The Risks of Caution

It is not yet absolutely certain that Brexit will happen; if the courts rule that the UK Parliament must have its say, then it could still be blocked. However, let us assume that Article 50 of the Treaty of Lisbon is invoked, one way or another, before the end of next March.

There are certain advantages in having a new independence referendum as quickly as possible, assuming that the result will be a vote for independence. It would allow the possibility that Scottish independence and Brexit could be simultaneous, with the EU accepting Scotland as the successor state to the UK for the purpose of EU membership. Scotland would then go straight from being part of the EU as part of the UK to being a member state of the EU. Even if independence did not happen until some months after Brexit, there have been suggestions that some transitional arrangement could be found that would would preserve continuity of EU membership for Scotland. (It may help that the Treaty of Lisbon’s 2 year period from notice to Brexit will only apply if no agreement is reached between the UK and the rest of the EU; an exit agreement can specify the date of Brexit.)

In this way, we could be spared some of the adverse economic effects of impending Brexit and the uncertainty over how much access to the European single market will be retained. Indeed, there may even be some gains from Brexit, as some of the companies which are expected to leave England, in order to remain in the EU, may choose to move to Scotland.

Some cautious independence supporters argue against another referendum in the near future. They say that a second lost referendum would destroy any prospect of independence for the foreseeable future, and that we should wait until opinion polls show consistent and significant leads for Yes before trying again.

However, if the cautious ones have their way, it will probably not be possible to hold a referendum before Brexit. They will then perhaps argue that the Scottish Government should wait until after Brexit before deciding whether to hold a referendum, to see how the reality of Brexit affects support for independence. This would probably mean postponing a decision until at least the summer of 2019. Assuming that at least a year will be necessary from that decision until the referendum, it will then be too late to hold a referendum before the UK general election in May 2020. Caution would then suggest postponing the decision until after the election; it will then be to late for a referendum before the Scottish election in 2021. By then the SNP’s mandate from last year’s election to hold a new referendum in the event of Brexit will be getting rather stale. Hence there would be a need for the SNP to seek a new electoral mandate in the election, with the aim of holding a referendum in the summer of 2022 at the earliest.

Assuming that there is a vote for independence, it might take at least 18 months for Scotland to become independent. Only then could Scotland apply to join the EU; if accession takes a further 18 months, then Scotland might finally rejoin the EU in 2025, after more than 6 years of (assuming a fairly hard Brexit) exclusion from the European single market. How much damage will have been done to the Scottish economy by then?

The cautious ones might argue that it is still worth delaying the next independence referendum if this makes a vote for independence more likely, but I am afraid that it might not work out that way. One reason is that citizens of other EU countries living in Scotland, who mostly voted No in 2014, can be expected to vote mostly for independence in a pre-Brexit referendum. After Brexit, they will be disenfranchised, if they have not already left Scotland as the UK Home Office makes them feel unwelcome.

More importantly, we must consider what I think of as the timorous voters. These are people who are to some degree in favour of independence, but are nervous of change. In 2014, they let themselves be persuaded by Project Fear that independence was just too big a leap into the unknown, and that an independent Scotland would be thrown out of the EU. They were tricked by Gordon Brown into believing that by voting No they could have many of the advantages of independence, in the form of Home Rule, without the perceived risk of leaving the UK. They may have been tempted to vote Yes, but in the end they opted for the comfort of the status quo. They are the people who need to be persuaded to vote for independence to tip the balance in a new referendum.

In a pre-Brexit independence referendum, the status quo will not be an option on the ballot paper. The choice will be between leaving the UK and leaving the EU. The timorous voters will have to choose which of these options is the the less scary, and a significant fraction of them may vote for independence.

In a post-Brexit referendum, there will once again be a status quo for the timorous voters to take refuge in. They will have become used to not being in the EU. The new Project Fear will be able to claim that there can be no guarantee that an independent Scotland would be able to rejoin the EU, as its accession could be blocked by any one of the member states. It might be argued by cautious independence supporters that after maybe three years of Brexit its negative economic consequences will be clear, and will push people into voting for independence. However, I suspect that economic problems following Brexit could actually have the opposite effect on the timorous voters. They may well recognise that Brexit has left them worse off, but that may just make them even more averse to change. If one change, Brexit, has been bad for them, will they really be willing to embrace another major change? Perhaps, the less that a timorous one has, the less they will want to risk that which do have.

There is a final reason why I am in favour of an early referendum. The harsh reality is that May, who is showing signs of becoming one of the most authoritarian Prime Ministers in recent UK history, could block a referendum or simply refuse to recognise a vote for independence. The EU will not want the UK to be seen to have gained from Brexit, to discourage anti-EU movements in other EU countries. For this reason, and also because the EU does not want to lose territory or citizens, I believe that the EU will look favourably on Scotland wanting to become independent in order to remain in the EU. In Brexit negotiations, the UK will be in a weak position if the government wants anything other than the hardest of Brexits, opening up the possibility that the EU could put pressure on Westminster to allow a new independence referendum. The EU could justify this by saying that it is acting to protect the right of the people of Scotland to remain EU citizens. After Brexit, it will be much more difficult for the EU to intervene on behalf of Scotland.

