In an uber-Leave Brexit, London, not the devolved parliaments, would “take back control” over powers currently exercised by the EU and that would result in the Union becoming less stable, writes Dr Nikos Skoutaris
Ten days before the UK is supposed to withdraw from the EU, Westminster has not yet approved the terms of such withdrawal. Broadly speaking, those concern the protection of the rights of EU citizens living in the UK and UK citizens’ living in the EU; the financial settlement; the terms of the transition; and ensuring that the Irish border remains frictionless in order for the Good Friday Agreement to be protected. The latter has become the Schleswig-Holstein Question of our times.
The revised Withdrawal Agreement recognises that, de jure, Northern Ireland remains within the UK customs union. At the same time, the province will be applying large swathes of EU law in the area of free movement of goods making it, de facto, part of the EU customs territory. Such differentiated arrangement could mean that Northern Ireland will potentially be enjoying a much closer relationship with the EU than the rest of the UK when Brexit takes place.
The Foreign Secretary, Dominic Raab, has described it as a “cracking deal” for Northern Ireland. He argued that the agreement would give the region the best of both worlds because it would remain in the UK customs territory while having access to the European single market for goods.
Putting the irony of having an ardent Brexiteer arguing in favour of the benefits of access to the single market aside for a minute, one has to wonder whether the revision to the Withdrawal Agreement that Boris Johnson achieved is also a “cracking deal” for the Union as a whole. Starting with Northern Ireland itself, the revised arrangement provides for the necessary bare minimum to avoid a physical land border. Given the region’s turbulent past and the stark warnings from civil servants on the potential security risks that a hard border entails this is a very welcome development.
Create grievances in Scotland
And yet, the fact that the current Prime Minister has opted for a Northern Ireland-specific arrangement might still disturb the fragile balance of the UK territorial constitution. Theresa May’s deal envisaged a close relationship based on a customs union with the EU for the whole of the UK both as a fallback for and a starting point of the upcoming trade negotiations. In contrast, Boris Johnson has decided that a free trade deal that would allow the possibility for significant divergence from EU law standards should be the aim for the UK-EU future relationship. Such divergence has the potential of hardening the border in the Irish Sea between Northern Ireland and Great Britain, something that the Unionists have long declared that they find unacceptable.
It may also create significant grievances in Scotland. The Scottish Government has highlighted numerous times that the Scottish electorate overwhelmingly voted to remain in the EU. Still, Scotland is forced to follow a hard Brexit chosen by Whitehall while at the same time another constituent nation will be enjoying a differentiated arrangement with the EU.
More significantly, it seems that the prospect of a no-deal or even a hard Brexit increases the possibility of an independent Scotland. If a future independence referendum takes place in a hard-Brexit environment, two of the main arguments of the 2014 ‘No’ campaign will be seriously compromised. First, it would be impossible for the ‘No’ side to argue that only through remaining in the UK, Scotland’s position in the EU is secure as they did back in 2014. Second, if the experts are proved right with regard to the economic consequences of Boris Johnson’s deal, the economic argument of the ‘No’ side will also be weakened.
EU law ‘like an incoming tide’
This does not mean that such hard version of Brexit makes Scottish independence any easier. If Scotland finds itself outside the EU in accordance with the deal currently on table, then, its “laws, policies and regulatory structures could diverge sharply from the EU’s”. This could make its EU accession process, once independent, more time-consuming and potentially cumbersome.
More importantly, if the UK follows the buccaneering vision of the passionate proponents of Brexit, Hadrian’s Wall might turn into the new Irish border, if Scotland chooses independence. Not only would such situation make the accession negotiations more complicated but it could also jeopardise the economic relations between Scotland and its biggest economic partner south of the Border.
Lord Denning’s famous metaphor of EU law being “like an incoming tide. It flows into the estuaries and up the rivers” has meant that Brexit would always be a very sophisticated and time-consuming exercise. The disentanglement of those two highly integrated legal orders entails the danger of disturbing the fragile balance of the UK territorial constitution.
The intoxicating cry of “taking back control” raises the question of who exactly should do that? Is it the UK as a whole? The constituent nations? The people that voted Brexit? The Parliament? There is an inherent contradiction in the uber-leave position as expressed by certain members of the governing party and their allies. The more London “takes back control” at the expense of the constituent nations, the less stable the Union becomes.
Dr Nikos Skoutaris is an associate professor in EU law at the University of East Anglia. His website, skoutaris.eu, focuses on Secessions, Constitutions and EU law. Follow him on Twitter @NikosSkoutaris.