Editorial of November 2019

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 by Allan F. Tatham, Professor at Facultad de Derecho, Universidad San Pablo CEU

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“Does Britain have a great future behind it?”: The stress of Brexit on a (Dis)United Kingdom

Introduction

Whatever the results of the British general election on 12 December 2019, Brexit will have major implications for the populations and governance arrangements of the four nations – England, Scotland, Wales and Northern Ireland – and their continuing membership of the United Kingdom (UK). The present author has already discussed the constitutional implications of a vote to leave the European Union (EU).[i] This discussion instead will briefly highlight how the results of that referendum and the ensuing three years or so have increasingly led two of the smaller “devolved” nations (England makes up over 85% of the UK’s total population of some 66.5 million people) to reassess their position in the UK.

The Brexit referendum itself of June 2016 revealed both inter-nation and intra-nation division. According to the figures,[ii] majorities in England and Wales voted to leave, while most voters in Scotland and Northern Ireland (as well as Gibraltar) opted for remain. Yet even these results are more nuanced than first appear: London also voted to remain as did some other cities (e.g., Bristol, Leeds, Liverpool, Manchester, Newcastle) though by differing margins. Moreover recent research[iii] has shown that in Wales, areas with predominantly Welsh-speakers had voted to remain (as did Cardiff) while many of the 21% English-born voters had voted leave. The picture in Northern Ireland was no less complex: there, the nationalist community voted overwhelmingly for remain, while the unionist community voted largely (though much less decisively) for leave.

Northern Ireland

Of the four nations, this is the one most directly affected by Brexit since it will be the only part of the UK with an external border with the EU (Ireland). It is also the only devolved nation, according to the 1998 Good Friday/Belfast Peace Agreement, that has in effect the legal right to secede from the UK, once a referendum has been held. In fact the most intractable issue in the Brexit negotiations has proved to be finding a solution to the Northern Irish trilemma: fulfilling the UK Government’s promise to leave the EU customs union and single market; to preserve British “territorial integrity”; and to continue its commitment to the peace agreement. However, leaving the customs union and single market would have meant the re-imposition a hard (or physical) border between the North and the South of the island of Ireland, entailing checks and customs duties: this represented for all parties a direct threat to the peace agreements. A way forward out of this trilemma was needed in order to avoid (or at least minimise) the immense social and economic dislocation implicit in a no-deal Brexit; this presented the negotiators with an immense task.
In August 2016, the leaders of the then power-sharing Northern Irish executive, Arlene Foster, First Minister (Democratic Unionist Party, DUP) and Martin McGuiness, Deputy First Minister (Sinn Féin, the main nationalist/republican party) wrote a joint letter[iv] to the new British Prime Minister, Theresa May, with their initial assessment of the potential effect of Brexit on Northern Ireland, particularly the economy, and the importance of making sure the border did not impede the peace process.

This joint approach sadly did not last: for internal political reasons unrelated to Brexit, the power-sharing executive came to an end in January 2017 and has not been resurrected since. More importantly, Northern Irish interests in the Brexit negotiations were ultimately left in the hands of the DUP which, through its confidence and supply arrangement with May’s Conservative Government (following the indecisive results of the March 2017 general election), ultimately kept her in power in Westminster.

Such pseudo-coalition had two important impacts on the negotiations. First, in the eyes of the nationalist parties in Northern Ireland (Sinn Féin, SF, and the Social Democratic and Labour Party, SDLP), it removed the UK Government from the position as “joint honest broker” with the Irish Government as guarantors of the 1998 Good Friday Agreement. Secondly, it put the DUP in the driving seat for determining the nature of post-Brexit relations with Ireland and gave it an effective veto over any British Government compromises that did not comply with its position.

In this way, the party largely representing the Brexit voting minority in Northern Ireland became a major player in resolving the trilemma, even going so far as to join Conservative Eurosceptic backbenchers calling for a no-deal Brexit. This became their joint cause célèbre when, in the November 2018 Withdrawal Agreement, May agreed in a protocol to the so-called “backstop” or “safeguard”. This arrangement would have had the effect of keeping Northern Ireland (and ostensibly the rest of the UK) in the EU customs union and flanking provisions of the single market related to free movement of goods, pending the conclusion of a free trade agreement with the EU post-Brexit. Since this backstop had no time limit and provided no unilateral right for the UK to leave, the DUP and the Eurosceptics in the UK Parliament opposed it.