Once Article 50 has been invoked, and it has been made clear that no special arrangement which might protect Scotland from the consequences of Brrexit will be clear, I hope the Scottish Government will push ahead as rapidly as possible with a new referendum. Otherwise, I fear that any chance of independence in the foreseeable future may slip away.

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An Old Bill May Upset May

There is currently a legal challenge underway to to the UK governments’s intended use of the royal prerogative to initiate Brexit.
http://www.bbc.co.uk/news/uk-politics-37679896

While it is true that signing up to, or withdrawing from, international treaties is normally done by use of the royal prerogative, there is a complication when it comes to initiating Brexit.

The Bill of Rights 1689 was essentially a bargain between the English Parliament, and William of Orange and his wife Mary, who became joint monarchs after Mary’s father, James II of England, was deposed in the so-called Glorious Revolution. While James was deposed largely because he was a Catholic with a son and heir who would be brought up as a Catholic, the people who drew up the Bill of Rights will have remembered the civil wars caused by Charles I’s desire to rule as an absolute monarch, unencumbered by Parliament. It includes the following provisions.

Dispensing Power.

That the pretended Power of Suspending of Laws or the Execution of Laws by Regall Authority without Consent of Parlyament is illegall.

Late dispensing Power.

That the pretended Power of Dispensing with Laws or the Execution of Laws by Regall Authoritie as it hath beene assumed and exercised of late is illegall.

The intent of these two sentences is clear; just as only Parliament could make laws, only Parliament was to unmake laws. If laws could be overturned by a king using the royal prerogative, there would be the possibility of a new struggle for power between King and Parliament. The risk that a monarch will try to rule as some kind of hereditary dictator has faded away long ago, and the convention is now that the royal prerogative is always used as advised by government ministers. However, the Bill of Rights is still on the statute books and generally accepted as forming a key part of the UK’s uncodified constitution; it is crucial to the UK’s status as a constitutional monarchy in which the monarch’s powers are limited by law.

The European Communities Act 1972 (with later amendements) incorporates EU membership into UK law, and allows EU laws and regulations to form part of UK domestic law without the need for further legislation by the UK Parliament. Once Article 50 of the Treaty of Lisbon is formally invoked, Brexit appears to be inevitable, as the Treaty of Lisbon makes no provision for a member state which has given formal notice of its intent to leave the EU to retract that notice. If the ECA is not repealed by Parliament before Brexit actually happens, it will inevitably  be rendered null and void by Brexit, at least in part. If Brexit has been initiated using the royal prerogative, this would appear to be contrary to the Bill of Rights.

May has announced that the government will put forward a ‘Great Repeal Bill’, which will repeal the ECA when Brexit actually happens. If such a bill were to be passed before Article 50 were invoked, there would then be no objection to the use of the royal prerogative. In any case, such a bill could easily incorporate a clause giving the PM the authority to invoke Article 50 without having to rely on the royal prerogative. But if the bill is only put before Parliament once Brexit is inevitable, as it seems will be the case, then Parliament will have little choice but to pass it if a messy legal situation is to be avoided.

If the royal prerogative cannot be used to repeal legislation, how can it be right for the royal prerogative to be used to put Parliament in a position where it is virtually compelled to repeal that legislation?

The may be a further complication. In the ‘Metric Martyrs’ case (Thoburn v Sunderland City Council 2002), Lord Justice Laws held that the European Communities Act is a constitutional statute which cannot be impliedly repealed by subsequent statutes. In other words, it can only be repealed by a later Act of Parliament if that Act clearly and explicitly states Parliament’s intention to repeal the ECA. http://www.publications.parliament.uk/pa/cm201011/cmselect/cmeuleg/633/63304.htm

If the royal prerogative cannot be used to repeal ordinary legislation, how can it be right for it to be used to override a constitutional statute?

If Parliament had so wished, a clause could have been included in the European Union Referendum Act 2015 granting the Prime Minister the authority to invoke Article 50 in the event of a Leave vote. Why did Cameron not include such a clause – over-confidence that Remain would win or just plain incompetence?

The UK’s ramshackle, uncodified constitution gives too much power to the Prime Minister, and May – not even elected to that position by her own party’s members – appears determined to impose a massive change, namely withdrawal from the single market, which was not specified in the referendum, without allowing Parliament any say in the matter. This does not seem at all democratic to me.

Cameron’s Legacy

David Cameron was quick to run away from any responsibility, even as an ordinary MP, for sorting out the mess which he created by holding the EU referendum. His culpability lies not just with the fact that he chose to hold the referendum. The referendum was fundamentally flawed in that it did not ask whether the UK should seek to retain its membership of the single market in the event of Brexit. Leaving the single market is arguably a much greater change than leaving the EU itself, with potentially serious consequences for the UK economy, but there was no reference to this on the ballot paper. People who voted Leave were voting for an option which was not adequately defined.

A soft Brexit (i.e. the Norwegian model) is not a particularly sensible option. Many people who voted Leave would be opposed to it because it would not allow the UK to limit the number of EU citizens coming to the UK to live and to work, and because the UK would still have to follow many of the EU’s laws and regulations. Most people who voted Remain would be dissatisfied with it, although they might well prefer it to a hard Brexit, as it would almost certainly be more expensive overall than full EU membership, and the UK would have lost any input into decisions taken by the EU. It would be an compromise which would not really satisfy anyone.

