A tale of two Unions: can circles be squared by a new devolution settlement?
This was written for the blog of the Constitution Unit of University College London.
In the wake of the Brexit vote there has been much discussion about the possibility of Scotland and Northern Ireland, where there were Remain majorities in June, preserving closer relationships with the EU than the UK as a whole. The idea that Scotland and Northern Ireland could be entirely exempted from Brexit lacks credibility, but that in an increasingly devolving UK demands from Scotland and Northern Ireland for some sort of continuing relationship with the EU should be examined closely. Failure to take these suggestions seriously could have significant implications for the future of the British Union.
No one can have been surprised that fundamental political fault lines opened up again in the shock of the Brexit referendum result. As the Westminster government struggle to find a platform to stand on to trigger Article 50, in Scotland the issues are being treated with considerable caution and in Ireland with something close to despair. Viewed from Westminster, each is still a sideshow because a brutal binary choice between the continuing UK and continuing membership of the EU is one they are not ready to face. Indeed, since the referendum polling in favour of fundamental constitutional change has barely shifted. In Scotland support for independence still scores a few notches under 50 per cent, well short of the SNP’s target of 60 per cent for calling a second independence referendum. In Northern Ireland, while Sinn Féin promptly called for a border poll, an Ipsos MORI opinion survey for the BBC released published in early September found 63 per cent in favour of the continuing UK, only two points below a similar survey three years ago, with a resounding 83 per cent claiming the Brexit result did not affect their opinion.
But it would be a mistake to believe that in the end the Scots and all kinds of Irish will tag along behind England’s lead. New thinking is emerging that might allow the ‘nations’ to preserve relationships with the EU which are compatible with an increasingly devolving UK that has severed its main institutional links with the EU at the centre.
Constitutionally, the argument that their Remain majorities might win Scotland and Northern Ireland straight exemptions from the overall referendum result tout court lacks credibility. The ‘reverse Greenland model’ has its attractions but the difference in scale and complexity with the British Isles makes it difficult to follow beyond the basic notion.
But could demands in both countries for their Remain majorities to qualify them for a continuing relationship with the EU be accommodated within a UK embarking on a new stage of devolution?
Irish angst, north and south
In Ireland there is a bigger but linked question. For nationalist Ireland north and south, the EU has an emotional significance beyond the literal terms of the Lisbon Treaty and the Good Friday Agreement. EU membership became the supra-national bond that brought both parts together and provided the essential context of equality between nation states for a reconciling relationship. Brexit sets all that back. Although supporting Leave in the referendum, the DUP are entirely aware of the dangers and showed no discomfiture at being on the losing side locally.
The emerging outlines of Article 50 terms – limited access to the single market, an end to the customs union, restrictions on free movement – are, to put it mildly, not easy to reconcile with bland British assurances about a continuing open Irish border (now tellingly qualified as ‘as open as possible’).
At the recent annual British-Irish Association conference in Oxford, there was much talk of ‘flexibility’ and ‘variable geometry’. The Taoiseach Enda Kenny tried to square the circle of continuing Irish commitment to an EU of the four freedoms and a reconciled relationship with a Brexit UK that would keep the border open and preserve free movement between these islands. For the island of Ireland, three principles of the Good Friday Agreement are to be upheld: continuing access to EU peace funding (£425 million up to 2020), free trade within the island of Ireland (in the Irish view, guaranteed for the North as well, for everybody there can opt for Irish and therefore EU citizenship anytime they like); and – just for the record – the continuing alienable right to hold referendums on Irish unity, but long fingered to sometime in the future.
The implications are more than visionary. The impact of Brexit on trading relationships if tariffs return would be extremely severe. In 2014, exports of goods and services from the UK to Ireland totalled £27.86 billion. And 55 per cent of all of Northern Ireland’s exports go to EU markets, with the Republic being its single biggest export destination.
Although they have yet to disclose their hand as they in turn await disclosure by London, the Irish are willing to contemplate acting as the conduit for continuing EU Peace and structural funding for the North. This is a plausible line as many projects already have cross-border penetration. It could take on added importance if fears are realised that British compensation for the loss of EU funding, including CAP payments to the devolved governments, will cease after 2020.
But the fundamentals of free movement and free trade look even tougher nuts to crack. It is being quietly conceded that passports for everybody to cross the border, and customs checks digital and physical, are real possibilities. But what cannot be contemplated, it seems, is the return of customs huts and boards reading ‘HM Customs’ and ‘Custaim Stad’ across the road at the physical border. These would be a prime target for dissident republicans and would have ripple effects throughout the area. The Irish will plug the peace process for all it’s worth with the EU and the claims of Irish citizenship rights on both sides of the border with the British. The prospects of success are impossible to evaluate at the moment. The reaction to complete failure in Ireland hardly bears thinking about, however.
Yet another settlement for Scotland?
For Scotland, similar ingenuity is being considered to soften the harsher implications of Brexit. The chance of a continuing relationship with the EU opens up when powers on the environment, competition and agriculture and fisheries return from Brussels straight to Edinburgh, Cardiff and Belfast. Brexit, the argument runs, is a game changer in the independence debate. The EU safety net is removed. While the circumstances do not favour independence, it is possible to imagine giving devolution an international personality and entering a partnership with the EU on other devolved matters as well such as health, workers’ rights, and student finance. The implications for UK governance and the devolution financial settlements would be fundamental. Future payments back from the EU would mean payments into it by the devolved governments. ‘Call it federalism if you wish’, writes Professor Jim Gallagher in the Daily Record. This is a case consistent with Gordon Brown’s recent conversion to federalism and a new financial settlement for the whole UK.
How would Westminster react?
There is no sign yet that Theresa May’s government, preoccupied with devising the main Brexit strategy, have begun to absorb these still very tentative but constitutionally significant ideas. They are unlikely to appeal to the fundamentalist Brexiteers. But they are sure to push their way to the forefront of debate when (or if) the representatives of Scotland, Wales and Northern Ireland take their places at the table before Article 50 is triggered. It will be a messy debate. Not all the arguments against them are pro-Brexit.
Peter Sutherland, an Irishman with unrivalled experience as a former EU commissioner and the founding head of the World Trade Organisation (and an honorary British knight), dismisses the mooted accommodations out of hand:
‘Leaving the customs union means a physical border in Ireland and the four freedoms are an indissoluble bond. It is inconceivable that separate arrangements for devolution will work.’
Sutherland’s logic leads to another test of public opinion at some stage, either by general election or a second referendum or both. Mrs May seems committed against them. There is also an element here of the Celtic tail wagging the Saxon dog that will raise the hackles of some Brexit supporting Conservatives. But the new ideas circulating in Scotland and Ireland should be developed. Failure to take them seriously could have significant implications for the long term future of the British Union too.