Johnson’s amended protocol on the issue (October 2019) potentially undermines the unity of the UK. It allows a customs border to be drawn down the Irish Sea, between Great Britain and the island of Ireland, with different rules applicable depending on the ultimate destination of the product while keeping free movement in goods between the north and south of the island. According to the new terms, the DUP would have no veto over the extension of this arrangement to four or even eight years after the Brexit transition period (initially set to finish at the end of 2020). The Conservative Eurosceptics however accepted Johnson’s changes and, in a volte-face, deserted their erstwhile DUP allies. The party now fears both a severe curtailment of its influence as well as an incremental absorption of the North’s economy into that of the South with all the long-term economic and social implications that it carries for reunification.

For its part, SF has continued to remain steadfastly opposed to Brexit: its then leader, Martin McGuinness, suggested a referendum on the reunification of Ireland immediately after the 2016 United Kingdom European Union membership referendum results were announced.[v] This stance was later reiterated by Mary Lou McDonald (SF party leader since 2018) as a way of resolving the border issues raised by Brexit[vi]. Although this might have once appeared to be wishful thinking, demographics, voting preferences, and opinions on the issue have moved in recent years. In the next two years, the Catholic/nationalist community will likely become the majority in the North for the first time since partition of the island in the 1920s[vii] (although this should not mean that all members of this community are seeking Irish reunification). While that community almost exclusively voted to remain in 2016, a number of unionist voters also did so. In addition, the Alliance Party and its supporters may play a pivotal role in the coming future. Over the last 15 years, this party has regularly claimed 5-10% of the vote and represents people who not identify with either the Catholic/nationalist or the Protestant/unionist community. Members of this group may appear more flexible or fluid in respect of an evolving Northern Irish identity and could hold the key to change together with those moderate unionists who might see the road to economic well-being leading south rather than across the Irish Sea.

In this context, a recent opinion poll[viii] indicated (for the first time) a slim majority for unification than to continue in the UK and commentators are currently discussing reunification in the modest time span of 5-10 years. Needless to say, it will be some time before Sinn Féin exercises it right to call for a border poll under the terms of the Good Friday Agreement[ix] but that moment seems to some no longer to be a matter of “if” but rather “when”.

Scotland

In Scotland, the 2016 referendum re-ignited the debate on secession that had been considered to be at least put off for another generation when Scotland voted against independence in its own referendum in 2014. In the immediate aftermath of the Brexit vote, in which her nation had voted clearly for remain (62%), Nicola Sturgeon (Scottish National Party, SNP), the First Minister for Scotland, stated[x]: “I have made clear to the prime minister [Theresa May] this morning that the Scottish government must be fully and directly involved in any and all decisions about the next steps that the UK government intends to take. We will also be seeking direct discussions with the EU institutions and its member states, including the earliest possible meeting with the President of the European Commission. I will also be communicating over this weekend with each EU member state to make clear that Scotland has voted to stay in the EU – and that I intend to discuss all options for doing so”.

This approach may be considered part of the SNP’s general understanding of independence within Europe. This evidenced a remarkable turnaround in Scottish nationalist thought and in the SNP under the leadership of Alex Salmond (1990-2000, 2004-2014) and latterly Sturgeon (2014-date): formerly the SNP had taken positions opposed to retaining the British monarchy on independence and in favour of leaving NATO, while remaining sceptical about the then EEC. Following the introduction of devolved government in the late 1990s under the British (Labour) Government, the SNP began to reverse those policies. At the same time, it moved from the (radical) left to become very much a mainstream party, articulating a particular vision of Scottish identity and autonomy, different from that of Scottish Labour and the Scottish Liberal Democrats (both “pro-unionist” in the 2014 independence referendum). North of the border with England, Scottish politics and identity have continued to evolve, with a noticeable reduction in support for both the Conservatives and Labour.

Sturgeon and the SNP have maintained their Europhile credentials before, during and after the referendum. For example, in framing the British statute that legislated for the 2016 referendum, she had tried (and failed) to have amendments passed that would have prevented any nation that had voted to remain to be forcibly made to leave the EU if the rest of the UK voted for Brexit[xi].