There is no guarantee that a soft Brexit would be possible, even if the UK government were to try to achieve this. Perhaps membership of the single market after Brexit would require the UK to rejoin the European Free Trade Area. The UK has more than four times the population of all the current EFTA members; given the UK’s record of awkwardness in the EU, I suspect that the current EFTA members might not let the UK join them. Any deal between the EU and the UK must be agreed by all the other EU members; any EU member state could veto it. For example, it may be that Spain will demand concessions on the sovereignty of Gibraltar as its price for consent to a post-Brexit deal – would the UK government be willing (or able, in the present political climate) to make those concessions?

There is also the theoretical possibility of what one might call a firm Brexit, in which the UK would negotiate a series of trade deals (similar to those between Switzerland and the EU) which would give partial access to the single market while perhaps allowing the UK to restrict immigration from the EU. However, I have read that the EU has little inclination to go down that road, because of the effort involved in working out a whole new set of individual trade deals. In any case, the risk that any such deals will eventually be vetoed by at least one EU member is high.

A hard Brexit cannot be vetoed, as it is the default case which will happen if no exit agreement is reached within two years of the UK formally notifying the EU of its intention to leave. Therein lies a trap, should the UK try for a soft or firm Brexit. The EU will not start negotiations until the UK has handed in its notice, but once this is done, there is no way back for the UK without the consent of all 27 of the other EU member states. Once the UK starts the Brexit process, Brexit becomes virtually unavoidable even if the UK government cannot get an acceptable deal.

It now looks as though a hard Brexit is what the government is aiming at, perhaps with an eye on UKIP. Nevertheless, the possibility of adopting the Norwegian model (which was discussed during the referendum campaign) means that leaving the EU does not make leaving the single market inevitable, and therefore one cannot say that a vote for Leave was neccessarily a vote to leave the single market. Hence the UK government does not have an explicit electoral mandate to take the UK out of the single market. It would have had an implied mandate if the Leave campaign had consistently argued for a hard Brexit, but its leaders mostly chose to evade the question of what version of Brexit they wanted or expected. They also seemed to have an overly optimistic view of the UK’s ability to secure a favourable deal, ignoring the fact that EU leaders cannot afford to let the UK appear to benefit from Brexit if they are to discourage anti-EU movements in other member states.

Supporters of Brexit argue that the result of the EU referendum must be honoured, and that for the UK government not to initiate Brexit would be a denial of democracy. However, I would suggest that taking the UK out of the single market without a clear mandate to do so would also be undemocratic. I wonder what the result would be if a new referendum were to be held in which the voters were asked to choose between the status quo and a hard Brexit. I also wonder why I have not seen the results of any opinion polls which have asked that question.

There may be a way out of this mess. Incompetent (or over confident) Cameron’s bill setting up the EU referendum did not include any authorisation for the Prime Minister to initiate Brexit following a Leave vote. As a result, there is a legal case pending, in which it will be argued that using the royal prerogative to start the Brexit process, as May has said she will do, would be contrary to the Bill of Rights. If this view is upheld by the courts, then the decision to invoke Article 50 of the Treaty of Lisbon will have to be taken Parliament, but a majority of MPs are said to be against Brexit and might reject it. Could May, who campaigned (albeit feebly) for Remain, be hoping for such an outcome? Is that a reason why invoking Article 50 has been delayed so much?

We live in interesting times – but not in a particularly good way.

Labour Pains

The big distraction from the Brexit shambles at the moment is the the attempt by the Blairites to take back control of the Labour party. It has been suggested (www.craigmurray.org.uk/archives/2016/06/still-iraq-war-stupid/) that this is happening now because they are afraid that, once the Chilcot Report is finally published, Jeremy Corbyn will publicly describe Tony Blair as a war criminal and call for his prosecution. Perhaps the MPs who are trying to depose Corbyn are acting out of  loyalty to their former dear leader, although as many of them supported the invasion of Iraq they may also be considered culpable, some more than others; presumably they want to protect their own reputations. This may well be one reason for the attempted coup, and may be an important factor in its timing.

However, the most obvious reason for this well-orchestrated attack on Corbyn is supposed to be that the Blairites believe that having Corbyn as its leader makes the Labour party unelectable, and fear that this will cost them any chance of forming the next government and perhaps even their seats. Yet there is clear evidence to the contrary, including:

  • the surge in membership of the Labour party around the time when Corbyn became leader;
  • the large number of Labour party members and supporters who voted for Corbyn as leader;
  • decent performances by Labour in local elections and by-elections in England and Wales;
  • a narrowing in the Tory lead over Labour in the opinion polls;
  • polls showing high levels of satisfaction with Corbyn amongst Labour voters;
  • demonstrations of grass-roots support for Corbyn;
  • a recent surge in Labour membership, with many of the new members reported as saying that they have joined to support Corbyn.

