Far from the drama we were promised, Brexit could bring unending deadlock while the independence debate is like to rumble on too, writes Paris Gourtsoyannis.
Oh, for the dog days of 2016, when Brexit felt like an event, kinetic and dangerous. When we were glued to screens and newspaper pages, wide-eyed with fear or excitement at what might happen next.
If only someone had told us: nothing much, really.
That’s how it’s felt for months now, whether in Brussels between the UK and the EU, or in London, Edinburgh and Cardiff, where the devolved administrations have waded through the constitutional fallout, ankle-deep in secondary legislation and baroque Privy Council procedure.
This is the paralysis created by retrofitting a stately centuries-old parliamentary democracy with the rocket of a popular referendum, or by picking at the thread of devolution only recently stitched into the delicate fabric of the constitution. Things stop working.
Between the UK and Scottish Governments, it seems clear that we’ve reached a point of some stability – a disagreement to agree. The two sides have principles that they refuse to abandon: in London, that the devolved administrations must not have a veto over powers that could impact internal and external trade after Brexit; in Edinburgh, that while those powers can be shared, it must only be with the explicit consent of the Scottish Parliament.
It’s important to remember that beyond that impasse, there is broad consensus over post-Brexit devolution, and talks have already begun to decide the nuts and bolts of how things will work in each policy area returning from Brussels. The SNP doesn’t want to be seen to be damaging the economy on a point of constitutional principle – it wants the UK to own all the negative Brexit headlines.
So can the Scottish Government refuse to endorse the UK’s ‘power grab’ while getting on with the business of making Brexit work? For an example of just such a skin-deep constitutional crisis, please indulge an example from the land of my birth.
After 36 years, successive provincial governments in Quebec, both pro- and anti-independence, have declined to ratify the Canadian constitution. Significantly, they have refused to do so despite a Supreme Court ruling that the constitution applies, in spite of provincial objection. The apparatus of state has continued to function – but failed attempts to bring Quebec into the fold contributed directly to the second independence referendum in 1995.
There is no reason why governments in London and Edinburgh couldn’t whistle their way around a similar constitutional lacuna as Brexit unfolds. The Scottish Parliament can refuse to pass, or explicitly reject legislative consent for the EU Withdrawal Bill, which the UK Government can note with regret. The Supreme Court could strike down the Scottish Government’s Continuity Bill, but it can’t force Nicola Sturgeon to rubber stamp Theresa May’s Brexit legislation.
Most of the time, the only people who notice constitutional rows as obscure as the current one are the people who already care, a lot. Both sides seem happy enough for their share of that group to believe either in a Westminster power grab, or a Holyrood constitutional obsession. For everyone else, they can just get on with it.
Meanwhile, in a macro sense, the UK as a whole shows every sign of being ungovernable. When it comes to the significant pillars of Brexit policy, Number 10’s authority only extends as far as the big black door, and doesn’t seem to cover the Cabinet room inside.
As horrific as the possibility sounds to everyone, even the people advancing it, there is growing talk that the deadlock over customs arrangements with the EU is so firm that only another election could break it.
While there’s a slim chance that might give this or another Prime Minister some added authority, it’s difficult to see how that would change the terms that Brussels is willing to offer.
If the worst possible outcome is a cliff-edge Brexit with no deal, the next worst thing might be a ‘Neverexit’, where talks drag on indefinitely, deadlines are repeatedly kicked into the distance, and businesses are never sure of the circumstances they have to trade in.
Coupled with a ‘Neverendum’ fuelled by obscure constitutional grievance, we could all be left pleading for some actual political drama again.