The Union of 1707 and the art of the deal

For Scotland, Britain was built upon a bargain. Renewing that bargain needs England to engage

Scottish exemplification of the Treaty of Union. Public domain: sourced from Wikimedia Commons

One way or another, devolution as an idea and a reality has a long history in the United Kingdom. The issue of Irish Home Rule pushed the UK’s constitutional norms to its limit (and far beyond in Ireland). Devolution had an unhappy 50-year history in Northern Ireland until 1972. Calls for a Scottish legislature surfaced many times before one was finally created.

Nonetheless, Scottish (and Welsh) devolution in 1999 was a radical act with radical implications. Some who wish to keep the UK together regret it, at least within Great Britain. The devo-sceptics often paint it as an ahistorical rupture. But the historical backdrop to devolution is far from the most important sense in which it reflects a unionist tradition. And their objections miss both the need for a democratic expression of Scottish distinctiveness and two of the hardest challenges the Union faces now.

A new variation on an old theme

Britain was built upon a bargain. Scottish politicians secured Scotland’s distinctiveness in religion, law and administration, along with free trade throughout the new kingdom and its colonies. It was an incorporating union, with one parliament at Westminster. But it was altogether unlike the Tudor Laws in Wales Acts. The legislation of 1536 and 1543 incorporated Wales into the Kingdom of England. The Union of 1707 created a composite state, with a composite nation grafted on over time. Britain in its modern sense was forged in an Anglo-Scottish crucible.

That fact has expressed itself in different ways at different times. In the eighteenth century, the Church of Scotland, the Convention of Royal Burghs and local elites played their parts. The old Scottish Office was set up as far back as 1885 and expanded as the years went by. The Church of Scotland Act 1921 effected a compromise between an anti-Erastian Kirk and a sovereign Parliament. The UK never really had one National Health Service. The Tories stood as Unionists in Scotland until 1965. (They fought elections in the 1950s pledging to protect Scottish distinctiveness against socialist centralisation.)

Legislative devolution is different, because it creates an autonomous centre of political power. But it’s still in a long line of accommodations between the British state and the Scottish nation. It’s also a balance to English preponderance within the Union. It isn’t different because British politicians made a terrible mistake. It’s different because it’s a response for a democratic rather than an oligarchic age.

I doubt Britain could ever have avoided giving Scottish distinctiveness democratic expression. (And I don’t think it should. Devolution made good democratic sense.) But two consequences are, in my view, particularly underappreciated.

Shrinking, but not improving, the British state

First, unlike previous measures, devolution does nothing to make how the British state itself operates more appealing to Scots. It only reduces the scope of its activities. But despite the role of Scottish MPs, British politics became less Scottish over time. Devolving more powers often made sense in policy terms. But it also took up all the political space marked ‘reducing Scottish discontent’.

UK governments show little interest in recognising a devolved role at the centre. The Welsh Government’s call for a UK Council of Ministers falls on deaf ears. They show no sign of, say, thinking creatively about our second chamber. (Why, unlike almost any other state with a territorial challenge, don’t we even discuss some extra seats for the smaller nations in a reformed Lords?) And the current UK Government seems determined to undermine the conventions on which devolution rests.

Pushing the Union’s balancing act into the limelight

Second, as a new political system within the UK, devolution means politicians — and political noise. It has made the balancing act on which the Union of 1707 relies conspicuous outwith Scotland. That hasn’t been the case most of the time. But whether devolution is ‘fair to England’ is now a live question, with major consequences.

A century before the Union of the Parliaments, James VI’s Scottish courtiers attracted the ire of some English MPs. The spasm of Scotophobia surrounding Britain’s first Scottish Prime Minister is well-known. ‘Into our places, states, and beds they creep/They’ve sense to get, what we want sense to keep’ was only its most famous expectoration. But that kind of thing declined as the Union bedded in. And England mostly paid little attention to how Westminster acknowledged Scotland’s distinctiveness. That has clearly changed.

Symmetry versus balance

Anyway, reforming a democratic UK so the devolved nations feel they have more of a stake needs proper consent in England. As a result, tackling the first problem means facing the second head-on. And the view that fairness lies in symmetry — embodied in ‘English votes for English laws’ — will crash headlong into the view that the UK needs to balance England’s size.

Neither view is objectively wrong. But taken to their logical conclusion, the two are incompatible. Many in Scotland take too little account of the fact that the rest of the UK is not a mere backdrop for Scotland’s debate. But most people in England — understandably, as almost no one has suggested otherwise — don’t grasp that the debate involves them too.

One way to look at the American Revolution is to say the British and their colonists were each confronted by the other’s real view of their relationship. The British idea of parliamentary sovereignty over the Empire and the colonial view of their legislatures’ rights within it had diverged. And pitted against each other, they proved incompatible.

There is a risk of something similar nearer home. But I don’t believe the gap between English and Scottish understandings of the state we share can hold forever, unarticulated and unaddressed, in a democratic era. Any modern Union bargain for Scotland will have to combine a high degree of self-rule with a fair degree of shared rule. Those are core features of federalism, whether the UK can ever be remade into a federation or not.

I don’t know whether the people of England would agree to anything like that or what they might want in return. But in the long run, the survival of the Anglo-Scottish bargain may depend upon their answer.

This post was originally published on Medium.com on 21 February 2021.

State aid and the union state

Defending the Union is not the same as owning the Nats. Tory disdain for devolution post-Brexit endangers it even further

Constructing a UK internal market needs time and attention too

Some nationalists claim the United Kingdom has no such thing as an internal market. Granted, it has no formal project branded ‘UK single market’. But its four parts have sent MPs to Westminster longer than modern regulatory states have existed. Britain built an integrated domestic market long before it joined the then EC. Until 1999, EU law played no specific role in preventing divergence. And the UK has an unusual lack of internal barriers for a large state.