Given the level of support for Corbyn, it is very unlikely that any Blairite can win a leadership contest against him. Instead, the Blairites appear to be pinning their hopes on exploiting their hopes on an ambiguity in the Labour party’s rules concerning a leadership contest. While any challenger needs to nominated by a substantial percentage of Labour MPs, it is not clearly stated whether the current leader also has to be nominated. Given what is at stake, it is likely that this issue will be decided in court. If the ruling is that Corbyn, as the current leader, is automatically eligible to stand in a leadership contest, he should win by a convincing margin. If Corbyn must be nominated by MPs, then it is unlikely that he would even be able to take part in the contest.

If the Blairites manage to force Corbyn out, by not even allowing his many supporters an opportunity to vote for him, it could be a very Pyrrhic victory. At the very least, the Labour party in England and Wales will lose a large part of its current support. (Scottish Labour should be less affected, as many of its former non-Blairite supporters have already left.) It may well be that Corbyn’s supporters will not just leave the Labour party in droves, but set up a new party and invite him to be its first leader. The MPs who have supported Corbyn might follow him into the new party. Trade unions could switch their allegiance to it, depriving Labour of a significant part of their funding. Most of the remaining Labour MPs would then have little chance of retaining their seats at the next election.

In view of all this, the 172 Labour MPs who voted that they had no confidence in Corbyn look rather like turkeys who just voted for Christmas. Their best chance of protecting their jobs would have been to back Corbyn, and to work with him to make the Labour party a real alternative to the Tories, and a party which would have a real chance of winning a majority of seats in England and Wales. Are they really all so stupid that they cannot see that it is their own actions which risk making Labour not just unelectable, but as irrelevant as the LibDems?

Hanlon’s razor is an aphorism which can be expressed as “Never assume malice when stupidity will suffice”. Being rather cynical, I am not convinced of its validity. Perhaps the Blairite MPs are selfishly trying to keep their jobs, and mistakenly believe that this can best be done by keeping Labour party policies almost indistinguishable from those of the Tories, when so many voters in England want a real alternative to the Tories. (If the Blairites really believe that right wing, neo-liberal policies are best for the UK, why did they not join the Tories?) However, I would like to propose an alternative hypothesis.

This hypothesis is that the true loyalty of the Blairites is to the Establishment. Since Labour became New Labour, its role has been to provide the appearance (but not the reality) of an alternative to the Tories, and to give ordinary people the illusion that they can, through their votes, make a difference to how the UK is governed. The task of the Blairites is to ensure either that the Labour party pursues only those policies which are to the liking of the Establishment, or else that it cannot win an election. Corbyn is a challenge to the Establishment, and they see it as their duty to defeat him, by fair means or foul. If they distract attention from the divisions within the Tory party, and the Brexit shambles, that is a bonus. If they wreck the Labour party in the process, that is acceptable to them and to the Establishment which they serve.

I do not actually believe that this hypothesis is correct; it implies that the Establishment is some kind of mega-conspiracy, rather than a set of people with common interests acting individually or in groups to protect those interests without any overall organisation. However, it would be difficult to disprove the hypothesis, given that the behaviour of the Blairites appears entirely consistent with it, and that the alternative is that they are both selfish and stupid. While most of the Blairite MPs may be considered as ‘useful idiots’ for the Tories, I cannot help wondering whether there might be a few among them who know exactly what they are doing, and are looking forward to being rewarded by a grateful Establishment with a peerage and perhaps a lucrative directorship.

What Is Most Democratic?

In a speech to the House of Commons in 1947, Winston Churchill said:

Many forms of Government have been tried and will be tried in this world of sin and woe. No one pretends that democracy is perfect or all-wise. Indeed, it has been said that democracy is the worst form of government except all those other forms that have been tried from time to time.

While I would disagree with many of Churchill’s political views (which were generally reactionary, imperialist and even racist), I would agree with him on this. A referendum is the most direct form of democracy that there is – a decision taken by the people, rather than by representatives elected by the people (or even worse, as in the UK at the present time, by a minority of the people who voted). Yet we are now in the bizarre situation where a significant number of people who voted Leave are regretting having done so, and the UK is apparently heading for a Brexit which may well no longer have the support of the majority. Apparently even Boris Johnson did not seem happy with the result; perhaps the prospect of going down in history as the Prime Minister who took the UK (or what is left of it after Scotland leaves, perhaps accompanied by Northern Ireland) no longer appeals to him.

I have seen suggestions that Cameron should not have called the referendum because EU membership is too complex an issue to be decided by voters, and that the decision should have been left to MPs or even to a panel of experts. I cannot agree with this; it would have been undemocratic. Yet I do believe that there has been a failure of democracy – not in the referendum itself, in the sense of the voters casting their votes, but in how many voters were led to decide how they would vote. For democracy to function properly, voters should be well-informed.

Well ahead of the 2014 referendum, the Scottish Government published a White Paper setting out, in considerable detail, its plans for a transition to an independent Scotland. The No campaign had every opportunity to challenge these plans, and they did. There was no equivalent from the Leave campaign; they never specified clearly whether they envisaged the UK trying to retain access to the European single market. They never acknowledged that such access (perhaps through EFTA membership, as in the case of Norway) would be potentially more expensive than EU membership, and would require the UK to accept many EU laws and regulations, and to continue allow EU citizens the right to live and work in the EU. Nor did they discuss the possibility that the EU might not be willing to negotiate any deal, and take the attitude that ‘out is out’. They did not give any realistic assessment of the damage that exclusion from the single market might do to the UK economy, or set out any proposals as to how they might minimise that damage. Had they done so, they would probably have lost quite a lot of support, and so they relied on lies about the cost of EU membership and encouraged xenophobia.

