by Sionaidh Douglas-Scott
THIS week has been very busy, both for Britain’s relationship with Europe, and for Britain’s intra-governmental affairs.
Theresa May and Nicola Sturgeon met on Monday, and on Tuesday the Scottish Parliament voted in favour of a new independence referendum.
On Wednesday, the UK’s Article 50 notification of withdrawal letter was finally delivered. Thursday sees the UK government publish its ‘Great Repeal Bill’ White Paper, and on Friday, the EU is due to publish its draft Brexit guidelines. Was there ever such an unsettled time for the British Constitution?
Brexit lies at the root of all of this, and now the clock starts ticking. The UK has two years to unravel its relationship with the EU and attempt to forge a new one. Contrary to what some expected, the Article 50 letter was not a terse affair. Depending on one’s viewpoint its content, and in particular its seven proposed “principles for our discussions”, might seem ambitious, or alternatively, unrealistic. The Prime Minister states that she knows there can be no “cherry picking”, yet at the same time proposes a Free Trade Agreement “of greater scope and ambition than any such agreement before it so that it covers sectors crucial to our linked economies such as financial services and network industries” – singling out these industries at least for special treatment. If these negotiations fail, the UK will leave the EU in March 2019 without a deal, and Theresa May acknowledges that “the default position is that we would have to trade on World Trade Organisation terms”. This is the feared ‘cliff edge’ and would mean 10 per cent tariffs on car exports and high duties on agricultural goods exported to EU markets, a very unwelcome levy on Scottish exports.
If the UK were excluded from accessing the single market, the Article 50 letter seems to threaten to withdraw the UK’s security cooperation with the EU in language some EU sources are already calling “blackmail”.
All in all, there are reasons to be anxious about Scotland’s place in the negotiations. The letter stresses that “we will negotiate as one United Kingdom, taking due account of the specific interests of every nation and region of the UK as we do so”. However, it is unclear that the UK Government has given any meaningful consideration to the Scottish Government’s proposals for a differentiated solution for Scotland, as published in its paper ‘Scotland’s Place in Europe’. No mention at all is made in the Article 50 letter of any particular arrangements for Scotland, although Northern Ireland is singled out as a special case. Presumably this means the UK Government has rejected the Scottish Government’s proposals. This leaves very little space for Scotland to protect its interests in the withdrawal process.
The Article 50 letter expresses the belief that both the Article 50 withdrawal negotiations and a comprehensive UK-EU trade agreement can be negotiated within two years. This timescale has been consistently rejected on the EU side, which insists on consecutive negotiation of the two deals. If an EU-UK trade agreement is not concluded in two years, then the consequences of Brexit may not be apparent for quite some time – and, in the meantime, says London, any proposed Scottish independence referendum may not go ahead.
The Article 50 letter does state that “it is the expectation of the Government that the outcome of this process will be a significant increase in the decision-making power of each devolved administration”. However, this will be just part of the gargantuan repatriation of a deluge of EU powers from Brussels to the UK by means of a ‘Great Repeal Bill’ (or Bills). Agriculture, environment and fisheries are currently matters not reserved to the UK, but this does not mean competence over them may straightforwardly be returned to Edinburgh on Brexit. Indeed, there is already disagreement over whether EU powers should be delivered to Scotland or instead be managed at UK level.
It will be important for Scotland to keep a close eye on the minutiae of this, and therein lies a formidable challenge for Scotland. How to best protect Scotland’s interest in the multi-dimensional phenomenon that is Brexit? This will require astute, canny and judicious handling of what is at least a three-pronged affair, namely: the withdrawal negotiations (in which Scotland’s part is by no means assured) the Great Repeal Bill (in which care must be taken to ensure in the huge complexity of legislation, Scotland’s legal patrimony is not ignored) and ultimately, the challenge of an independence referendum. In this context, the term “multitasking” seems woefully inadequate.
Sionaidh Douglas-Scott, Anniversary Chair in Law, Queen Mary University of London. Special Legal Advisor, Scottish Parliament European External Affairs Committee
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