Ronan McCrea: Independent Scotland as far away as ever

Brexit may have increased support but has made it much more difficult

Nicola Sturgeon, Scotland’s first minister and leader of the Scottish National Party. Photograph: Andy Buchanan/Getty Images

Nicola Sturgeon, Scotland’s first minister and leader of the Scottish National Party. Photograph: Andy Buchanan/Getty Images

 

The election of another pro-independence majority in the Scottish parliament underlines the degree to which Brexit has imperilled the unity of the United Kingdom.

However, despite the victory of the Scottish National Party (SNP) and their pro-independence allies, the route to separation from the UK remains strewn with legal, political and economic obstacles that, counterintuitively, Brexit has made more difficult to overcome.

Legally, it is clear that the question of Scottish independence is a matter for the UK parliament. The 2014 independence referendum happened only because Westminster agreed to give a one-off power to the Scottish parliament to hold a vote. This power lapsed once the vote was held.

Ronan McCrea is professor of constitutional and European law at University College London

British prime minister Boris Johnson has made it clear that he will not agree to hold a further referendum any time soon and first minister of Scotland and SNP leader Nicola Sturgeon has ruled out following the Catalan example of an illegal vote. While this means that Scotland will not see equivalents of the dramatic and troubling events in Catalonia such as the imposition of lengthy prison sentences on leaders of Catalan pro-independence political parties, this does not mean that the UK authorities can put off the issue of independence indefinitely.

Unlike Spain the UK has accepted the principle that Scotland can become an independent state. If pro-independence forces win election after election, it will eventually become untenable to refuse a second vote.

Consultative referendum

Even in the short term, while it is clear the UK parliament has exclusive jurisdiction over the legal issue of independence, the Scottish government has other options. One such option would be to hold organise a consultative referendum that could generate a political, if not a legal, mandate for independence that would be hard to resist. Whether organising such a vote is within the powers of the Scottish parliament is unclear and is likely to be hotly contested before the UK supreme court.

Scottish voters may not have expected that their 62 per cent remain vote would stop the Brexit process altogether

That said, even if such a vote goes ahead, the obstacles in the way of independence remain considerable. Pro-union parties which together still command about 50 per cent of the vote may refuse to participate.

Furthermore, Brexit itself may complicate the task of gaining a majority vote in favour of independence. This is somewhat counterintuitive. On one level Brexit makes the case for independence easier.

Scottish voters may not have expected that their 62 per cent remain vote would stop the Brexit process altogether. But they could reasonably have thought that, in a state based on union between different nations, some account would be taken of the wishes of their nation and a moderate form of Brexit would be pursued.

Instead, the Johnson government gave no weight to Scottish desires and pursued a hard Brexit, thus increasing feelings of alienation in Scotland and thereby fuelling demand for a second referendum.

However, this hard Brexit may also make winning that referendum more difficult for the pro-independence side. With Johnson’s hard Brexit in place, if Scotland leaves the UK and joins the European Union there will be a hard economic border between Scotland and the rest of the UK.

The requirements of EU law mean that leaving the UK and joining the would be very disruptive economically, at least in the medium term

Scotland’s economy is very closely tied to the UK. Scotland exports more than three times as much to the rest of the UK as to the EU. This means that independence would result in an enormous economic hit, even before one considers the very considerable difference between level of public spending in Scotland and the tax raised there which is currently bridged by funding from the rest of the UK.

EU single market

This has caused some pro-independence figures to morph into Scottish versions of the Brexiteers who insisted that the UK could ‘have its cake and eat it’ by having the freedom to set their own rules and have full access to the EU single market.

The significant obstacles now faced by UK businesses exporting to the EU reveals this ‘cakeist’ approach to be a fantasy. It is equally fanciful to suggest that Scotland could leave the UK, join the EU and still have unfettered access to the UK market. As an EU member Scotland would be required to police the EU customs border and to check ensure goods and services from the EU comply with the requirements of EU law.

In 1973, Ireland was too economically dependent on the UK to have joined the EEC on its own. Fifty years of membership loosened economic ties so that when Brexit came it made both economic and emotional sense for Ireland to choose its links to the EU over its links to the UK.

Scotland in 2021 is not in that position. The Scottish economy is heavily dependent on the UK. While Brexit has fuelled the emotional case for independence the requirements of EU law mean that leaving the UK and joining the would be very disruptive economically, at least in the medium term.

That said, nationhood and independence are not all about money. Most people in Algeria in the 1960s or Ireland in the 1920s did not care that independence might have an economic cost, they wanted to be free and, as Robert Emmet said, to take their place among the nations of the world. Given the very different history of Scotland’s membership of the UK, whether the Scottish people have a similar determination remains to be seen.

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