As I wrote in a previous post, I believe that Cameron blundered by not including a second question on membership of the EEA in the event of Brexit. This should have forced a proper discussion of what would follow Brexit. This could still have taken place if the Remain campaign had done a better job, instead of being Project Fear v2.0, uttering dire warnings of doom and gloom following Brexit without justifying their exaggerated, but not entirely false, claims.

In so far as there has been a failure of democracy, the UK media must take a large part of the blame for failing to better inform the public. Many people in this country are still influenced by what they read in newspapers, which are owned by billionaires with their own selfish agendas. Even the Guardian has shifted to the right in recent years. The lack of a press that covers a full range of political opinions contributes significantly to the democratic deficit in the UK.

According to an article on The Canary (http://www.thecanary.co/2016/06/26/corbyn-coup-shows-just-little-blairites-really-think-us/), many voters, particularly those in areas such as North East of England, voted Leave as a protest against an Establishment which they believe has ignored their interests, presumably without realising that Brexit will harm them more than the people they are angry with. If there has been a failure of democracy, it is not because democracy is not a good thing; it is because there is not, and never has been, enough true democracy in the UK.

One question now is whether, if there is credible evidence that the referendum result no longer has majority support, it is more democratic to treat it as sacrosanct and go ahead with Brexit, or to hold another referendum. My own feelings incline towards the latter, in principle; I believe that Parliament should respect the will of the people as it is now, not as it was sometime in the past. On the other hand, a new EU referendum which returned a majority for Remain would undermine the immediate case for a new independence referendum. I think that, for me, relief would outweigh disappointment as Scotland becoming independent as the rest of the UK exits the EU could be fraught with difficulties – but not becoming independent would be much worse.

At the moment we do not know when Article 50 will be formally invoked, we are not absolutely certain that it will be invoked, and even if it is invoked it is still perhaps possible that Brexit might not happen if the UK Government and the EU agree that it should not. It might be argued that we need to wait and see what happens, but I believe we must assume that Brexit will happen, and push urgently for a new independence referendum. If we wait until Brexit becomes absolutely certain to happen, we may find ourselves out of the EU before we can get free of the UK.

Will the EU Change Sides?

Nicola Sturgeon is keen to talks with the leadership of the EU, with a view to keeping Scotland in the EU after the impending Brexit, something that is probably only possible if Scotland becomes an independent country.

 We will also be seeking direct discussions with the EU institutions and its member states, including the earliest possible meeting with the President of the European Commission. (http://www.snp.org/statement_on_euref_result_and_it_s_implications_for_scotland)

At this stage, we cannot take it for granted that Westminster will not seek to prevent an independence referendum being held, especially given the ongoing power struggles within both the Tory and Labour parties. Nor, without an equivalent of the Edinburgh Agreement, can we take it for granted that, if Scotland votes for independence, the UK Government will accept the result and start negotiations with the Scottish Government. The attitude of the EU towards the prospect of Scottish independence could therefore be of great importance.

Prior to the 2014 referendum, what the EU said, or did not say, was generally unhelpful towards the Yes campaign. (This was exacerbated by the media mostly failing to report anything said by people associated with the EU that was at all favourable towards Yes.) There were two obvious reasons for this.

Firstly, there was already the possibility of a Brexit referendum, which is clearly something that the EU leadership would have preferred to avoid. They would therefore have been trying to avoid antagonising the UK Government. They were able to avoid giving any opinion on whether an independent Scotland would have been able to remain part of the EU, by relying on EU rules which said such an opinion only had to be given if requested by the government of the relevant member state, i.e. the UK. Now that the EU has clearly accepted that Brexit will happen, they no longer have to worry about the feelings of the UK Government.

Secondly, some countries (notably Spain) were worried that Scottish independence would set a precedent, particularly if Scotland were allowed to become a member state of the EU, which would encourage secessionist movements within their own countries. However, if Scotland secedes from the UK in order to avoid being dragged out of the EU against the wishes of a majority of its people, this cannot be seen as a precedent for Catalan independence unless Spain decides to leave the EU.

On the other side of the equation, there are two reasons why the EU may be expected to support Scottish independence in the present circumstances. The EU is an expansionist organisation; it seems happy to accept as a member any country which meets the requirements of the acquis communautaire, the accumulated body of EU law. After the reunification of Germany, the former East Germany was absorbed into the EEC (which became the EU in 1993) with very little fuss. It would be astonishing if the EU were reluctant to have Scotland, with its strategic position and oil reserves, as a member.

The EU will want to discourage other countries from leaving, or threatening to do so in an attempt to secure better deals for themselves, but they will want to do so without appearing vindictive towards the UK. By supporting the right of the Scottish people to hold another independence referendum, and then to become independent if they so choose, the EU would be standing up for democracy and self-determination, a perfectly respectable stance. At the same time, they would be sending an implied message to restive member states – leave the EU and your country might just fall apart.