The problem is real, but the end doesn’t justify the means

When devolution arrived, a mix of reservations to the UK Parliament and EU law served to keep it together. That EU framework ceases to bind the UK from 1 January 2021, leaving our internal market vulnerable to erosion. In areas which are within devolved competence but constrained by EU law, ever more barriers could result.

As Canada shows, states can easily end up with major internal economic barriers, which you then have to try to negotiate away. In the UK this would do great economic damage, at least outside of England. Scotland, Wales and Northern Ireland all have the rest of the UK as their main external market, and we are all deeply integrated.

Data from the Scottish Government, Northern Ireland Statistics and Research Agency and UK Government Internal Market White Paper. Figures do not add to 100% due to rounding. Flag images from Wikipedia.

So the issue is serious, as all three devolved administrations say they accept. It’s hard to see how you address it without action at a UK level. So far, so reasonable: hence a White Paper. It’s also true that even with common frameworks, many areas currently regulated at EU level will fall entirely to the devolved legislatures.

Nonetheless, powers devolved within an EU framework aren’t the same thing as reserved powers. Constitutionally, the UK Government wants to reserve some things which are currently devolved. The Sewel convention is clear: the UK Government shouldn’t do this without consent. That convention is core to making devolution work. Parliamentary sovereignty and decentralised power don’t easily mix. Sovereignty needs self-restraint for them to rub along.

Further, the EU doesn’t work in the same way as the UK. EU lawmaking is far more consensual and member states are part of the process. EU law is also likely to give member states more room for manoeuvre than UK replacements. The UK has no equivalent to directives as opposed to regulations, for instance. UK institutions are likely to be far more single-minded and far less prone to compromise. That means an ‘equivalent’ reservation in any given area could well mean less devolved autonomy in practice.

The principle of agreeing common frameworks with the devolved administrations isn’t new or controversial. Reserving subsidy control (state aid) makes sense in policy terms — though that doesn’t let us off the constitutional hook of consent. But the White Paper proposes new cross-cutting constraints on devolved policy:

the Government now proposes a Market Access Commitment, which will enshrine in law two fundamental principles to protect the flow of goods and services in our home market: the principle of mutual recognition, and the principle of nondiscrimination.

I don’t necessarily oppose some version of this. But it has major implications, depending on how it’s drafted and which sectors are excepted. It could well mean major new constraints, over and above EU-derived ones, in devolved areas. We’ve always had regulatory divergence within the UK in some areas. Building regulations differ in Scotland and England, for instance. Will changes now be subject to a market access test?

The White Paper also takes a profoundly asymmetrical approach, with policy in England as the implicit norm. The legal market access commitment will only apply to devolved policy. But policy in England (or England and Wales, or Great Britain) in the same areas could create market barriers too. How far will the UK Government constrain its own approach, and proposals to Parliament, in these areas? Could ministers at least have to certify whether such proposals discriminate against other parts of the UK, for instance?

Would this mix — some EU constraints gone, some powers reserved, a new general constraint — mean more or less de facto power for devolved institutions? I don’t know. I don’t think anyone can know without seeing the actual drafting. Even that’s not enough to gauge how the market access commitment will pan out in practice. I do know that it has huge implications for how devolution works. It’s a big constitutional change: it merits proper discussion. And in our system, convention is quite clear that consent is required.

So the Scottish and Welsh Governments have every right to be outraged by the idea of imposing it upon them. And to consult upon it for a mere four weeks (a third of the time to consult on a reformed judicial pension scheme, for instance) is outright farcical. The problems with devolution and our home market have been discussed for over four years. And the Brexit cliff-edge on 31 December is of the UK Government’s own (perverse) making. Yes, the SNP always takes any excuse to invent grievances. That doesn’t make it right, or good for the Union, to give them real ones.

This isn’t a first, either. Since 2016, the Sewel convention has been ignored several times, and not just for Scotland. Whatever you think of the arguments for an exception in any given case, it’s becoming a pattern. Among multinational states, the UK seems unusually willing to just override devolved competence. At the same time, secession is unusually — possibly uniquely — easy to seek. In a union state where a British nation overlaps with several other, older nations, that’s a strikingly unstable mix.

Voice, choice and consent

The mix is particularly dangerous to the Union in Scotland. Much of independence’s appeal comes down to agency — speaking to a view that Scotland has no real say in Britain. In response, UK governments yo-yo between ever-looser union and centralising confrontation. Neither works. On the one hand, there’s a limit to how far you can or should devolve within a state. On the other, preserving the Union and owning the Nats are not the same, though a certain sort of Tory seems unaccountably convinced that it is. If you don’t want the UK to break up or become a constitutional God of the gaps, you need to make its central institutions more legitimate in Scottish eyes.

Brexit has damaged support for the Union in Scotland. But it offered a chance to grapple with a more shared approach to governing the UK. The Welsh Government is the most sensible and least heard of the four administrations on constitutional issues. It made proposals for a UK Council of Ministers to decide on common frameworks. More recently, it has called for the successor to state aid rules to be enforced by a neutral body.

Whatever the detail, the principle is clear. Devolved governments need a real say in this area, and the UK Government can’t be both party to and arbitrator of shared rules. Yes, that will slow some UK decision-making down. It would be no bad thing if some UK decisions had to take some more time and be a bit more considered. But for good or ill, it’s part of the price of sustaining a complex union state.

The internal market debacle provides a good example of a core problem with how the Union currently works. Federal systems usually involve some element of shared rule as well as self-rule. The UK, unless and until it finds ways of dealing with the English Question and dividing legal sovereignty, can never be a true federation. But in practice, devolution often raises federal questions, and so does Scottish discontent.

When required to think about Scotland, English commentators often get worked up about money. In doing so, they miss the point about voice. Somehow, the British central state has to find a way to make itself more palatable north of the Border. It has to satisfy enough Scots that Britain as a state isn’t England-Plus with unreliable Scottish opt-outs.

If it can’t, the end of the Union of 1707 is only a matter of time. The Conservatives may think they’re standing up to the SNP. They’re actually dancing to its tune.

This post was originally published on Medium.com on 18 July 2020.

