The Brexit referendum offers a cautionary tale and an unexpected opportunity. The cautionary tale is about the referendum as a decision making device. The unexpected opportunity arises from the effects of Brexit on the distribution of power amongst the legislatures and governments of the UK.
What’s wrong with referendums: a cautionary tale
Referendums are getting like buses: frequent but unpredictable. But they still get held up as the gold standard of democracy. The people make an authoritative decision after a state regulated campaign. But the Brexit referendum shows very clearly two distinct pathologies of this way of making political choices: in practice referendums can be anti-democratic or even toxic.
The case for Brexit was negative. People were encouraged to vote against Europe. Brexiteers presented a nationalist case of repatriating sovereignty, but the campaign was one against the European interference. "Taking back control" was the slogan, but getting rid of Brussels was the aim. But if people vote against something, they write a blank cheque for something else. The Brexit cheque was more than usually blank. The Leave campaign had no plan. They didn't (even) have something like the Scottish government's independence white paper. Three months afterwards, different Brexit ministers are squabbling to develop one. There is no consensus inside government, never mind Parliament or the wider country, on what sort of Brexit is desirable, or achievable in negotiation.
Referendums work well enough if you can deliver what’s on the question paper. So Parliament could have legislated for the Alternative Vote, for example. But when the outcome depends on someone else – 27 EU states say – campaigners promise what they can't deliver. So to persuade voters, Leave campaigners claimed the 27 would all agree to UK being part of a single market. They won’t, as Ministers are prioritising immigration control. As a result, it is quite likely the version of Brexit produced would not have commanded a majority had it been offered in the campaign. It's not too strong to argue that a referendum likely to produce something which a majority would have rejected is antidemocratic.
Nor is it obvious that ‘winner takes all’ is a genuinely democratic way of deciding irreversible, emotionally charged, existential issues. 48% of the UK is now to varying degrees angry or fearful. By focussing a hotly disputed issue, where opinion is evenly divided, down to a binary choice, Yes or No, Leave or Remain, a referendum pretty well guarantees to leave around half the voters resentful or bitter, rejecting the result. The legacy can be toxic. Governments would be better to look for options that satisfice, that give most people most of what they want, rather than all for some and nothing for others.
Little sign of that over Europe. David Cameron’s renegotiation efforts were an attempt to recognise Leave concerns, but were brushed aside in the campaign. Since then, the UK government's is moving towards a so-called hard Brexit rather than the obvious accommodation of rejoining the European Free Trade Area (addressing the economic concerns of remainers, while still leaving). This shows how one referendum pathology worsens another. Ideologically driven ministers claim a mandate for immigration control, as it's not clear what the majority actually voted for.
Lessons from the cautionary tale
The immediate reaction of many on the nationalist side in Scotland was to say that the Brexit result was a material change in circumstance justifying another Scottish referendum. Nicola Sturgeon initially said one was ‘highly likely’, though she has since rowed back. The emotional reaction is understandable. England has apparently diverged from Scotland, and the argument that UK guarantees EU membership is no longer valid. Emotion aside, however, the objective case for independence is harder to make after Brexit. An independent Scotland's EU position is not self-evident, sharing a currency with a non-EU state is unlikely to be acceptable, and there are new questions about a hard border with England. On top of the end of oil revenues, all this means independence becomes a much harder sell than even two years ago.
But the cautionary tale offers different lessons. The pathologies shown in Brexit are very likely be displayed in another Scottish referendum. First there is the problem of blank cheque. Sensitive to this challenge last time, the Scottish government produced a doorstop of a White Paper last time. It was to answer all voters' questions (e.g. would Scotland get into the Eurovision Song Contest…afraid so). But as with the Brexiteers’ vision of an independent Britain, much depends on decisions someone else makes. Last time, most obviously, currency. Another time, maybe border issues, or fiscal questions. And the more objectively difficult the case becomes, the stronger the temptation to fudge these questions to get voters over the line. But then Scotland could be in the position Britain is in today, only more so: persuaded of constitutional change, but discovering afterwards it doesn't do what was promised on the tin.
The second pathology should perhaps give Scottish ministers more pause. Referendums may answer questions, but do not settle issues, not if the country is evenly divided. 2014 is a test case: many nationalists were simply unwilling to take No for an answer. If we rerun 2014, why should we expect it to be any different? Polls suggest an another narrow decision to stay in the UK. Will losers remain resentful and bitter? A narrow decision the other way could, if anything, be worse. Nearly half of the citizens of the new state might feel no loyalty to it, or even deny its legitimacy, especially if it turned out that the promises which just achieved a majority were like those in the Brexit campaign. Neither outcome looks desirable. But that of course is what referendums can do: split people down the middle.
The paradoxical opportunity
The paradox in all this is that Brexit, and the way the UK government look like implementing it, offers the opportunity for Scotland (Northern Ireland and perhaps Wales too) to take the route of accommodation, rather than division. This opportunity presents because substantial new powers are coming back to the UK, and to all its governments. Handled correctly, this could give the chance to reset the constitutional arrangements for Scotland and the UK in a way which gave most people in Scotland most of what they want.
