Brodies’ Christine O’Neill looks at the constitutional and legal position north of the border
It might be premature to say that the dust has settled on the result of the EU referendum. Although the initial shock of the outcome has worn off, there has been ongoing upheaval with a change of prime minister, the abrupt ending (and revival) of several political careers and the launch of a leadership challenge within the opposition.
While this political drama at Westminster may have captured public attention, north of the border the EU referendum result has raised particular questions about Scotland’s status in the EU and its future relationship with the UK. The markedly different voting pattern in Scotland to that represented by the overall result – Scotland’s 62% vote in favour of Remain making it the most pro-EU region of the UK – has raised again the issue of Scotland’s constitutional future and new questions about whether it might avoid the UK’s withdrawal from the EU.
Scotland’s first minister Nicola Sturgeon set the tone in the immediate aftermath of the referendum by describing a second Scottish independence referendum (indyref2) – as being ‘highly likely’. That statement has been followed by ministerial trips to Brussels to build relationships with contacts in EU member states but clearly also to test political appetite for affording Scotland continuing access to the EU.
In the weekend following the referendum, Sturgeon told the BBC’s The Andrew Marr Show that the Scottish parliament might seek to block the Brexit vote. It was widely reported that Holyrood might have a veto over the referendum result.
The word ‘veto’ was not used by the first minister and the Scottish parliament has no such power. Her reference was to the constitutional convention (now set out in the Scotland Act 2016) that Westminster will not normally legislate in relation to devolved areas without first obtaining the consent of Holyrood. There is debate among constitutional lawyers about whether an Act of the UK parliament to implement Brexit – if an Act is needed – would impinge on devolved areas. The claim is founded on the fact that the devolution scheme has EU law embedded within it: it is expressly forbidden for the Scottish parliament to make laws that infringe EU law. Removing that prohibition, so the argument runs, would change the powers of the Scottish parliament and would need its consent. Even if the convention applies to a Brexit Act, the key point is that a convention is only that: it does not impose binding legal obligations.
Brexit negotiations
There is also an interesting question about the likely role of Scotland (and the other devolved administrations) in negotiating the terms of the UK’s withdrawal from the EU. The importance of including the devolved governments in the negotiation process was (perhaps unexpectedly) mentioned expressly by David Cameron in his resignation speech in Downing Street on the morning of 24 June. The flag raised by his comments has been taken up by the new prime minister Theresa May whose first ‘foreign’ trip after her appointment was to Edinburgh to meet with the first minister. During that visit, the prime minister indicated her intention that the article 50 process for leaving the EU would not be initiated until there was a ‘UK approach and objectives for negotiations’.
Any arrangement giving recognition to only part of a (former) member state would represent a major innovation in the EU’s constitutional practice.
A UK approach may or may not involve the inclusion of Scottish government or parliamentary representatives in the negotiating teams. There are no rules about who might represent the UK during the negotiations and of course there is no precedent for the use of article 50. There is no reason in law why Scotland’s political representative and its civil servants could not be involved – whether political agreement can be reached on negotiating positions remains to be seen.
What looks more difficult is the prospect of Scotland being able to negotiate for itself a special status within the EU while remaining part of the UK. Options for shared sovereignty or a more ‘semi-detached’ relationship with Europe have been raised not only by Scotland but also by Gibraltar, Northern Ireland and indeed by London. Any arrangement giving recognition to only part of a (former) member state would represent a major innovation in the EU’s constitutional practice.
Indyref2
The difficulties in achieving that innovation may lead some to conclude that Scotland’s only prospect of remaining in the EU is as an independent state. Brexit may therefore accelerate demands for a second Scottish independence referendum – and the potential for conflict with the UK government. In advance of the 2014 referendum, the Edinburgh Agreement between David Cameron and Alex Salmond gave the Scottish parliament clear and unambiguous powers to hold a referendum. Those powers expired at the end of 2014. Whether the Scottish government would ask Holyrood to legislate for a new referendum in the absence of the same sort of agreement from Westminster – knowing that such legislation might well be the subject of legal challenge – is just one of the several issues raised by Brexit.
Christine O’Neill is chair of Brodies and specialises in public and constitutional law.