Hard choices

The SNP should debate whether a separate Scotland should join the EU post-Brexit. But all their options are bad

We often forget the SNP campaigned against the Common Market in 1975. But ‘Independence in Europe’ has been an SNP rallying cry for quite some time now. The European Union creates an unusually benign home for small states. To the SNP, the EU also promised continued economic integration with the United Kingdom after secession. The SNP claim that Scotland could carry on in the EU automatically was almost certainly spurious, but that didn’t stop them.

Brexit changes that. It makes the SNP’s political case more appealing, but its practical case harder. It creates sharper dilemmas for a separate Scotland. So it makes sense that some in SNP ranks are raising the question of Scotland’s future EU relationship. Most still back EU membership, including Nicola Sturgeon herself. Some look to the European Economic Area — the so-called Norway model. Are there any good options?

A hard border in Great Britain?

Many Scottish nationalists use Northern Ireland as Brexit grievance fodder. It’s an ugly gambit: Scotland is a country which voted to stay in the UK very recently, not a post-conflict region with a contested land border. Nonetheless, Theresa May’s backstop and Boris Johnson’s frontstop for Northern Ireland show what you need to keep a border open.

Scotland wouldn’t just need to align with the UK on customs and rules of origin. Not joining the Schengen Agreement would avoid checks on people, but still wouldn’t suffice. Scotland would need to align on goods, VAT and sanitary and phytosanitary standards (SPS) too. Joining the EU prevents that, unless the UK aligns with the EU or the EU exempts Scotland from some EU rules.

In the EEA but outside the EU, Schengen, VAT and the EU Customs Union wouldn’t pose an obstacle. But goods regulation remains, as does SPS: EEA members don’t have free trade in agriculture, but apply plenty of EU food safety rules. And being outside the EU Customs Union doesn’t avoid the need for customs checks and rules of origin between Scotland and the UK. And a customs union with the UK is hard to square with joining the European Free Trade Association — required for a non-EU EEA member.

Liechtenstein manages, but Scotland is not a microstate

Granted, one EEA member has an open border with a non-EEA neighbour. Liechtenstein has had a customs union with Switzerland since 1923. It also applies Swiss VAT law. They planned to join the EEA together, but the Swiss rejected joining in a referendum. Switzerland pursued bilateral agreements with the EU instead.

This delayed Liechtenstein’s EEA entry until 1995, but it managed in the end. Both Swiss and EEA goods circulate via so-called ‘parallel marketability’. The authorities monitor goods ‘in the market’ to keep EEA-only products out of Switzerland. Where EEA goods attract tariffs in Switzerland but not Liechtenstein, Swiss customs reimburses importers to Liechtenstein. (This isn’t too far from the plans for Northern Ireland.)

This is much easier for Liechtenstein than it could ever be for Scotland. Switzerland aligns with the EEA for most goods and applies EU SPS rules. It’s in EFTA, along with Norway, Iceland and Liechtenstein. All but Switzerland joined the EEA, reducing the scope for friction due to other trade deals. Furthermore, Liechtenstein is tiny — and so permitted to be anomalous.

Scotland, by contrast, would have the EEA’s largest EFTA population. The UK plans to diverge from EU norms far more than Switzerland. We don’t know how its new trade deals will go, but it shows no interest in joining EFTA. Switzerland has a long history of cooperation with its small, sovereign neighbour. The UK would be asked to help Scotland carve a niche to advantage it against itself.

Cake from London, Brussels, Oslo, Reykjavik and Vaduz? No chance

Only EU membership could grant Scotland a proper vote on EU rules. Overall, though, being a giant Liechtenstein might well be better for an independent Scotland than EU membership. But it’s not going to happen. Neither EU nor EFTA countries will cut corners to keep the Scotland-UK border open. Doing so would mean 49% of the EEA’s non-EU population lived in an anomaly next door to a far trickier neighbour than Switzerland.

Yes, the EU bent some rules for Northern Ireland. Scotland will not get the same offer. It was required for Northern Ireland because Ireland, a continuing EU member, had a vital national interest at stake. Perhaps excepting a Schengen opt-out to preserve the Common Travel Area, Ireland has no such interest in helping Scotland.

Nor would the UK have much interest. It wants to be able to diverge from the EU. It will want to secure the integrity of its regulatory order. And Scotland would be an important trading partner, but not as important as the EU. The UK left the EU to avoid pooling sovereignty: it wouldn’t re-pool it with Scotland for much less economic gain. Any deal would mean Scottish rule-taking and UK decision-making.

Breaking up is hard to do

So Scottish secession means a hard Border unless Brexit softens or the UK rejoins the EU. Joining the EEA would allow fewer barriers with the UK in some areas (eg agricultural tariffs) if the UK agreed. Nonetheless, EEA membership would remain a choice to dealign from the UK.

Still, the scale of Scotland’s UK trade means even this flawed compromise might beat EU membership on economics. A separate Scotland would have two main trading partners: the UK and the EU. But those two partners are far from equal: UK trade dominates.

Data from the Scottish Government. Figures do not add to 100% due to rounding. Flag images from Wikipedia.

For now, Scotland sells to the rest of the UK within a far more integrated market too. There’s a reason the Commission keeps battling to complete the single market. From digital services to hairdressing, from the limits of EU mutual recognition to the UK monetary and fiscal union, sharing a state goes much deeper than joining the EU.

For both reasons, the shock of leaving the British home market — whether for the EU, the EEA or neither — would dwarf leaving the single market. This matters. UK fiscal transfers are crucial, but not the biggest economic question about Scottish secession. The bigger question is: how far would growth exceed or fall short of growth within the Union?

Nationalists make heroic assumptions here, cherrypicking small states and copying countries whose growth isn’t higher than the UK’s. Above all, they don’t factor in the true cost of their political project.

Secession will hurt. So tell Scots what you think they’re paying for

The economic arguments against Brexit apply in spades to breaking up Britain. Scotland’s biggest economic interest lies in its home market with most of its trade. Economic gravity, crucial in Europe according to the SNP (and they’re right), still applies within the UK. If Scotland secedes, the closest possible alignment with the UK would be its least damaging option.

