A cross-party committee of the Privy Council should be established to seek consensus on the terms of Brexit

Following last week’s general election result Theresa May is likely to face severe difficulty in negotiating Brexit successfully unless she seeks cross-party consensus. In this post Jim Gallagher suggests that consensus could be achieved through a special committee of the Privy Council, the membership of which would reflect the House of Commons and also contain representatives of the devolved legislatures.

It will be impossible for a minority government with a weak Prime Minister to negotiate Brexit successfully, against a ticking clock, if it deals with the issue in the normal way of British politics. Government cannot formulate policy privately, then seek to sell it to the House of Commons while talking fitfully to the devolved administrations. Theresa May’s administration can be held to ransom, if not by the DUP, by factions in her own party. The opposition will sense blood and might be keener to bring down the government than do a European deal. The devolved will stand on their rights to consent. So even if she can negotiate some agreement with Brussels, she will fail to secure a domestic legislative consensus and the deal will fail.

The government has already used up two of the 24 months allowed for this negotiation and succeeded only in weakening its position. As a result, the UK is faces a high risk of crashing out the EU in an unmanaged way.

Leaving the EU presents the British state with an unprecedented problem. It must be handled in an unprecedented way. Other countries might consider a government of national unity to give the negotiators authority to commit to a deal. We seem too partisan for that, but some senior figures in both government and opposition parties are already saying openly that a cross-party consensus will need to be built on this question. To build such a consensus, however, is anything but straightforward and will require a degree of trust and information sharing that is wholly alien to our normal way of doing government business – to which Westminster and Whitehall will default unless something radically different is devised.

If government tries to develop policy behind closed doors, keeping the devolved at arms-length and negotiating tactically secure a day-to-day majority in parliament, it will almost inevitably fail. There is certainly very little chance of completing the process in time for the agreement to be settled and ratified in Europe as well as here.

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Brexit, federalism and Scottish independence

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As the UK withdraws from the EU, is this the opportune moment for a restructuring of the Union along (con)federal lines? On 13 February, the Constitution Unit hosted a panel discussion on ‘Brexit, Federalism, and Scottish Independence’, to explore this question further. The panel, chaired by Kenny Farquharson, consisted of Professor Jim Gallagher, Kezia Dugdale and Baroness (Jenny) Randerson. Seema Syeda reports.

Opening the Constitution Unit’s seminar on ‘Brexit, federalism and Scottish Independence’ on 13 February, Kenny Farquharson declared that ‘Brexit is a painting that has not yet dried’. After the EU referendum result exposed a nation fractured along the lines of geography, age, wealth, and education the full consequences are yet to become apparent. The divisions now manifest in UK society are troubling enough to satisfy the worst of cynics – yet, in the greatest constitutional upheaval the UK has seen in decades, some have spied an opportunity.

Might the transfer of wide-ranging powers from Brussels, not only to Whitehall but also to the devolved administrations, provide an opportunity to revitalise our democracy through a newly federal UK? Important competencies relating to agriculture, fisheries and the environment will, unless the UK government legislates otherwise, return to the Scottish Parliament and to the Welsh and Northern Ireland Assemblies. Both the devolved and central governments will therefore see a dramatic increase in their powers. Brexit, as ‘wet paint on canvas’, in a continuation of Farquharson’s vividly imagined metaphor, might be an opportunity to restructure the relationship between the UK’s four constituent nations.

These possibilities were discussed by a panel which consisted of Professor Jim Gallagher, Scottish Labour leader Kezia Dugdale and former Liberal Democrat Welsh Assembly member and Wales Office minister Baroness (Jenny) Randerson. Kenny Macaskill, Cabinet Secretary for Justice in the Scottish government under Alex Salmond, was also due to attend but unfortunately could not make it due to unavoidable business in Scotland.

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The Scottish government’s Brexit paper suggests that the last thing Nicola Sturgeon wants is an independence referendum

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Yesterday the Scottish government published a detailed policy paper, setting out options for how Scotland could remain in the EU single market following Brexit. In this post Jim Gallagher argues that the paper, which focuses on options that would involve Scotland remaining part of the UK, suggests that Nicola Sturgeon would rather avoid a second independence referendum. The First Minister may instead be edging towards a confederal solution that the majority of Scots might sign up for.

The publication of the Scottish government’s policy paper on Brexit, Scotland’s Place in Europe, may signal something of a change in tone from the SNP leadership. Reading it, one can only conclude that last thing Nicola Sturgeon wants is an independence referendum.

Certainly Sturgeon’s tone contrasts with the noises off from Alex Salmond, who has been energetically laying the groundwork for a rerun of 2014, or some of Scottish government Brexit minister Mike Russell’s earlier rhetoric. It is still possible to conclude from the paper and the logic of the SNP’s argument that, if they don’t get the concessions they hope, then they will be demanding another independence referendum. But the big message from the paper and its presentation is not bullying language about when a referendum might be called: it is that the SNP don’t think leaving the EU justifies repeating the independence poll at all. Instead they are setting out ways the UK can leave the EU without one. Can the UK stay in or near the single market, or at least can Scotland? If it can the UK leaves the EU, but the SNP won’t find themselves demanding ‘indyref2’.

