Iain Macwhirter: Dumb Brexit means 2016 will go down as the year the Union died

IT’S become a Christmas cliche that 2016 has been a year of revolutions – like the Glorious Revolution of 1688, the continental anti-royal rebellions of 1848, the Russian revolution of 1917, or the French and Czech revolts of 1968. Take your pick. And there is no doubt that from a constitutional point of view, 2016 will inevitably go down as a turning point in the history of the United Kingdom, comparable to 1707 when the Union was created. Whatever happens Britain will never be the same again.

Compare and contrast those previous revolutionary years with the 2016 Brexit revolution. Its most distinguishing feature is its ignorance. It’s not so much red, white and blue Brexit, but stupid Brexit. It has no philosophy. There is no John Locke of Brexit, nor Tom Paine, no Karl Marx, no Jean Monnet. The intellectual driving force of Brexit has been the Ukip’s laughing gnome, Nigel Farage. There is no wisdom behind Brexit, only a vague fear of foreigners and a mantra of “taking back control”.

In the past week the Brexit bourach has been displayed in all its dismal glory. We had the strange suggestion from the International Trade Secretary, Liam Fox, that Britain might remain in the EU Customs Union after Article 50 – meaning that we leave the EU only to hand control back to the EU to negotiate British trade relations with the rest of the world and set the tariffs on British imports. That would surely be the worst of both worlds.

We also had the admission from Prime Minster Theresa May that there will be a “transitional period” after Brexit under which Britain remains to all intents and purposes a continuing member of the European single market. This betrays not only the intellectual vacuity of Brexit but its utter naivete. Does Mrs May seriously believe that the 27 remaining states of the EU are going to allow Britain to retain the privileges of being part of the single market even as it seeks to undermine it by striking preferential trade deals with non EU countries?

But dumb Brexit was most obviously the order of the day yesterday as the Prime Minister airily dismissed the Scottish Government’s proposals for a halfway house under which Scotland would remain in the European single market even as the UK leaves it by joining the European Economic Area. There are many practical difficulties with this Norway-style arrangement, but the UK government is stupid to reject it out of hand.

There could be many advantages to the UK in Scotland retaining a foothold in Europe. It could prevent companies relocating en masse to the EU for a start. There is already going to be a porous border between Northern Ireland, which will be out of the EU, and the Republic of Ireland which remains in it. Having another “backdoor” as it were into the European single market – the destination of 40% of the rest of the UK’s exports – could be very useful.

But even if the UK Government does not see any advantages in Scotland remaining partially in Europe, the canny thing to have done would have been to call First Minister Nicola Sturgeon’s bluff and say: Of course, go ahead, with our blessing. If you think you can persuade the EU to let Scotland stay in the single market, just try. The EU would have had to decline any such approach because the UK is the member state and Scotland has no legal standing in the Brexit negotiations.

There are many examples of sub-state entities that have unconventional relations with the EU such as the Channel Islands, the Faroes, Greenland, Svalbard – though they tend to be small and/or ‘remote’. Regional parliaments in countries such as Austria, Belgium and Germany do have the power to negotiate treaties in their own areas of competence. Under the so called “in foro interno, in foro externo” principle, the Belgian regional parliament of Flanders has negotiated independently of Brussels in areas such as education.

However, these are arrangements for regions of member states. There is no obvious mechanism to discuss such arrangements with a state that is leaving the European Union. The Scottish Government’s options paper suggested that the rest of the UK could decide to leave the EU and “sponsor” Scotland to remain within the EEA. That requires an effort of imagination that is clearly beyond the wit of the present UK Government. It would effectively require Britain to rejoin EFTA, the European Free Trade Association, and the EEA, only to leave it again, sans Scotland.

After giving the Scottish Government freedom to try to achieve a bilateral deal with Brussels, knowing that it would fail, the UK government should have shifted the focus of negotiation to the powers Holyrood could stand to gain when laws are repatriated from Brussels – the Brexit bonus as it was described before the June referendum.

A thinking British Government would say, here’s the deal: You can have all the powers you want short of those required by Westminster to run the UK single market, which must replace the EU single market. You can have agriculture, fisheries, environment, even points-based immigration, as offered by the former Tory Lord Chancellor, Michael Gove.

Scotland would be free to negotiate any deals it wants with Europe on pollution controls, GM crops, arrest warrants. You can do Erasmus scholarships, Horizon research funding. Scots could even retain EU citizenship if they wanted it. But what Scotland doesn’t get are the responsibilities that used to be run from Brussels: competition policy, labour law, trade relations, etc. What could be fairer than that?

The UK government could be cheeky and say that it is giving Scotland, in effect, what nationalists wanted in the 2013 Independence White Paper. That document presupposed a single British market, retention of the pound, continuation of the monarchy and a raft of institutions such as the BBC. It was really a confederal proposal, not outright independence. The difference is that now the single market would be a UK one, not a European one.

This could be presented as the basis of the new federal United Kingdom. Not the status quo ante, but a Union based on a presumption that the Scottish Parliament exercises true sovereignty over the areas of its competence, and under “in foro externo” can do what it wants with Europe. This would require a new Act of Union to accompany the Great Repeal Act.

This would not rule out forever another independence referendum but it would make it very difficult for Nicola Sturgeon or any SNP leader to call one. Such a transfer of sovereignty would appeal to many Scottish voters who want to retain links with the UK even after independence. It would also peel off a number of SNP figures such as former ministers Alex Neil and Kenny MacAskill who see the opportunities of federalism.

But all this would require a degree of constitutional wisdom from the UK that is entirely absent. The revanchist philistines of Brexit are incapable of seeing any virtue in recognising Scotland’s right to a different deal. They are essentially neurotic control freaks who blanche at the very thought of Scotland having more autonomy. Dumb Brexit will eventually force Scotland to take the only course available to protect its long term interests, which is independence.

This means that 2016 will go down in history as the year the Union died.

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