But such close alignment with the UK isn’t realistic. It can’t be: the point of Scottish secession is rejecting the neighbours. Shared EU membership could have cushioned that shift, but not now. Unsure voters will back major pain for radical change, the SNP still wants to sell separation as safer than the Union. But that’s a worse lie than anything from Vote Leave. And the SNP leadership are far too intelligent not to know it.

Breaking up Britain is a far bigger leap of faith than Brexit. It would pull Scotland away from its main market and closest neighbours and the people with whom it shares most. Its rationale is ideological and nationalist, not practical or economic. The least the SNP could do is own its costs.

This post was originally published on Medium.com on 10 February 2020.

Not all Brexit Deals are alike

On balance, I supported Theresa May’s Deal. I can’t support Boris Johnson’s

The United Kingdom voted to leave the European Union just over three years ago. I did not. Those three years feel like many long, weary lifetimes in politics. Throughout that time, I’ve felt we should accept the result and work with it. I was open to a variety of different moderate Brexit outcomes and I never wanted to embitter our politics even further with a second referendum.

I made the argument for Theresa May’s Deal with a heavy heart. I feel grimly vindicated in making it. May was succeeded by Johnson, contemptuous of constitutionalism and unfit for high office. A deal which essentially included a customs union and a fairly high level of alignment with the EU was replaced with a Brexiteers’ Brexit. We now face a far worse choice than before, having badly damaged our democratic norms in the process.

But when I supported May’s Brexit, I made a judgment on a particular package. And as someone who takes the Union seriously, as a social democrat, and as someone willing to accept a reasonable but not brutal Brexit, Johnson’s goes too far. I confess I didn’t expect him to strike a deal by now. I also thought he would only agree one if he had the DUP on board. And I knew the EU would happily adopt a Northern Ireland-only backstop, but I didn’t think they would make so many concessions on its details. But almost all the changes are greatly for the worse and the balance of risks has changed.

The new Northern Ireland backstop: consent without convergence

The reasons for a backstop are well-rehearsed. Brexit forces a series of hard choices upon Northern Ireland — soon, by default, to have a land border with the EU. That border is historically contested, logistically impossible and politically fraught. Border communities have been abundantly clear they will not accept checks and controls. And regulatory and customs divergence means checks and controls.

The EU proposed that Northern Ireland align with Border-relevant parts of EU law and that controls be carried out between Great Britain and Northern Ireland. That cut across unionists’ links to the rest of the United Kingdom, with significant (and likely to grow) barriers to most of its trade. Northern Ireland would also take rules shared with Ireland with no say in them. This differed fundamentally from North/South cooperation by agreement between the two jurisdictions.

Theresa May fought hard to secure a limited UK element to the backstop. Great Britain would have been in a customs union with Northern Ireland and the EU. She also accepted that to keep Great Britain and Northern Ireland close, Great Britain would have to stay close to the EU. Faced with a choice between regulatory freedom and the economic cohesion of the Union, she chose the Union. Boris Johnson chose the opposite. He returned to the Commission’s original backstop, changed its provisions on customs and secured new ones on consent.

Theresa May’s customs partnership has been reborn for Northern Ireland alone. Northern Ireland would legally be outside the EU customs union and in the UK’s customs territory. However, the EU’s customs border would be administered at Northern Ireland’s ports. Some goods bound for Northern Ireland would be exempted from EU tariffs from the start. Others would either need to pay tariffs and claim rebates or have tariffs effectively waived by the UK Government up to a limit. This means Northern Ireland can benefit from such trade deals as the UK negotiates.

Meanwhile, the new consent provisions mean the backstop stands or falls through votes by members of the Northern Ireland Assembly. The backstop would come into force at the end of the UK transition period. After four years, the Assembly would vote. Support from a simple majority of MLAs would keep the backstop in place, with another vote four years later. With a cross-community majority, the next vote would be after eight years. If the backstop is rejected, we would have two years to identify alternative arrangements for the land border. Whether the Assembly ever rejects it probably depends on the Alliance Party’s electoral fortunes. It is unlikely, but not impossible.

May’s backstop, in my view, made it likely that Great Britain would remain aligned to Northern Ireland and major new barriers between the two would not arise while protecting goods trade with Ireland and avoiding a hard land Border. Because Great Britain couldn’t lower tariffs below the EU’s, a radically different trade policy wasn’t on offer. That removed the point of rules on goods which differed from the EU and Northern Ireland. The hard choices Brexit forces on Northern Ireland would have been, more or less, avoided. Nationalist alienation would have been reduced and Border communities’ way of life would have been preserved. And even unionists should recognise that without acquiescence from people of a nationalist background, the prospects for the Union would be poor indeed.

I judge that Johnson’s backstop poses a far starker, potentially destabilising choice for Northern Ireland. Great Britain will, over time, move away from the EU if he gets his way: that is the whole point of the exercise. I do not believe that can happen without growing barriers to trade between the two. We should remember that most of Northern Ireland’s trade is with Great Britain. Clearly this backstop also gives Northern Ireland a competitive advantage over Great Britain in EU trade. I have yet to see hard economic evidence that this outweighs major divergence from its largest market. The likelihood is a significant economic realignment over time, to which most unionists do not consent and which has major political implications.

The institutional provisions are deeply worrying too. I welcome a consent mechanism in principle. But I fear an Assembly vote every four years (not even in line with the Assembly’s five-year electoral cycle) will polarise Northern Ireland’s politics still further and make it even harder for its institutions to work. Do we want every Assembly election to be overshadowed by whether the the region will align with Great Britain or Ireland? Every Border constituency voting on whether MLAs risk bringing back a hard Border? Every core unionist constituency voting on whether they remain aligned with Ireland?

