fabric of the state, as legislation and convention can be rewritten, repealed, and reconsidered over time based on the governing political party’s interests. Unlike the United States Constitution, there is no single document that defines a unifying constitutional vision or clearly outlines the relationship between the central government and component nations. In the case of Brexit, the lack of a legal roadmap means that the UK is a “real-time experiment” in constitutional change. Scholarly understandings of the British constitution have changed significantly over time, as Vernon Bogdanor asserted in 1979 that the UK was “profoundly unitary” due to the supremacy and sovereignty of Westminster, in following decades a new understanding has emerged framing the UK as no longer unitary but perhaps still organized around the supremacy of the UK Parliament. Since 1999, devolution has allowed greater ambiguity in the constitutional arrangement between the UK Parliament and devolved legislatures. However, Brexit puts into question the nature of the territorial British constitution with semi-devolved powers.

A case that recently came before the UK Supreme Court shows competing constitutional visions in action. In R (Miller) v Secretary of State for Exiting the European Union, or otherwise known as the Miller case, the High Court determined that the UK Government may not unilaterally trigger the Article 50 procedure to formally exit the EU without Parliament’s approval in the form of legislation. The UK Government appealed the case to the Supreme Court which allowed the Scottish government to also claim their approval was necessary to trigger Article 50, due to “a fundamental alteration of the UK’s, and particularly Scotland’s, constitutional arrangements.” The Scottish government’s legal argument hinged upon the Sewel Convention, a principle “that the UK Parliament will not normally legislate on devolved areas without the consent of the Scottish Parliament.” The Court deemed the Sewel Convention not legally enforceable as a norm rather than a law, thus the European Union (Notification of Withdrawal) Act passed through Parliament in March 2017 without the approval of devolved governments. McHarg and Mitchell concluded, “Brexit will affect devolved decision-making and questions of constitutional voice, in terms of how much influence they are able to exert over the form that Brexit takes, or indeed whether it happens at all.” In practice, Scotland’s constitutional influence on Brexit has been significantly limited by the UK Parliament, setting the stage for an even greater degree of SNP rhetoric about disaffection, independence, and self-determination.

It is impossible to know exactly how Brexit will affect UK politics in the long-term. The British constitution is dynamic and adaptable, though the EU referendum has exposed significant fault lines in the union between Westminster and Scotland. If the next generations of Scottish voters continue to feel perpetually unrepresented by British politics and expelled from the EU against their will as SNP rhetoric suggests, the current union arrangement may be unable to resist popular mistrust indefinitely. Similar forces of anti-establishment politics that made Leave appealing to the disaffected UK electorate in 2016 could eventually influence another referendum on a Scottish exit from the UK. Though Scottish independence seems politically improbable and absurd, the idea of Brexit itself also would have been unimaginable only a few years ago. Constant change in British politics is part of its institutional design, and as time runs out on the March 29 Brexit deadline, spectators of Parliament will find that absurd and unlikely things can happen quite often.

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