Scotland’s Place in Europe

Fundamentally, by way of a revision to the Scotland Act, the Scottish Government is entitled to ask the UK Government to transfer power over reserved matters to the Scottish Parliament.  But that is not the issue with the publication “Scotland’s Place in Europe”.  Clearly the Scottish Government intend the UK Government to act on the recommendations and thereby bind Scotland to the outcome.  The issue is therefore whether the Scottish Government is acting responsibly by making such material proposals without a mandate by an election, or a referendum, or with the consent of the Scottish Parliament.


The proposals, which are referred to as “differentiation” are not only flawed they are also unnecessary for the purposes of requesting a Section 30 order.  They would require not just the UK to compromise its rights but also the EU to compromise its requirements for membership.  Moreover, the Draft Referendum Bill has, tentatively, started that process.  The majority voting in Scotland on 23 June decided that the UK – thereby Scotland as part of the UK – should remain in the EU.  That vote cannot be safely said to give the Scottish Government a mandate to a whole new set of proposals six months later.  Such proposals could have been set out prior to the vote last June.


The Scottish Government only has a mandate – by way of their manifesto for the last Election – to ask the UK Government to issue a Section 30 order if there is a “material change”.  (It is not a mandate to change the constitutional position of Scotland within the UK).  Giving an Article 50 notice to exit the EU can be reasonably argued to be a “material change”.  It is beyond dispute that the UK Government has a mandate to give notice under Article 50.  What they arguably haven’t got is a mandate to agree the terms of treaty revisions without Parliament’s agreement.  (The Scottish Government’s options would fall in the scope of treaty revisions and require unanimity amongst EU member States).  The Supreme Court is presently deciding this issue.


It may be premature for the Scottish Government to legislate on their proposals – which are intended to keep Scotland in the EU or EFTA/EEA.  But, in their capacity as a minority government in Holyrood, have they got an exceptional duty to obtain a mandate by one of the three routes open to them?  Are the Scottish Government by-passing the democratic process?  Its worthy of note that the “White Paper” published in November 2013 was debated “in full” in Holyrood, “to give members of the Scottish Parliament a chance to examine the 670-page document in more detail”.


But the mandate given to the Scottish Government to hold a referendum is not legally binding.  In the case of R Wheeler v Office of the Prime Minister, Lord Justice Richards and Justice MacKay inter alia found that a manifesto promise is a political matter and not a matter for the Courts.  It is therefore a political decision for the Scottish Government as to whether it triggers a referendum – maybe in the Spring of 2017 – after the UK Government issues an Article 50 notice.


It is worth noting that the default outcome of an Article 50 notice is that the UK will exit the EU after two years and existing treaties will be annulled.  Negotiations and revisions to treaties will no doubt go on long afterwards.  Moreover, it can be expected, subject to interim agreement on timing that the UK will exit the “single market” at the time of exiting the EU, or sometime thereafter.  It is also worth noting that the “single market” is said by EU Commission to be irrevocably predicated on the “four freedoms”.  There can be little doubt that one of which, the freedom of movement of EU citizens, is a “red line” issue for the UK going forward.

However, the Lord Advocate in his submission to the Appeal on the application of The Queen v The SoS for Exiting the EU opined that a change in constitutional arrangements requires the consent of the Scottish Parliament.  In proposing that Scotland may have a different on-going relationship with the EU than the rest of the UK, on the basis of the Lord Advocate’s opinion, that constitutional change would require the consent of the Scottish Parliament.  In the absence of such consent any proposal can only be described as being advisory. Whereas the Scottish Government are attempting to bind the UK Government to a course of action to materially change a constitutional arrangement which does not have the consent of the Scottish Parliament.  Moreover, unlike the “White Paper” in 2013 it hasn’t even been debated by the Scottish Parliament.  The debate should cover the ramifications which could arise, many of which would be material.


It is reasonable to conclude that by seeking to qualifying the meaning of a “material change” Scotland’s Place in Europe is a political ploy to delay – or even avoid – triggering a second independence referendum.  Avoiding a debate in the Scottish Parliament is an act of political hypocrisy and inconsistency.  The Scottish Government and the SNP on the one hand argue widely – and is conjoined with the Claimants in the Appeal – that the UK Government cannot use the Royal Prerogative and has to debate its plans for Brexit in Parliament.  On the other hand it admits it doesn’t have a prerogative but pursues its plans without debate in the Holyrood Parliament.


The inconsistency goes deeper.  In the Foreword to “Scotland’s Place in Europe”, under explanation that her preferred option is Independence, the First Minister declares:

“It is our determination to ensure Scotland’s voice is heard, and acted upon.  That is the hallmark of the Scottish Government’s approach”.


But there is no evidence that what the Scottish Government proposes can be categorised as “Scotland’s voice”.  The only evidence the Scottish Government can rely on is that in the June Referendum a majority of Scottish Voters who voted did so for the UK to stay in the EU.  It is unsafe to translate this into being the majority’s wish to remain in the EU rather than the UK, or indeed that they are determined to stay in the European Single Market, as the First Minister claims.  It is also unsafe to assume that the majority of Scottish voters would not rather accept some compromise around the “Four Freedoms” than risk breaking with the UK.


It can be said that Scottish Government opinion that the best way of staying in the European Single Market is by way of the EEA may not be the “voice of the Scottish people”.  But it can be said to be the opinion of the Scottish Government.  Moreover the UK Government should give the thought appropriate consideration and response.


However, the Scottish Government asserts that their proposals on differentiation are “the democratic wishes of the majority of the Scottish electorate and their politicians”.  There is no evidence that any of this is factually correct.  But, under explanation that by “differentiation” the Scottish Government mean that Scotland would remain as part of the EU through a model not dissimilar to the “Norway Model”, their proposal is only likely to be accomplished by Scotland being an independent country.


In conclusion.  In the absence of the Scottish Parliament’s consent “Scotland’s Place in Europe” makes unfounded misrepresentation that it is in effect the will of the majority of Scottish people and their politicians.  It implies that the majority of Scottish voters would prefer to stay in the EU rather than the UK.   There is no evidence that this is factually accurate.  Moreover, having regard to its own submission to the Appeal in the matter of The Queen v The SoS for Exiting the EU the Scottish Government should have debated the proposals before their publication.  Under these circumstances the Scottish Government should confirm what progress is intended for the Draft Referendum Bill.