From a unionist perspective, Johnson’s backstop trades the substance of close alignment with both Great Britain and Ireland for the formality of consent which is unlikely to be withdrawn — and which could only be withdrawn at an enormous price. At least as importantly, from a cross-community perspective it raises the temperature of Northern Ireland’s politics indefinitely and undermines its institutions. May’s backstop was, especially if combined with alignment by Great Britain and mechanisms for input in the longer term, liveable. Johnson’s is better than No Deal, given how disastrous that would be for Northern Ireland. But Northern Ireland deserves better than either Johnson’s Deal or No Deal.

The UK’s new Brexit destination: no compromise, no safety net

The new backstop doesn’t just let Great Britain diverge from Northern Ireland. It removes the elements which nudged the whole UK towards a closer relationship with the EU. Those elements made Theresa May’s concessions to Labour MPs more credible. The backstop also included a level playing field, to prevent a race to the bottom between the UK and the EU. This covered aspects of tax, social and labour standards, the environment, competition and state aid.

I’ve called the Political Declaration on the Future Relationship a very solemn press release before. I broadly stand by that: it’s the EU’s starting point for negotiations, and assuming our government stays the same it will also be the UK’s. Given recent history, it is entirely possible that the UK will again find itself in political paralysis, in which case the Political Declaration’s default may be more influential than we think. First drafts often shape outcomes: look at the Commission’s original backstop.

Still, it’s not binding. The level playing field is still in Johnson’s Political Declaration and name-checks the same categories as in May’s backstop. But while it makes clear that how far the UK agrees not to try to undercut the EU and how much market access it gains are linked, it can do no more than that. I accept that, while the UK legally needed EU agreement for Great Britain to exit the backstop, such agreement would not have ultimately been refused. But it makes at least some core protections ‘stickier’ and it nudged us towards a more moderate Brexit.

Ultimately, the whole structure of Johnson’s Deal points to a much harder Brexit than May’s. Whether you described May’s Deal as Jersey Minus or a cross between Turkey and Ukraine, its logic pointed to a fairly high level of alignment in goods. May believed arrangements would be found to let the UK out of a customs union. In reality, I am sceptical the new customs arrangements for Northern Ireland would have been on offer any time soon.

But where May most likely offered a Brexit which was neither soft nor hard, Johnson offers a very hard Brexit indeed. Disruption aside (obviously a huge ‘aside’), it’s probably not all that much better than No Deal in the long run. May’s Deal was a compromise — from a Leave starting point (they did, after all, win), but a compromise. Johnson’s Deal is a compromise with the EU, but it effectively tells Remainers to knuckle under and be grateful they don’t have to eat turnips.

Johnson is riding roughshod over a country which only voted narrowly for Brexit, where two out of four constituent countries voted Remain. He also risks fuelling the cause of Scottish secession from the UK. As a matter of policy, a harder Brexit makes for a far sharper choice for a separate Scotland. Realigning away from the UK and towards the EU would be an immensely painful undertaking. And few would relish checks and controls on the Tweed or Solway.

But as Brexit makes very clear, people don’t always vote on economics. I am British. I am the child of a Scottish father and an English mother. I am not going to risk throwing my country away willingly just so Boris Johnson can ‘get Brexit done’ on his terms alone.

What are the risks?

I am not willing, if I have a viable choice, to see this passed without further reference to the people. But not being a fan of turnips or gambles, the question follows: what are the risks of voting the deal on the table down in the absence of a referendum?

I take a different view to the one I took in March. Unlike then, if a deal is not approved by MPs by the end of today, the Prime Minister is legally obliged to seek an extension under Article 50. Even if we wish to pass this Deal, that is self-evidently in our interests. The idea of trying to pass something as significant and complex as a Withdrawal Agreement Bill in 10 days, with trench warfare in Parliament, is farcical. Legislating for Maastricht took over a year. In the interests of basic democratic scrutiny, we should want an extension now.

No Deal on 31 October is therefore not a legal option as a UK policy choice. In my view, the courts will make short work of attempts to claim otherwise. Of course, no UK Act can prevent the EU from refusing an extension. But though our colleagues’ exasperation is evident and readily explicable, I think outright refusal is a very unlikely scenario.

The choreographed warnings from Juncker, Macron and Varadkar make political sense. And if Brussels forces our hand by refusing an extension, then clearly we will have to accept the Deal as it is. The warnings are not, however, categorical. And revealed preference indicates that while the EU will want any extension to be for a reason, it does not wish to force a No Deal exit. The election which would inevitably follow gives a chance of breaking any political deadlock, which gives the EU an incentive to facilitate one if it becomes clear this Deal will not pass.

Johnson has thrown himself behind his Deal. It now seems overwhelmingly likely that if blocked, he would seek an election on a platform of passing it. He may very well win a clear majority on that basis. If so, there is at least an electoral mandate for the government to proceed. I doubt his odds of outright victory are higher than they’d be after ‘getting Brexit done’. Given these scenarios, it seems to me that there is little to lose.

There is a line

I backed May’s Deal with a heavy heart. Perhaps oddly, I oppose this Deal with a heavy heart too. Politically, I am exhausted by the last few years. I am tired of the polarising ferocity of the Brexit process. I fear what we have done to ourselves and to each other in this country and I fear what we will carry on doing. I wish MPs had compromised when there was a real compromise on the table.

But if this is now the only Brexit on offer, then — having wished for, argued for and supported compromise — I feel forced into preferring a second referendum to see if Johnson’s Brexit is a price people are truly willing to pay. I am far from sure Remain can get one and I am far from confident Remain would win one. Frankly, my gut instinct is that the campaign would go against them. But it is clear to me that not enough people are willing to compromise on a reasonable Brexit.

And if there is a second referendum and if Remain wins, I am under no illusions. At best, we will have restored the threadbare legitimacy of EU membership to which David Cameron referred in 2013. There will be a heavy price to pay and a daunting task ahead in patching that legitimacy up over years. I am far from sure we would succeed.

But there has to be a line. And for peace process, unionist, social democratic and Remain-voting reasons, I have reached mine. So be it. One way or another, let the people choose.