Additional powers for the Scottish Parliament and government are inevitable from Brexit. They will no longer be subject to European law. This matters most for devolved areas run from Europe today: most obviously agriculture, fisheries and environmental protection. Responsibility will flow from Brussels to Edinburgh, hardly touching the sides in London on the way. The UK government might be tempted to arrogate to itself the powers of control Brussels presently exercises, so as to substitute a common UK framework for a common European one. This would be an error, and unconstitutional anyway.
This is where the Sewel Convention does matter, rather than the talk of whether Holyrood might veto the Brexit decision or legislation. It is wholly unrealistic to imagine that Holyrood could prevent Westminster from legislating (or UK ministers from acting) on this reserved matter. One can parse the Convention in various ways to demonstrate this. As enunciated, and now enacted, it relates only to legislating on devolved matters. The practice of seeking consent before changing devolved powers via primary legislation to reflects the statutory provision in Scotland Act for dual consent to Orders in Council doing so. In any event, the convention has always been qualified by the undefined "normally", and whatever present circumstances are, they are not normal. While it is conceivable that this will end up in front of the courts, it is interesting that the Scottish government has not yet entered into any of the cases currently being pursued. Whether they do or not, the decision to leave the European Union is in the end a matter of politics not law.
This argument, however, does not wash for legislative changes on devolved matters which might be decided as a consequence of Brexit – for example creating a common UK agriculture or fisheries policy. That is slap bang in the middle of Sewel territory. The whole point of the convention is that Westminster does not legislate on these matters. So powers in these areas will indeed come straight to Holyrood. But they are, evidently, matters that require intergovernmental cooperation: that's why they are dealt with at the European level today.
The result is inevitably that post-Brexit the UK's devolved administrations will become more powerful, and the UK government will have to deal with them as equals on a range of areas. This contrasts with today's intergovernmental relations, where Whitehall seldom has two treat to get what it wants. The dynamic of the relationship will change markedly.
Transforming the UK's territorial relations
This change is inevitable, and to be welcomed. But Brexit could become transformational of the UK's internal territorial relations. Here are two proposals that would do so.
Scotland and Northern Ireland both voted to remain in the EU, but by virtue of being in the UK will leave it. That is unavoidable, but the whole purpose of devolution is to allow for diversity in matters which need not be uniform. It would be entirely possible for the devolved administrations in both places to enter into international agreements with the EU in relation to devolved matters. This would require an amendment of the reservations or excepted matters in the relevant devolution legislation. It is not purely symbolic: Scotland might buy into Erasmus studentships, or EU research programs; arrange reciprocal health service access with EU states; enforce the European arrest warrant, or court judgements under EU auspices, and no doubt others. (Even join the common fisheries policy.) There is nothing unprecedented about a sub-state entity making international agreements. In Northern Ireland already there is a specific statutory loosening of the exception (ie reservation) of foreign affairs to allow has the power to treat with the Republic. This approach is seen in Belgium also. But lifting the reservation would give devolved administrations an international personality of their own, allowing them to act independently internationally as well as domestically in relation to devolved matters.
This opportunity arises from the Brexit vote. Another arises from the way the UK government looks like implementing it. They will prioritise immigration control, but will not introduce border checks or visas for EU citizens. This is partly because of the commitment to a common travel area with Ireland: border controls are physically and politically impossible between north and south. Nor are they readily practicable other entrances to the UK. So control of EU migration will be on what has been called a ‘point’ basis – not at the border, but inside the country. Employers will have to check whether people are entitled to work; maybe even landlords or public service providers whether they are entitled to reside or benefit from services. There are many good arguments against point control of immigration: but unlike border control it can be different for different parts of the country, and so opens up the possibility of devolving EU migration.
There are good policy arguments for this anyway. Successive Scottish governments have worried about Scotland's demographics, and looked for immigration flexibilities to deal with this. An unexpected consequence of the UK government’s Brexit stance is to make this possible.
All this, on top of the major changes in train, adds up to quite a different kind of UK, one which feels more like a confederation of nations of different sizes with shared defence, economic management and welfare, but very distinct approaches in the smaller nations. Such a UK would need different coordination mechanisms, real intergovernmental relations, and oversight of those, perhaps from slightly different kind of second chamber. This is potentially the sort of strategic compromise or accommodation which could give most Scots most of what they want from the constitution. It would be an alternative to another potentially pathological referendum, which would then be off the table for the promised generation.
Jim Gallagher is a member of Nuffield College, Oxford, and a Visiting Professor at Glasgow University. His Nuffield working paper Britain after Brexit: toxic referendums and territorial constitutions is available at http://ggcpp.nuff.ox.ac.uk/wp-content/uploads/2016/10/Britain-after-Brexit-Toxic-Referendums-and-Territorial-Constitutions.pdf.