The Brexit Imbroglio between Law and Pluralism
Gaetano Pentassuglia, University of Liverpool 28 June 2016

The resignation of Prime Minister David Cameron in the immediate aftermath of last Thursday’s vote has added an extra layer of complexity to this debate, and there are now clear signs that the fate of Jeremy Corbyn, the leader of the Labour Party, hangs in the balance too. Scottish Prime Minister Nicola Sturgeon has been adamant that the overwhelming remain vote cast by Scottish voters is highly likely to trigger a second referendum on independence.  Similar challenges to the Union have come from Deputy First Minister of Northern Ireland Martin McGuinness, who has called for a referendum on the reunification of the north and south of Ireland following the Brexit vote.

At least two questions should be given a great deal of thought in the short and medium term: What does the outcome of the referendum actually entail? And assuming Brexit takes effect further down the line, could Scotland be taken out of the equation, as the Scottish Prime Minister seems to suggest in her bid to protect Scottish interests within the EU?

From a legal and policy-making perspective, matters are not as clear cut as one might think. Let us briefly take a closer look at each of those questions in turn.

The Article 50 debate

Article 50 of the Treaty on European Union sets out the framework for a member state to withdraw from the Union. There can hardly be any doubt that Article 50 does not allow the EU to force the ‘outgoing’ state to trigger the withdrawal process at any particular point in time. There is no legal obligation upon the UK to invoke Article 50 at the time of Brussels’ choosing, though the UK does have an obligation to trigger this procedure when it confirms its decision to leave the EU ‘in accordance with its own constitutional requirements’.  This is entirely in line with general principles of international law. Whether or not delaying this process is desirable is a different matter. It very much depends on what one is seeking to achieve by doing so. If you are looking to restore some form of institutional stability and reassure the markets, then delaying tactics may not be appropriate. However, it is not inconceivable to assume that some politicians from across the political spectrum would rejoice at the prospect of buying more time to reflect upon the implications of the EU referendum.

Is the result of the referendum legally binding as a matter of British law? Hardly. In fact, it would be extraordinary to argue that the Brexit vote can ipso facto disentangle the UK from the European Union in law.  This is certainly the case in relation to Article 50 (which could, in principle, never be triggered), but it is equally true of UK law which is built around the notion of Parliamentary sovereignty. Parliament (the representatives of the people), not the electorate itself, is the only entity endowed with the legal authority to make that final decision. Contrary to the Leave campaigners’ rhetoric over control and sovereignty, it was precisely Parliament that chose to entrench the primacy of EU law within the British legal system through the 1972 European Communities Act (three years prior to the 1975 referendum on EEC membership). And it is now for Parliament, and Parliament alone, to undo that state of affairs. This is anything but surprising.  The negotiation and implementation of international treaties ordinarily require Parliamentary approval, and this is even more so in the context of the founding treaties of the European Union.  Any decision by the Executive to invoke Article 50 in the absence of consent from Parliament would arguably overstep the boundaries of the former’s treaty-making competences. There may well be very compelling reasons for implementing the Brexit vote (swiftly or otherwise), but there is nothing in the law indicating that the matter cannot be reconsidered. Parliament has actually the responsibility to intervene as part of the withdrawal process in order to repeal, replace or confirm the 1972 legislation. This holds especially true considering how narrow the Brexit majority was, how broad majorities need to be on fundamental constitutional matters, and the effectively advisory nature of the referendum.

Can Scotland go it alone?

Now, assuming Article 50 is invoked later in the year, could Scotland be able to carve out a special regime to protect its interests within the EU? Clearly the referendum was a national, not regional one, and so was its outcome. On its face it cannot be taken to represent separate majorities or minorities as if they reflected the outcome of different local consultations. Politically, though, the deep divide between the pro-remain vote in Scotland and the pro-leave vote in considerable swaths of England (and Wales) does raise the question of whether Scotland could legitimately aspire to a different kind of deal with Brussels (and Westminster) when it comes to the EU.

What are the options here? Scotland’s devolved powers have made them the guardians of the compatibility of Scottish law with EU law but a rejection of future Westminster legislation on Brexit by the Scottish Parliament, while possible under the so-called Sewel Convention, would not amount to a veto right – the national Parliament would still have the final say. The Scottish government may seek to set a date for a second referendum on independence over the next two years, but this would have to be agreed upon with the central government and would not have a direct effect on EU membership. In fact, a pro-independence result would simply pay the way for a fresh membership application to Brussels, a process which would in turn take a great deal of time to complete (as per the EU treaty rules on accession of new states).

Does that mean Scotland cannot have a special status vis-a-vis the EU as the rest of the UK leaves this organisation for good? Not necessarily. After all, territories and autonomous entities have been granted such status within the European Union space over the years. The Faroes Islands and Greenland are both part of Denmark and both of them opted to be out of the EU through special arrangements. Equally the Åland Islands is part of Finland while retaining special autonomous powers and a special status under EU law. Most of these arrangements were rooted in the need to reconfigure the position of distinct territorially-based identities within the EU institutional structure. The case for accommodating Scotland’s group identities would chime with this view. However, the approach would not be wholly problem-free either. These precedents are largely defined by derogations from EU law rather than the desire to preserve the integrity of EU law within a particular region. In effect, the Scottish case is the Nordic case in reverse – there are no cases where the mainland leaves the EU while a part of the country wants to stay.

That said, it is far from uncommon for states to grant sub-state entities the legal capacities and powers needed to engage in international affairs and even to enter into international agreements. Here again, Europe offers examples of this. Belgium, for example, allows communities and regions to negotiate and conclude treaties in matters falling within their competence, and so has done Denmark since 2005 in relation to the Faroe Islands and Greenland. Åland is entitled to play a major role in negotiating and implementing treaties that are bound to affect Aland’s autonomy, though they are not allowed to enter into a treaty on their own.

So where does this leave Scotland in its quest for savaging its link with the EU? Well, Brexit negotiations with Brussels (if and when they come) should be able to fully represent Scottish interests – a pledge Prime Minister David Cameron seems to have made and that her/his successor should not renege on. Where this might lead up to is hard to tell at this stage, not least because of the significant timeframe allowed for these negotiations (in terms of Article 50, many predict a longer-than-two-year period). There should be space for negotiating sensible solutions. The exit negotiations, which need to take the UK’s ‘future relationship’ with the EU into account, might include a clause that protects certain areas of EU legislation in the region. The same might be considered in future trade agreements the UK would be able to secure with its non-EU partners. Another option might be to reinforce Scotland’s autonomy by establishing the power of the Scottish Parliament to block Westminster legislation on matters otherwise covered by EU law and already entrenched in Scottish legislation (e.g. on environmental protection or social rights). The most enduring and robust of European autonomies in Europe, the Åland Islands, does provide such a power as a matter of national law.

Accommodating Scotland short of independence would be entirely in line with the best British tradition of legal and political pluralism. Whether or not a special regime for Scotland can be sustained economically would remain to be seen. It would probably introduce a two-tier system centred around a degree of freedom of movement and access to the internal market for Scotland, but not the rest of the country – something that some or many south of the border might be uncomfortable with. But if this were to be the price to pay for keeping the Union intact, I believe it would still be worth paying it.

The Brexit imbroglio is only starting to unravel. Its economic, political, constitutional and international repercussions are still hard to decipher. The UK seems to be set on course to leave the European Union after 43 years of membership as the EU is in the midst of multiple crises. A way out of complex debates over democracy, identity and the role of Britain in Europe and beyond will require rational and nuanced decisions, not simplistic arguments that play in the hands of populism, nationalistic hysteria, and hopeless xenophobia.