This post was originally published on Medium.com on 19 October 2019.

1707 and 1973: Scotland, the UK and Brexit

When a 62% Remain vote in Scotland met a 52% Leave vote across the UK, the Union of 1707 looked shaky to many. Nicola Sturgeon promptly said a second independence referendum was highly likely. Support for Yes spiked briefly in the polls. Frankly, as a half-Scottish European, I was momentarily tempted myself – despite being a fervent Unionist in 2014.

Since then, somewhat to my surprise, support for Yes now looks pretty similar to 2014. This has, so far, held even as it’s become clear Theresa May takes a hardline view of the Brexit vote. No doubt as a result, Sturgeon – who has no desire to lose a second referendum and really bury the issue – has tried to keep her options open. Her stated position is that her priority for now is to keep the whole UK within the single market. This would be the best possible Brexit outcome for Scotland and for the rest of the Union.

However, she has also spent plenty of time arguing Scotland could stay in the single market even while the rest of the UK left. Clearly, this ‘differentiated solution’ has a distinct political edge: Sturgeon has an interest in the UK being seen not to meet Scotland’s wishes. Still, the UK was always asymmetrical, and voters in Scotland voted decisively to remain. It is also fair to say Sturgeon has softened her position quite a bit from demanding Scottish EU membership post-Brexit. So taking it at face value, what would the differentiated solution entail?

The ‘differentiated solution’: Liechtenstein-in-Europe

The Scottish Government’s paper Scotland’s Place in Europe suggests Scotland could stay in both the EEA and the UK customs union. The document cites the principle of ‘parallel marketability’. This is the model Liechtenstein uses vis-à-vis Switzerland, while participating in the EEA. Because Liechtenstein has a customs union with Switzerland, it has to adopt Swiss technical standards and regulation in a wide range of areas. But the EEA also requires Liechtenstein to adopt its technical standards and regulation.

As a result, EEA and relevant Swiss law are now simultaneously applicable in Liechtenstein. Liechtenstein agreed this with Switzerland, and the EEA also agreed to accept the arrangement. Products meeting either Swiss or EEA standards can be sold in Liechtenstein, but EEA law trumps Swiss when dealing with the rest of the EEA. Liechenstein also had to create a Market Control and Surveillance Mechanism, so neither EEA nor Swiss rules were broken outside the principality.

The Swiss Federal Customs Administration collects duties on goods entering the whole customs area. It informs Liechtenstein’s Office for the National Economy when goods are destined for Liechtenstein. Where customs tariffs are different (some EEA goods attract tariffs in Switzerland, but not Liechtenstein), duties are reimbursed. Importers are informed of their obligations, including proofs of sales in Liechtenstein.

Why it wouldn’t work for Scotland

For Scotland, this presumably means HM Revenue and Customs would continue to collect duties for the whole UK. It would then inform a Scottish public body where requirements differed and when goods were destined for Scotland. By analogy with HMRC, the Scottish body might be a beefed-up Revenue Scotland.

The UK would also have to devolve much of employment, commercial and competition law, so Scotland could implement EEA law. Alternatively, the UK might confer a general power to implement EEA rules on Holyrood. But that could cause chaos in UK-wide law.

Where the UK’s rules didn’t mirror the EEA’s, new non-tariff barriers would arise, which poses a major problem. 64% of Scotland’s exports (excluding oil and gas) go to the rest of the UK, compared to 15% going to the rest of the EU. Even ignoring the fact that much of the oil and gas also goes to the rest of the UK, it is clear who Scotland’s main trading partner is. The Scottish Government would say the model keeps UK goods standards for UK trade. But Scotland is mainly a service-based economy. In fact, Scotland trades more in services with the rest of the UK than it does in goods. The position is reversed in trade with the rest of the EU.

So given that, what happens as UK and EEA employment law start to diverge? What about financial services regulation, especially when UK financial services are so intertwined? What if EEA competition law is tougher than the UK variety – what does that mean for a UK-wide company operating in Scotland?

The problem gets worse when you remember this is Sturgeon’s proposal in the event of a hard Brexit. The further the rest of the UK pulls away from the EU, the more acute the problem becomes. In Liechtenstein’s case, Switzerland adopts most of the acquis communautaire for goods anyway, which softens the dilemma. The UK may well copy a lot of EU regulation anyway, as it discovers the irritations of diverging from its main trading partner. But to the extent that it doesn’t, Scotland will pay a price.

Above all, Liechtenstein is a small and sovereign state. Legally, presumably the UK would need to join the EEA and then restrict its territorial application to Scotland. Scotland would then need powers to take part in the EEA Joint Committee and the EEA Council, appoint a judge to the EFTA Court, select a member of the EFTA Surveillance Authority College and so on. Spanish domestic politics on their own make it clear this won’t happen. But even if the politics could be resolved, the cases are fundamentally different. Liechtenstein has about 37,000 inhabitants. It is tiny, and therefore allowed to be anomalous. Scotland, on the other hand, would have the largest EFTA population in the EEA. It would also be far more closely bound to the rest of the UK than Liechtenstein ever was to Switzerland.

Liechtenstein’s single market model is not workable for Scotland, any more than its migration quotas set a precedent for the UK. Pursuing it undermines the overriding need for a sensible UK-wide deal.

On Brexit, powers reserved should be powers shared

With the potential and partial, but crucial, exception of Northern Ireland, the form of Brexit mostly needs to be settled UK-wide. But that doesn’t mean Scotland’s (or Northern Ireland’s) distinctive views should be ignored. The UK-wide settlement needs to be a compromise befitting a narrow vote and a territorial split.

In many ways, Scotland, Wales and Northern Ireland have federal relationships with the UK. Each has a legislature of its own as well as the UK Parliament. Powers reserved to the UK Parliament are specified in law. The courts can decide if devolved legislation exceeds devolved powers. Devolved powers aren’t meant to be changed unilaterally, though what that means is obviously disputed.

