The central promise of Brexit was to ‘take back control’ or, in more technical language, regain sovereignty. Initially, this was expressed as the sovereignty of the Westminster Parliament but, after the referendum, this changed to the sovereignty of the ‘the British people’. Either way, membership of the EU was seen as incompatible with the idea of a sovereign nation-state.
Viewed from the periphery, however, the United Kingdom has never been a unitary nation-state but a plurinational union. In the last twenty years, it has become an asymmetrical quasi-federal state in which authority is shared between orders of government. It does not have a simple unified people or demos. Nor does it have a single shared destiny or telos. These are, rather, matters of continued debate as our largely unwritten constitution evolves. The Northern Ireland settlement explicitly provides for the province to leave and join the Irish Republic if a majority so wishes. Scotland’s right to self-determination was recognized in the independence referendum of 2014, although there is less agreement about the conditions in which it might repeat the exercise.
From this perspective, the United Kingdom and the European Union, far from being incompatible, are remarkably similar. Both are unions rather than unitary states, and their future development in continuously under debate.
Indeed, EU membership has provided an important external framework for the devolution settlement itself. Ideas of shared sovereignty and negotiated order, rooted in the European order, complement Scottish ideas which have a long history and have been revived in the context of devolution. The Westminster doctrine of absolute sovereignty and supremacy, on the other hand, has proved a weak basis for understanding both devolution and Europe.
It is the EU’s single market that has secured the unity of the UK’s own internal market, allowing a more expansive settlement than would otherwise have been possible, without framework laws restricting what the devolved governments can do.
Human rights are secured through the EU Charter of Rights and the European Convention on Human Rights (ECHR) (which comes under the Council of Europe). These detach human rights from nationality. Politicians wanting to replace them with a British Bill of Rights have never quite grasped how problematic it would be for many people in Scotland and Northern Ireland to insist that basic rights be attached to the Britishness agenda.
Perhaps the most dramatic effect of Europe has been the virtual disappearance of the Irish border. Certainly, it still exists in a legal sense but the single market has removed all obstacles to the movement of goods and services, while people move freely under the Common Travel Area as well as European mobility provisions.
The referendum results have added to the tensions. While both England and Wales voted Leave, Scotland voted Remain by 62 per cent and Northern Ireland by 55 per cent. Nationalists in Northern Ireland voted Remain by more than 80 per cent while a smaller majority of unionists voted Leave. None of these figures has changed substantially in polls taken over the last three years. These strikingly different mandates mean that Scottish independence and Irish unity are back on the agenda. Yet neither provides a simple solution. With Scotland independent and in the EU and England outside, there would be a hard border between the two, which nobody wants. In any case, almost a third of independence supporters voted Leave, although that may be changing – the SNP lost many of its pro-Remain voters in the 2017 General Election.
With the European framework disappearing, there has been a lot of work done to replace them with new UK-wide frameworks. This has proved extremely difficult. The UK Government’s first response was to take back to Westminster all the EU competences that are devolved to Scotland. They would ‘release’ back those they did no need. There can be no better illustration of the misunderstanding in London of the nature of devolution. Both the Scottish Parliament (unanimously) and the National Assembly for Wales refused to accept this and the UK Government had to retreat. The final version of the EU Withdrawal Act, however, still allows Westminster to take back some powers, if necessary without the consent of the devolved legislatures. There are discussions at civil service level of what UK frameworks might be needed in matters such as agriculture, fisheries and the environment and a separate track of discussions around the concept of the ‘UK internal market’, a difficult and politically contentious concept. None of these have been concluded. While the Welsh Government has pushed for common frameworks and a UK Council of Ministers to give the devolved governments a strong role, the Scottish Government has stressed getting the powers back and forging their own policies, with cooperation on strictly voluntary basis.
Brexit has strained the constitution in other ways. The Scottish and Welsh governments have complained about not being fully involved in the process – the Northern Ireland Assembly and Executive have not been functioning for some two and a half years. For twenty years, the Sewel Convention, that Westminster would not ‘normally’ legislate in Scottish, devolved matters or change devolved powers without the consent of the Scottish Parliament, had been respected. It was not legally binding, in spite of having been put in the revised Scotland Act in 2016 but neither side really wanted to test it. The EU Withdrawal Act was the first occasion on which the convention was breached in Scotland. The Act itself introduced yet another consent mechanism, providing for the devolved legislatures to consent or not to any powers being taken back. Unhelpfully, however, it spelled out the real effect of the convention is starker terms. If the Scottish Parliament consents, the powers will be taken back; if it does not consent, they will also be taken back; and if it does not declare itself either way, the powers will be taken back. None of this changes the strict legal position, as Westminster has always insisted that it can do what it likes, but it does ram home the weak safeguards that exist for devolved powers.
The Westminster Parliament’s inability to handle Brexit has provoked a political crisis, which has become a constitutional crisis, as Parliament cannot even agree how to proceed to find a way out before the October deadline. That deadlock as the centre has distracted attention from problems across the UK, with the exception of the Irish border question, which is on the agenda because Ireland, as a member state, put it there. In less fraught times, the UK appeared set on a path to its own form of asymmetrical federalism, nested within a wider European framework. It was marked by ambiguities and abeyances that allowed it to develop and bed down without necessarily agreeing on the fundamentals. Devolution changed everything at the periphery but almost nothing at the centre. Perhaps these divergent understandings of the constitution were necessary to allow it to happen at all. Whatever happens with Brexit, however, these gaps in the constitution have been exposed and will increasingly demand clearer rules and the recognition that power has shifted and that the centre cannot always get its own way.
Michael Keating is Professor of Politics at the University of Aberdeen and Director of the Centre on Constitutional Change