Given that the UK Government will have to negotiate the best possible leaving agreement with the EU, the EU will be in a position to put considerable pressure on the UK to permit a referendum and to honour its result. Hence, I am reasonably optimistic that we shall get a second independence referendum and then independence. However, I do not trust Westminster and so, if I were in Nicola’s position, I would be very tempted to ask any EU leaders to whom I might talk one question – if the UK Government blocks a Scottish independence referendum, or refuses to recognise a vote for independence, will they uphold the democratic right of the Scottish people to choose to remain in the EU, even if that means supporting a unilateral declaration of independence by the Scottish Government?

A Different 2nd Referendum?

A petition calling for a re-run of the EU referendum has attracted more than 2 million signatures. I have read anecdotal accounts of people who voted Leave and now regret having done so. Some apparently did not realise how important the referendum might be, and may have got a shock when the result caused the pound to drop dramatically against other currencies. Others expected Remain to win, and thought they could safely vote Leave to stick two fingers up to Cameron. By now, some are perhaps realising just how dishonest the Leave campaign was; Farage has dissociated himself from the claim that Brexit would mean an extra £100m a week for the NHS.

Could a second referendum happen? The referendum is not legally binding, and Leave did win by quite a small margin. If a significant number of Leave voters have indeed changed their minds, it could well be that a new referendum would result in a win for Remain. Apparently a majority of MPs are opposed to a Brexit, and so the idea of overturning the Leave vote must be tempting. Another referendum may seem unlikely, but it is not impossible. Of course, a second referendum would have Farage screaming foul, but it was Farage who earlier said that he would not accept a 52% to 48% win by Remain as final.

In the comments on an article on Slashdot (https://tech.slashdot.org/story/16/06/24/1723201/in-the-aftermath-of-brexit-brits-google-about-irish-passport-meaning-of-eu-and-why-it-all-happened) I found the following:

There was a fair bit of buyer’s remorse around our (mostly pro-remain) offices in Manchester today, with only a handful prepared to stand by their “Leave” vote, even before management confirmed that one entire engineering department – about 600 employees, or 10% of our UK workforce – was going to be wound up because EU regulations require that the work be done by staff located within an EU member state, and the bulk of their work was coming from the EU. As you can imagine, the atmosphere in the office went downhill pretty sharpish after that…

As such consequences of Brexit become more apparent, opinion polls may show declining support for it. Could Cameron try to avoid going down in history as the Prime Minister who wrecked the UK by getting Parliament to pass emergency legislation requiring a second referendum before the UK can give notice to the EU? Could MPs throw a spanner in the works by voting for a General Election? What will opportunistic Boris do? If the UK delays Brexit, will the other EU countries lose patience and try to kick the UK out of the EU?

Probably Brexit will happen…..but who knows for sure?

Can We Afford to Wait?

Nicola Sturgeon has said that “a second independence referendum is now on the table”. I welcome the fact that she has said this so promptly and unequivocally.

We will take all possible steps and explore all options to secure Scotland’s continuing place in the EU and in the single market in particular…When the process for the UK to leave the EU begins in three months time, it is expected to take two years to leave. If the Scottish Parliament decides that a second referendum is the best or only way to protect our place in Europe, it must have the option to hold one within that timescale. (http://www.snp.org/nicola_sturgeon_s_statement_on_the_eu_referendum_what_you_need_to_know?mc_cid=f0ff861029&mc_eid=756ff63535)

The bit about ‘exploring all options’ is necessary diplomacy, but is there any realistic option other than independence or being dragged out of the EU by England? I have seen a suggestion that it might be possible for Scotland to remain in both the UK and the EU, even after Brexit. This is based on the fact that after Greenland was granted limited autonomy as part of the Kingdom of Denmark, it left the EEC in 1985. As a result, part of the current Kingdom of Denmark is in the EU and parts (Greenland and the Faroe Islands) are not. Closer to home, the Isle of Man is neither a member nor an associate member of the EU, although its defence and foreign policy are handled by the UK Parliament. Clearly, the EU has no problem with the government of a member state having some authority over a territory which is not within the EU. However, it seems unlikely that the EU would permit an arrangement whereby a primarily non-EU government (such as Westminster, post-Brexit) has direct authority over a part of the EU. Also, any such arrangement would almost certainly require Scotland to have a much greater level of autonomy than it currently has.

On the question of the timing of an independence referendum, I would argue in favour of it being held as soon as possible, for the following reasons.