One key difference with federalism is the lack of formal protection for devolution. Unless Section 28(8) of the Scotland Act 1998 is read very radically indeed, no court would actually stop the UK Parliament legislating over devolved legislatures’ heads. But another is the lack of a mature federal political culture. Federalism usually involves shared rule as well as self-rule – an idea that a state’s nations or regions have a say in government at the centre. In a state large or diverse for federalism, central government has to govern with the territorial dimension in mind.

This is why many federations have indirectly elected second chambers. It’s why federations usually require some or all constituent territories to agree some or all constitutional changes. Modern federalism requires governments to work together. But at the moment, we ‘deal’ with problems between the UK’s nations by ignoring them or offering more powers. With Brexit, working out where to handle powers no longer exercised at EU level will matter a great deal. One of the many arguments for the EEA is that it reduces the need to create a framework for a UK single market which neither undermines devolved powers nor means more non-tariff barriers within the UK.

If the SNP wants to serve Scotland’s interests, however, it needs to recognise the UK can’t just devolve itself out of this problem. Scottish Labour, meanwhile, should push hard for UK Labour to back staying in the single market. But in some ways, it’s the Scottish Conservatives who bear the biggest responsibility.

After the referendum, Ruth Davidson said she’d prefer to stay in the single market post-Brexit. She has built her success on being an uncompromising voice for the Union of 1707. No one will ask her to row back on that. But Scottish unionism shouldn’t just be about keeping Scotland in the UK, but helping Scotland shape the UK. The Scottish Conservatives have political capital. Ruth Davidson is highly respected by her UK party. She has shown Tories can make headway in Scotland. She should use it to make Brexit respect Scotland’s interests, and work better for the whole UK.

What happens otherwise?

Some of the Tory right will say Scotland wouldn’t really leave over Brexit, hard or soft. Well, it might or it might not. Brexit complicates and sharpens the choice for Scotland, and the harder the Brexit the truer that will be. Scots would need to be prepared for a decades-long, probably very painful reorientation. It would be a far more radical form of independence than Alex Salmond proffered in 2014.

But wise unionists should want to reduce Scottish discomfort within the UK, not foment it. They should also beware of assuming Scotland would never jump. A Scotland where 45% voted to leave the Union is not one where the Union is secure. It is one in which the Union has much to prove. If Theresa May really cares for its ‘precious, precious bond’, she would do well to bear that in mind.

A plea for my three countries: Britain, Scotland and England

I have no vote in the referendum on Thursday. But the second of my countries may be on the verge of divorcing the third and abolishing the first. I make no apology for the emotional parts of this piece: nations are about shared affection and belonging. Here, I want to set down why I so desperately hope Scotland votes No, stays in the shared British family and helps to improve it.

Family and friends

For me, this question is deeply personal.

My father is a Scot. He went to school in Edinburgh; his parents now live in England. He fell in love with my mother, an Englishwoman, when they were both studying at Aberdeen. My sister and I have lived in both Scotland and England. My mother’s sister also went to Aberdeen to study, and married a Scot. The marriage ended, but my aunt still lives in northeast Scotland. One of her children lives in Aberdeen; the other is now in Leamington Spa. We are all children of the Union.

Countless families all over Britain can tell similar stories. Three centuries of common endeavour – of living, trading, travelling, fighting, negotiating together – have created them. Without the Union, there will be fewer. I’m not saying we’ll suddenly all regard each other as complete strangers and foreigners: but the nations of the UK will be less interested in each other, less involved, less intertwined. There are about 400,000 people from Ireland in the UK: but there are about 700,000 Scots in England and about 400,000 people from England in Scotland alone. It isn’t quite the same, and if it leaves Britain, in the long term the links with Scotland won’t be either.

We won’t become as foreign to each other as we are to anywhere else: but we will become more foreign to each other than we were before. Anglo-Scottish families won’t cease to be families: but fewer Scots and English will intermarry than before. Our horizons will narrow that little bit, and that would be desperately sad.

Scotland in the Union

Scotland is an extraordinary country. In population, it is small: about the size of Finland, Denmark or Turkmenistan. But its impact on the world has been out of all proportion to its size: in fact, I don’t think there is any other nation of five million people which has had anything like its influence. That’s down to Scottish talent, enterprise, efforts and ingenuity: but the Union also gave a platform for Scotland to project itself to the world. Scotland has always refused to be a ‘small country’, despite its size.

Scots have been at the forefront of Britain’s story, for better and for worse – as soldiers, diplomats, ministers, migrants and more besides. To take one example, James Watt’s steam engine played a vital role in the Industrial Revolution – which he commercialised, at least in part, through partnership with the English Matthew Boulton. Scots have served disproportionately in Britain’s Army for centuries. There is a reason why Canada has a province called Nova Scotia. Ships from the Clyde sailed the world. There have been 10 Scottish Prime Ministers – more than population would suggest. Scots invented penicillin, the telephone and radar, spread the British and Scottish presence around the world – and helped to shape that world.

In fact, Scotland didn’t just contribute enormously to Britain: in many ways, it created it. Ideas of Unionism, in the true sense, emerged in Scotland before England. Back in 1520, John Mair saw it as a way to prevent an English empire – an agreement to allow both to flourish. James VI and I wanted a full union, but one which took full account of Scotland’s story as well as England’s. And for all the talk of ‘bought and sold for English gold’ (which referred to Darien and not to the Union, by the way), Scottish negotiators honoured the Scottish unionist tradition. The Scots Parliament may have ceased: the Kirk Assembly, with its larger place in Scottish life in that time, remained. Scots law, education, religion: these were preserved too.

Scotland, in other words, made Great Britain too. England’s security imperatives were key, of course they were, but the Scottish conception of union was crucial. The result was that 1707 secured the Hanoverian succession and a Parliament at Westminster, but also ensured Scottish distinctiveness. And proud Scottish Unionists would go on to celebrate Bannockburn, the Declaration of Arbroath, the fight against English kings – and see them as the battles that made an agreed Union possible. Britain is an extraordinary Scottish success story.

