On the face of it Brexit appears likely to pull Scotland in a direction that it does not want to go. But could Brexit actually create the conditions for a solution that leaves most people happy enough, and does not leave the other side resentful? Jim Gallagher suggests that this is a possibility. The return of powers from Brussels not only to Whitehall, but also the devolved governments, presents an opportunity to move towards a confederal constitution that could satisfy the demands of people in all parts of the Union.

The absence of a coherent strategy for getting the UK out of Europe is becoming increasingly clear. Brexit is construed ever more narrowly as simply a bid for independence, a search for sovereignty (not parliamentary sovereignty, it seems, as parliament will have no say in triggering the negotiations leading to the UK’s departure). This tells us something about referendums as a decision-making device, and points to what a bad idea Brexit as a pretext for another Scottish independence referendum is. But, paradoxically, the government’s post-Brexit destination might just offer the chance of a more constructive resolution for Scottish-UK relations.

It is increasingly clear that Brexit was a nationalist referendum. Both sides would be insulted by the comparison, but Messrs Johnson and Gove spent the campaign singing the same tune as Alex Salmond. Both claimed to be positive, but were essentially negative. They were telling people to vote against a union – European or British. But voting against something is writing a blank cheque for something else. And if you write a blank cheque, somebody else fills it in.

In Whitehall today, the three Brexit ministers can’t agree how to fill that cheque in. That’s hardly surprising, since their pre-referendum promises were inconsistent: we are not going to get the single market without free movement of labour. This shows the first big problem with the referendum as a device. If people vote against something, there is no saying what they will get instead, and when the campaigners aren’t in a position to deliver their promises, the outcome will probably be something the population don’t actually want. Chances are, had it been offered them in terms, a majority of voters would have rejected the Brexit deal we are about to get.

By polarising the question into yes or no, with a winner takes all outcome, referendums are guaranteed to split countries. In Scotland in 2014 nearly half the population were disappointed, and a good number simply refused to take no for an answer. On Europe, half the population are now confused and worried, with the other half triumphant. Significant parts of the country, including Scotland, Northern Ireland, London and some other major cities, are being pulled somewhere they don’t want to go.

So it’s not too strong to argue referendums can produce anti-democratic outcomes: voters get something they don’t want, and winner takes all is not the only definition of a democratic outcome. On existential issues like Brexit or Scottish independence we’d be better to look for solutions that most people can live with, rather than leave half triumphant and half bitterly resentful.

Little sign of that on Europe: there is not much scope for compromise, but there is the option of rejoining the European Free Trade Area. Driven by internal party politics, ministers are rejecting that, even though the population might grudgingly accept it.

Up in Edinburgh, SNP ministers contemplate their options, mostly driven by opinion polling. These give them little comfort: Brexit has not changed opinion on independence. But they would be wise to reflect instead on the lessons of Brexit. An independence vote could leave Scotland like Britain today, with a government unable to deliver on the promises it made to get the vote through, and a country split from top to bottom.

The paradox in all this is that Brexit could create for Scotland – Northern Ireland and others too – the conditions for the kind of strategic compromise the UK government is rejecting over Europe, one that leaves most people happy enough, and does not leave half resentful. Powers are coming back to Britain from Brussels. As a result all of the UK’s governments will become more powerful, the devolved administrations as well as Whitehall. At the moment Brussels rules create UK uniformity in major areas of policy, like agriculture, fisheries and the environment. These powers will flow straight through to Edinburgh, Cardiff and Belfast. The UK should and probably will resist the temptation to arrogate to itself the EU’s present powers of control: unlike the principle of Brexit, taking such powers would require devolved consent under the Sewel convention.

This will make the devolved administrations more like equal partners to the UK government, and will mean, for the first time in the UK, genuine inter-governmental negotiations from which both sides need agreement. An imaginative UK government could build on that in two ways. First, recognising that devolution is about reflecting different preferences – if the population of the devolved areas wanted a different relationship with Europe on devolved matters, they should be able to have one. So the Scottish government (Belfast and Cardiff too) should be given power to make international agreements with the EU for devolved matters. They could, for example, buy into Erasmus studentships, or EU research programs, or reciprocal access to health services.

The second possibility is more intriguing, and follows from the UK government’s likely approach on migration. Ministers look like rejecting free movement of labour in the EU. But they are also going to end up agreeing Visa free travel to EU citizens. They have to, because otherwise they cannot keep the common travel area with the Republic of Ireland, and anyway could not manage the border checks needed at other UK entrances. So EU migration will be managed on a ‘point’ basis. Employers, say, will have to check whether people have the right to work; maybe even landlords or public service providers will have to check whether they are allowed to settle. Whatever the mechanism, it is done not at the border but in country. That means it can be different in different places. Scotland has already made a case for a different migration policy (the demographics are more challenging) and devolved EU migration policy is now an obvious response. And if Scotland, why not Wales or London too?

Put all this together, added to the substantial increases in devolved powers already in train, and you see a picture of a quite different UK. More like a confederation of nations of radically different sizes, sharing things that matters hugely, like economic management, access to welfare services and defence, but prepared to let the small nations be quite different.

People often talk about federalism as if it were a solution for the UK. In truth the UK is already moving beyond it, to a more confederal solution. But a confederation needs policies and institutions of shared rule, as well as self-rule. Brexit immediately offers one: the UK’s first chance in decades of an effective regional economic policy, so that central government can direct resources to the poorer areas of the country and use them in imaginative ways. Another might be finding a way to use the House of Lords as an effective Senate or Council of the Isles, holding the UK’s governments to account for their joint activities. My suggestion would be a grand committee of the House of Lords, with no partisan majority, and with 55 per cent English members so the devolved are consciously overrepresented.

All this takes the UK and Scottish governments well outside their different comfort zones. Theresa May would have to show much more imagination about the consequences of Brexit than she has yet shown about its content. Nicola Sturgeon would have to show courage in putting the traditionally conceived dream of independence aside, at least for this generation. Do they have the courage and generosity to do this? I don’t know, but it’s surely worth asking.

Professor Jim Gallagher expands on these ideas in a paper, ‘Britain after Brexit: Toxic referendums and territorial constitutions’, published today. You can view the paper at this link.

About the author

Jim Gallagher is an Associate Member of Nuffield College, Oxford, and visiting Professor of Government at Glasgow University. He was Director-General, Devolution Strategy, at the Cabinet Office from 2007 to 2010. He tweets @ProfJimG.