Independence had better happen before Brexit, if at all

Like many people, I've been keeping an eye as to what will happen with Brexit. I admit to having a vested interest, with a house outside central London, in Turnham Green. The exchange rate between the New Zealand dollar and the British pound has fallen astronomically - from 3.5 in the pounds heyday to 1.75 now. What a difference? What does this say about Brexit, if at all? Is it any wonder if the Scots vote for independence and to stay in the EU? But it is all about the timing. And how to get it right?

This article from the Financial Times outlines what options Scotland's First Minister, Nicola Sturgeon, has

By Martin Sandbu

March 21, 2017

In the stand-off between Theresa May and Nicola Sturgeon over whether and when to hold a new referendum on Scottish independence, the UK prime minister has a good argument available to her in her insistence that “now is not the time”. She believes that the citizens of Scotland should have a good sense of what they would be choosing when voting on whether to separate from the UK, and that will not be entirely clear until Brexit has been negotiated and, at least to some degree, put into practice. This why an FT editorial argues any referendum should be held at a later date: to “give Scots an informed choice”.

For architects of Brexit, however, it looks awkward to base an argument on the need for voters to be informed. The UK’s EU referendum vote concluded a campaign that at best ignored and obfuscated what the alternative to EU membership would be, and at worst dissimulated what could be hoped for.

Besides, there is a stronger argument to the contrary. That counterargument is twofold. On the one hand, we know quite a lot already about what Brexit Britain’s relationship with Europe will look like: May has decided it will be distant, unambitious, and for that reason somewhat easier to settle than retaining the closer ties involved in the softer Brexit options the government has renounced. On the other hand, the outlook for an independent Scotland will be made riskier by waiting until Brexit has taken effect. That is because the option of pushing to “inherit” the UK’s existing membership of the EU, while an uphill battle, will be irretrievably lost once the UK’s own membership lapses.

Now the dominant view, as gathered by the House of Lords constitution committee, is that Scottish independence would constitute a secession in which Scotland becomes a “successor state” that would leave behind the institutions and international entanglements of the remaining UK (which would be the “continuator state”). On this view, leaving the UK before Brexit would mean leaving the EU shortly before the rest of the UK. But there is at least a basis for Scotland to challenge this interpretation: the 1707 Acts of Union did after all ratify a treaty of union between two separate countries. If independence amounted to dissolving a union between equals that itself was still an EU member, Scotland could reasonably push for retaining EU membership even if the other part of the separated union renounced its membership.

After Brexit, the merit of such a view would be academic and of no practical relevance. While the UK remains an EU member state, however, it could matter enormously. During the 2014 independence referendum campaign, the European Commission set forth the “Barroso doctrine” according to which a newly independent Scotland would have to apply to rejoin the EU. But the arbiter of this is surely the European Court of Justice, not Brussels, which may take more kindly to the “union of equals” argument. Besides, while the commission for now stands by the Barroso doctrine, the politics looks radically different from three years ago. If Scots chose independence on the grounds of not wanting to lose the EU citizenship they currently enjoy, many of the 27 other members may look kindly on such a motivation.

The key fact about aiming for such a result is that it is possible only if a referendum was not just held and won before Brexit took effect, but if Scotland also separated from the rest of the UK before the UK left the EU. That is an awfully tight timeline: it would require a vote in 2018 to be followed, if successful, by actual independence only months later. But if retaining EU membership were really a priority for Scotland, this would be the course to take. A bonus from Sturgeon’s point of view should be the pressure it would heap on May to pursue Brexit negotiations with a view to placate the Scots, which could give a new lease of life to the proposal that Scotland should remain in the UK while granted enough autonomy to be able to join the EFTA and the EEA. This policy, which Free Lunch last year argued was feasible and has since been formally proposed by the Scottish government, also seems close to the “third way” devolution proposed by Gordon Brown recently.

A strategy of independence before Brexit is admittedly wildly speculative. The fact that Sturgeon’s second referendum push plays down the relationship with Europe, and that she is willing to delay the timing of a referendum, suggests her game plan is more about maximising the chances of a Yes vote to independence — trying to keep Eurosceptic Scottish nationalists on board, in other words — than about offering Scots the best possible options to choose between. That, however, is what true democrats should care about.