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.


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.

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.

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.