Britain: a country worth celebrating

For all its faults, Britain is also a country which is worth keeping, and without which the world would be the poorer.

For a start, Britain was always multinational: you could never be British without being something else as well. Within our duffle-coat state, we have always had at least two legal systems, two national churches, at least two systems of education and more besides. Devolution in 1999 was, in many ways, a modern variation on a constant theme.

That means that Britishness has never been a narrow identity. It has always had to coexist with other senses of self. That is a very precious thing in a world where societies are multicultural, identities are overlapping and integration is indispensable. Because you’ve always had to be English, Scottish, Welsh or something else as well as British, it’s generally been easier to be British Indian, or Somali, or Chinese, or anything else. Scottishness is generally inclusive too, of course, but I think the arrival of ethnic diversity in a land where multiple identities had been officially sanctioned for so long helped make it that way.

Secondly, Britain has done a lot of good as well as bad, and has a lot to be proud of. It isn’t the first home of parliaments, but it has had an exceptionally long run of constitutional government. That has often been enormously influential in other democracies: and in countries where Britons played oppressor, it’s striking how their own values were eventually used against their rule and helped to inform the successor state. It is, in fact, a remarkable tribute to the British history of government by consent that this referendum is being held on an agreed basis: look at Catalonia or Quebec if you think that just comes with being a developed democracy.

Scots, English, Welsh and Northern Irish have also fought together, of course. However you qualify it – and we too easily cast aside the contributions of Canadians, Australians, Irish, Poles, Free French and many others – there was a period when Britain had to lead the fight against fascism, and hold the ring. It was one of the few democracies to fight the Second World War from beginning to end, and it mobilised an extraordinary amount of its resources to fight that conflict. Everyone always mentions this, and that’s because it really is something we all share, and something we can be proud of.

Since 1945, Britain’s role has continued to be large – and Scotland, as always, has played a part out of all proportion to its size. It was a Scottish Lord Chancellor of Great Britain, practising English law, who was vital in making the European Convention on Human Rights happen. It was a Scottish Chancellor, in a British Labour government, who worked with an English International Development Secretary to create Britain’s Department for International Development. DfID now has the second largest aid budget, and is arguably the finest international development ministry in the world. It was a Scottish Foreign Secretary who began to position the UK as one of the most active of anti-death penalty states. Britain played a major role in making the Arms Trade Treaty possible.

Scottish talent, ingenuity and enterprise has contributed a vast amount to our common home, and we are all better off for it. A separate Scotland would, of course, play its part in the wider world: but it couldn’t be on the scale of Britain. We do far more together than either of us would apart – and I don’t believe it would be true to Scotland’s story to turn away from that.

British social democracy

Domestically, we have built a welfare state together. I don’t think we always realise how unusual the NHS is. Even Sweden charges patients to visit their GP. In Britain, healthcare free at point of use is non-negotiable. No government would challenge it in England, Scotland, Wales or Northern Ireland, because the social commitment to the principle is absolute. Far from being a case for Yes, it is a principle we all share as British citizens. It was a Welshman, Lloyd George, who steered through the People’s Budget and the National Insurance Act 1911; it was a Scotsman, Keir Hardie, who was the first leader of the Labour Party.

We also have a striking belief in the importance of a decent public culture. We have the finest broadcaster in the world, the BBC, and it was founded by a Scot in 1926. In communist eastern Europe, people listened to the World Service secretly, for real news rather than propaganda. The last Labour government also gave us free museums – and again, we have some of the finest in the world. Free museums aren’t typical: they’re exceptional. They have, in only 13 years, become another thing we all share as citizens.

I know our welfare state is much more threadbare than it was: I hate what this UK government is doing to it as much as any Yes voter. But I also know that Britain, a large country with a currency of its own and very slowly-maturing debt, had a choice in 2010. We had the option of running a looser fiscal policy than we did. A country of five million, without its own currency, doesn’t necessarily have the same fiscal options and can’t follow that particular path so easily.

More than that, I also know it’s happening to people in Gateshead and Glamorgan, just as much as Glasgow – and in fact, it’s happening more to people in Gateshead, because they don’t have devolution. And I believe in solidarity: I want to see us standing together for a better Britain – not turning away from each other, and still less entering some kind of race to undercut each other to attract the multinationals. The Salmond vision of corporation tax cuts to beggar the neighbours holds no charms for me. I want the bonds of solidarity widened, not narrowed.

The better option is to support greater devolution to Scotland, including serious fiscal devolution, to allow social democracy to be pursued there while preserving the best principles of the British safety net: social security transfers, smoothing of the spending impact of the economic cycle and guarantees of the ability to provide a common standard of services for common levels of taxation, whatever happens in future. That would allow Scotland to be a shining example of what social democracy could do – one for the rest of the UK to emulate.

Ideally, in fact, I’d have a federal state, with an elected second chamber to keep Whitehall in check and powerful legislatures within England to counterbalance the pull of the south east. With Scotland in the UK, that becomes much more likely: and wouldn’t it be appropriate if the country which did so much to create Britain before 1707 did the same in 2014?

Finally …

Without Scotland, Great Britain wouldn’t exist, and the UK would be vastly poorer for it. The most influential country of five million in the whole world would be leaving the most successful multinational state in history. Ties of family would weaken. Individuals would have to make painful choices about who they were, where they came from and how they chose to identify themselves.

It isn’t true that most Scots reject Britishness as an identity. It might be subsidiary, or used at some times and not others, but it’s there nonetheless. And that’s true for all the nations of Britain. We don’t always know exactly how our different layers of identity relate to each other, but then we haven’t needed to. Vagueness about identity is a British trait – not necessarily a flaw.

Voters in Scotland: rightly, the choice is yours alone. Please don’t make us all choose. Please don’t turn away from all the things we’ve done, enjoyed, suffered and endured together. Please don’t separate my father’s country from my mother’s. Please don’t place my English aunt in Scotland and my Scottish grandparents in England on opposite sides of an international border. Please vote No.