The representation of Scottish (and other devolved nations’) interests during the Brexit negotiations also fell well short of what had been promised. Although the UK was the negotiating for the whole country, a lack of true consultation, representativeness and transparency during those withdrawal talks marred relations between the British and devolved governments. It was thus evident to Sturgeon, the SNP and many in Scotland that their legitimate national interests were not being articulated or protected by London.

Against this backdrop, the “indyref2” idea was born[xii]. The SNP had previously accepted the result of the 2014 referendum and had put aside independence for the mid-term, promoting the position of Scotland remaining in the EU through UK membership. But it made one caveat, set out in its May 2016 election manifesto for the Scottish Parliament: namely, another independence referendum should be held if there were a material change of circumstances, such as the UK leaving the EU. Brexit represents such a “material change”, a complete reordering of Scotland’s relations internationally without apparent regard for its national interests. Unlike in Northern Ireland, Sturgeon would have to seek the necessary statutory authority from Westminster to hold such a referendum. Within the context of the UK’s impending withdrawal, opinion polls are showing an increasing majority in favour of independence[xiii] (and ultimate EU readmission) as the best way of preserving Scottish interests rather than working through Westminster and Whitehall. Sturgeon recently signalled[xiv] her willingness to fight Westminster, whichever party comes to power after the 12 December 2019 election, to obtain the necessary power to hold “indyref2”.

Conclusion

The now rather inaptly named Conservative and Unionist Party seems to have triggered a further stage in the loosening of bonds that hold the UK together. Coming so soon after the one on Scottish independence, the Brexit referendum and the subsequent capture of the Party by the Eurosceptic wing with its inherent turn further to the right, have together impacted on the continuing relevance of the Union of the three smaller nations.

In fact, when Conservative leave voters were polled[xv] as to whether they would prefer to get Brexit done to the continuing UK membership of Scotland or Northern Ireland, they came out overwhelmingly in favour of leaving the EU. This attitude has not gone unnoticed in the corridors of power in Belfast and Edinburgh or by the general public in the two nations concerned. There appears to be a growing realisation in them (and elsewhere) that the Conservative Party is, in reality, the English nationalist party, and that the interests of these two nations may be better served by their own post-Brexit accession to the EU following either reunification (Northern Ireland) or independence (Scotland).

[i] https://www.mastermepa.santannapisa.it/sites/default/files/tatham_finale_0.pdf.

[ii] https://www.electoralcommission.org.uk/who-we-are-and-what-we-do/elections-and-referendums/past-elections-and-referendums/eu-referendum/results-and-turnout-eu-referendum.

[iii] https://www.theguardian.com/uk-news/2019/sep/22/english-people-wales-brexit-research.

[iv] https://www.executiveoffice-ni.gov.uk/publications/letter-prime-minister-rt-hon-theresa-may-mp

[v] https://www.independent.co.uk/news/uk/politics/brexit-northern-ireland-eu-referendum-result-latest-live-border-poll-united-martin-mcguinness-a7099276.html.

[vi] https://www.france24.com/en/20180226-northern-ireland-sinn-fein-mary-lou-mcdonald-reunification-referendum-brexit.

[vii] https://www.bbc.com/news/uk-northern-ireland-43823506.

[viii] https://www.belfasttelegraph.co.uk/news/northern-ireland/slight-majority-for-irish-reunification-in-northern-ireland-poll-claims-38489240.html.

[ix] https://www.belfasttelegraph.co.uk/news/brexit/brexit-chaos-fears-means-time-not-right-for-united-ireland-poll-says-sinn-feins-mcdonald-37170035.html.

[x] https://www.holyrood.com/inside-politics/view,nicola-sturgeon-responds-to-the-brexit-vote-read-her-speech-in-full_11960.htm.

[xi] https://www.theguardian.com/politics/2014/oct/29/nicola-sturgeon-scottish-veto-eu-referendum.

[xii] https://www.independent.co.uk/news/uk/politics/second-scottish-independence-live-referendum-nicola-sturgeon-brexit-speech-second-indy-ref-2-uk-eu-a7626746.html.