Responses from Unionists

Opponents of independence can respond in different ways. It’s easy enough to mock. Many, supporters and opponents alike, will say it’s fear. Maybe fear of losing – two-thirds of voters don’t want yet another poll, and independence support is where it was in 2014. Around 400,000 nationalists seem to dislike the EU as much as the UK  and might not vote to leave the UK just to join the EU again. So despite what Alex Salmond says, the prospects of another referendum are not hopeful for the SNP and a second defeat would surely be fatal to the cause.

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An interim EEA-style deal for the UK is the most likely outcome from the Brexit negotiations

Jim-Gallagher

Five months on from the EU referendum it is still unclear what sort of Brexit deal the UK government would like to seek. In this post Jim Gallagher argues that this means that it is hard to see either the UK or the EU being in a position to implement a bespoke Brexit arrangement by the deadline of March 2019. He therefore suggests that an interim EEA-style deal for the UK is the most likely outcome from the Article 50 process.

Fully five months after the vote we still have no idea what the United Kingdom government thinks Brexit means. That very fact tells us what Brexit will probably be like, and how it will be implemented.

Failing to plan

That there never was a plan for Brexit is now a commonplace. David Cameron expected to win the referendum, and planned accordingly. For reasons that are now obvious, the different Leave campaigners weren’t in the planning business either. Over the last five months, this has moved from unsurprising, to deeply alarming. It is now quite likely to determine what happens.

Why do we still have no idea what Brexit means? First the magnitude of the task: Europe and its laws are embedded to a greater or lesser degree in every aspect of our public life. It’s said that there are 500 or more projects ongoing in the civil service to disentangle that spaghetti. In the absence of clear direction as to the end-state, each is bound to have multiple variants. Ministers are unable to give a clear direction in part because they know they must negotiate. But the main reason is that they themselves have no single view on what the UK’s future EU relationship should be. They disagree on how far out we should be. It’s not just a lack of vision but competing visions, reflecting the continuing political divisions at the core of the government. It’s hardly surprising then that the civil service, now smaller than at any point since the Second World War, is having a hard time. Whitehall is crying out for a clear sense of direction and not getting one. As a result, the UK will trigger Article 50 on the basis of an incoherent and undeliverable prospectus.

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Brexit presents an opportunity to move towards a confederal UK

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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.

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The Brexit shambles: charting a path through the rubble

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In a paper published this week by Nuffield College, Oxford Jim Gallagher argues that in responding to June’s Brexit vote the UK and Scottish governments must proceed rationally, on the basis of the evidence, and pursue the national interest. They should not feel bound by the Leave campaign’s promises and should seek to stay in, or as close as possible to, the single market. The paper is summarised here.

In an attempt to unite the Tory party David Cameron has split the country. He has left the governments of the UK with a shambles to clear up. It is not at all easy to see a path through the rubble, but if governments focus on the things that really matter ­­­ – the economy, the territorial integrity of the UK – then perhaps they will be able to discern a way forward.

The first thing they need to do is understand the nature of the vote. Just like the vote in the Scottish referendum, it was as much a cry of distress as a political statement. Like the Leave campaign, the Leave vote is more protest than proposal. Of course, there are those in the UK who are ideologically opposed to Europe, but what got leave over the line in the referendum were the votes of the politically alienated and economically distressed. The present setup, economic or constitutional, is not working for them, and they were led to believe (by a notably mendacious campaign) that leaving the EU would solve their problems.  Those who thought things couldn’t get any worse for them were not put off by George Osborne’s warnings about risk.

In that sense voters are like students – they give the answer to the question they would have liked the examiner to ask. But in this referendum, it was the question setters who failed.

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Beyond the referendum: “2016 should be the year in which Scottish devolution grows up”

Jim-Gallagher

It has now been a year since the vote on Scottish independence. Jim Gallagher considers how divisions which emerged between yes and no voters during the campaign have persisted, and the challenges this creates. He argues that Scotland now faces a different set of choices–not what country to belong to, but what sort of country it really wants to be.

Zhou Enlai is said to have quipped that 200 years was too short a time to judge the effect of the French Revolution. 12 months certainly isn’t long enough to assess the legacy of the Scottish referendum.

It was certainly an extraordinary process. For two years, Scotland talked about nothing but Scotland, and an unprecedented number of people eventually cast their vote, one way or another.

Energy and Division

The debate was extraordinary, sometimes energising, but also deeply divisive. Not just because people took opposing views. Yes voters – rationally or not – were hopeful; they wanted things to change and independence represented change. Many no voters were fearful; they had not asked to make this choice, and feared disruptive change would be forced on them.

The campaigning was unprecedented: the intensity of an election, but lasting two years. The opposing campaigns talked incessantly about Scotland, but hardly engaged with each other. The Scottish government’s doorstop of a White Paper was a partisan, not a government, publication. The relentless positivity of the yes campaign spoke primarily to the heart. Questions of economics or policy choice were airly dismissed as irrelevant, or establishment bluff. Better Together’s head was more firmly screwed on, but it’s hard to make saying no, even ‘no thanks’, sound positive. The UK government’s publications argued a case, but without much pizzazz.

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