  • Cameron’s replacement as Prime Minister may invoke Article 50 of the Lisbon Treaty soon after taking office, possibly in October. Brexit will follow exactly two years later, except by mutual agreement between the UK and the EU; it could therefore take place any time from October 2018 on. If it will take about 18 months from an independence referendum to actual independence (as was estimated at the time of the 2014 referendum), then we must have a referendum not later than April next year to ensure that independence can take place at the same time as Brexit, allowing Scotland to inherit the UK’s membership of the EU, and transition straight from being part of the EU as part of the UK to being a member state.
  • It is expected that many companies, currently based in the UK but trading extensively in Europe, will consider moving to other EU countries. An early referendum in which Scotland chooses to remain in the EU rather than the UK should persuade companies already based in Scotland to stay, and some based elsewhere in the UK to relocate to Scotland. Even the prospect of a referendum which is likely to lead to independence may help to protect the Scottish economy.
  • It will be easier to win an independence referendum before Brexit than afterwards, assuming the criteria for eligibility to vote are the same as those used as in 2014, as citizens of other EU countries who are resident in Scotland will still be entitled to vote. After Brexit, they will be disenfranchised.
  • With an impending Brexit to concentrate voters’ minds, a long referendum campaign should be unnecessary. There could be a risk that some of the people who voted No in 2014 and Remain, and who are saying they would now vote for independence, may become reconciled to the idea of Brexit and revert to opposing independence.
  • There is a very slight possibility that some deal or political upheaval in England might result in Brexit being cancelled before an independence referendum could take place; even if the independence referendum went ahead, it then would be more difficult to win a majority for independence.

Brexit may prove to be an opportunity for Scotland. However, that opportunity must be grasped quickly, lest it slip away.

What Now?

Leave has won and the pound has dropped in value by more than 10%; I am disappointed, but not surprised. Cameron has announced he will step down by October; I should be happy about that, if it were not that I expect that his successor will be even worse. I should be happy that there is now a possibility of a second independence referendum, but at the moment this is outweighed by my concerns as to what will happen if Scotland remains part of the UK under Tory rule, without even the EU to restrain their apparent determination to justify their characterisation as the nasty party.

The news of an impending Brexit has been welcomed by far right groups across the EU, who are now calling for referenda on EU membership in their own countries. EU leaders are concerned that the UK’s defection will cause the disintegration of the EU; they will want the UK to be seen to be worse off outside the EU to deter other countries from leaving, and so they are unlikely to give any favourable trade deals to the UK. Britain will probably not be allowed access to the European single market, whether this done through an outright refusal to negotiate or by setting an unacceptably high price for such access. Jean-Claude Juncker, the President of the European Commission, recently said that “out is out”, while ruling out any further concessions to the UK.

In theory, Brexit is not inevitable as the referendum is not legally binding, and Cameron is apparently going to leave it to his successor to start the two year countdown to Brexit by invoking Article 50 of the Lisbon Treaty. (Once this happens there will be no going back except with the unanimous agreement of all EU members.) A likely successor is Boris Johnson, who may have backed Leave more as a way to challenge Cameron than because of genuine Euro-scepticism. Perhaps he might, as Prime Minister, seek to avoid a Brexit. However, with Juncker ruling out any concessions to the the UK, it would very difficult for Johnson to justify not invoking Article 50 even if he wanted to.

There is another possible way in which Brexit might yet be avoided, if the divisions within the Tory party run deep enough. If, for example, a significant of pro-EU Tory MPs were to defect to the LibDems, the Tories could lose their majority in the Commons, which in turn might provoke a General Election. If Jeremy Corbyn were to become Prime Minister, he could argue that the election of a pro-EU government cancels out the referendum result. Unfortunately, the Tories are likely to patch up their internal feuds enough to hold onto power.

It has been suggested that Article 50 may not be invoked for perhaps a couple of years, to allow more time for negotiations between the UK and the EU prior to Brexit. This appears to be based on the assumption that the EU would be prepared to negotiate a series of trade deals, perhaps similar to those between Switzerland and the EU, to allow the UK continued access to the single market. If what Junckers has said is anything to go by, it is more likely that the EU will give the UK a simple choice – either stay (with no new concessions) or leave completely. Indeed, it has been suggested that if the UK delays the formal invocation of Article 50 too long, while still maintaining its intention to leave the EU, the EU will move to end the uncertainty by expelling the UK or at least putting pressure on the UK to go.

The assumption now must be that Brexit will happen towards the end of 2018. Fortunately, a clear majority of voters in Scotland voted Remain, and so there is a strong moral case for a second independence referendum. With one of Project Fear’s main arguments against independence turned on its head, there is a very good chance of getting the correct result this time. I sincerely hope that Scotland can get out of Westminster’s grip before we suffer too much damage from the impending Brexit and continuing Tory misrule.

The Wrong Referendum?

Although I have serious reservations about the EU, I will vote Remain in the forthcoming referendum. I detest Cameron, Osborne and their cronies, but Johnson, IDS, Gove and Farage are at least as bad in my view. I cannot think of any prominent member of the Leave campaign for whom I have any respect; all the political leaders I respect are in the Remain camp.

I believe that, while some of the scare stories emanating from the Tory Remain campaign are greatly exaggerated, they are not entirely false, and that the UK economy will suffer following a Brexit. If the Tories remain in power they will use any economic downturn as an excuse to impose even more of their austerity, which always seems to make the richest people even richer. I also believe that Scotland will be more badly affected than England, partly because Scotland does better in terms of EU funding. It is likely that, without the EU to restrain them, a Tory government will repeal the Human Rights Act, and will reduce workers’ rights still further.

I have found the Leave campaign to be deeply distasteful because of its emphasis on immigration; if it wins, it will be because it has successfully appealed to the xenophobia and downright racism which underlies much of the British and English versions of nationalism. It may even have contributed, albeit unintentionally, to the brutal murder of Jo Cox. The fact that far right organisations such as Britain First support Leave is in itself a good reason for voting Remain.

As far as Scotland is concerned, I believe that the best possible outcome of the referendum would be a Leave vote which leads to a second independence referendum and Scottish independence, while the the worst possible outcome would be a Leave vote which does not lead to Scottish independence. I will not vote Leave in the hope of a second independence referendum being triggered for two reasons. Firstly, to argue for another referendum, we need not only a UK vote for Leave but also a clear majority in Scotland for Remain. Secondly, I think it it is possible that the UK government will either block an independence referendum, arguing that constitutional matters are reserved to Westminster, or refuse to recognise the result if it is not to their liking.

I am convinced that Cameron blundered with the Scottish referendum, in that he only signed the Edinburgh Agreement because he was confident that Scotland would vote to remain in the UK by such a margin that the independence movement and the SNP would suffer a setback that they would take many years to recover from. Arguably he has blundered again, by the allowing the EU referendum to take place to try to settle differences within the Tory party and see off competition from UKIP, but perhaps he felt that he had no alternative. However, I believe that he made a serious tactical error (unless he secretly wants a Brexit) in not insisting on a second question on membership of the European Economic Area (EEA) following a Brexit. This has allowed a thoroughly dishonest Leave campaign which means that those who vote Leave will have voted for a proverbial pig in a poke, because there has not been nearly enough discussion of what will really happen after a Brexit. A question on the ballot paper on EEA membership would forced that discussion.

One possibility might be for the UK to rejoin the European Free Trade Association (EFTA), and to follow the Norwegian model. (Given the UK’s record within the EU, and the fact that the UK’s population is well over four times that of all four current EFTA members combined, it is far from certain that EFTA would allow the UK to join and dominate it.) Along with fellow EFTA members Iceland and Lichtenstein, Norway has access to the European single market through the EEA, but in return it has to pay nearly as much to the EU as it would as a full member of the EU, without receiving anything back in the form of CAP payments or EU grants. Norway has to abide by many of the EU’s laws and regulations, but has little say in setting these. Most crucially in view of the Leave campaign’s emphasis on immigration, Norway is bound to allow free movement of workers within the EEA; it cannot restrict immigration from EU member states.

A second possibility would be to copy Switzerland, which is a member of EFTA but not of the EEA; instead, it has negotiated access to the single market through a series of bilateral agreements. Perhaps this is what the Leave campaign has in mind when they recently announced that they were confident that the UK could negotiate trade deals with Europe by 2020; EFTA membership would presumably not be essential for this. However, there is no reason to expect that the EU will offer the UK acceptable terms. There is concern among EU leaders that a ‘successful’ Brexit could lead to other EU member states following suit, and possibly even to the disintegration of the EU. Whether or not these concerns are justified, it would appear to be in the EU’s interest either to deny the UK any privileged access to the European single market, or to extract such a price for it that other EU countries will not be encouraged to follow the UK’s example.

I suspect that many who vote Leave will do so under a vague impression that a post-Brexit UK will be able to have its cake and eat it, by not having to make payments to the EU or obey EU law, but somehow still retaining access to the single market or else avoiding the damage to the economy that would result from being excluded from it. Had they been forced, by a second question on the ballot paper, to consider more fully the question of EEA membership, they might have been less inclined to vote Leave.

This referendum is not the end of the story. If Remain wins (as, on balance, I hope it does), it will only be by a narrow margin. (If the Scottish vote tips the balance in favour of Remain, I shall relish the frustration of the English nationalist component of the support for Brexit.) The Euro-sceptics amongst the Tories will not accept the verdict, but will continue attacking Cameron. With luck, the Tory party will split, or suffer enough defections to UKIP to destroy its majority in the Commons. Perhaps, one way or another, there will be a General Election. If Leave wins, the fighting within the Tory party may well continue, with the pro-European Tories arguing for EEA membership and the Euro-sceptics wanting as little to do with Europe as possible.

The sad thing about all this is that if fewer people had let themselves be intimidated by Project Fear or duped by Brown’s infamous Vow, we in Scotland would have been largely unaffected by all this. I would argue that, in the event of the UK voting for a Brexit, all supporters of Scottish independence should campaign for another independence referendum. It is likely that the EU will want to retain Scotland as part of the EU to limit the adverse consequences of a Brexit, by giving the message that if a country leaves the UK that it might just break up. In any case, an expansionist organisation such as the EU will want to give up as little territory as possible. The UK will be trying to negotiate the best possible deal with the EU, and the EU could use this to put pressure on the UK government to allow an independence referendum, while promising that an independent Scotland could inherit the UK’s unwanted EU membership. This could be our best chance, and I would suggest that even those who would like to see Scotland as an independent country outside the EU should consider voting Remain. After all, an EU member state does not need permission from the EU to hold a referendum on EU membership, and member states have a right to leave the EU by giving two years’ notice. It would be much easier for an independent Scotland to leave the EU than it is for Scotland to leave the UK.