The UK’s coming EU referendum (2 of 2)

By Daniel Kenealy

For the first part of this post click here.

In the second part of this post on the coming EU referendum I turn my attention to the Scottish dimension of the issue. At the committee meeting on Thursday, we spent quite some time on this. In this post I want to touch on a few things. First, what specific Scottish interests that might exist in this debate? Second, can Scottish interests can be well advanced and defended? Third, should we vote as one single United Kingdom in the referendum?

Helpfully, the First Minister set out some specific Scottish interests in a speech last Tuesday at the European Policy Centre (or, if you don’t want to read the speech, watch it here). She was clear that, in her opinion, this is an unnecessary referendum. Much of what Scotland should want from the EU – a more concerted effort to complete the single market in services, an effort to create a truly digital single market, greater willingness to allow flexibility in national policies when issues of public health are at stake – can be accomplished without any Treaty change and any renegotiation. Such things should be part of the day-to-day business of building alliances and forging new initatives with our European partners.

It was also commendable that the First Minister took issue with the centrality that EU migration has in this debate. She was clear that EU migrants make a net contribution to Scotland and showed no willingness to wade into the debate about whether they should be treated differently from the status quo, or whether they should have their access to benefits restricted.

One thing that does need to be considered is whether Scotland should be able to treat EU migrants differently, in terms of access to benefits, than they would be treated in England and Wales. For example, let’s imagine that the UK gets some variant of what it wants and is able to exclude EU migrants from accessing certain in-work benefits for a number of years. Could the Scottish Government decide to do things differently?

This brings us to the proposed powers over welfare in the draft Scotland Bill. The Bill, based on the recommendations of the Smith Commission, suggests that the Scottish Parliament will be empowered to create new benefits in devolved areas and to top up existing benefits. Is this sufficient to be able to offer EU migrants access to benefits in Scotland that they’d be denied in England and Wales? Most likely not. It should not be over-estimated how great a gap in attitudes towards migration and welfare exists between Scotland and the rest of the UK. The notion that a Scottish Government would want to extend additional benefits to EU migrants might be fanciful. But, if they did, then the current powers in the draft Scotland Bill may fall short.

Insofar as the actual negotiations are concerned the governments of Scotland, Wales and Northern Ireland will struggle to make their voices heard. It is well documented that the UK’s system of intergovernmental relations leaves much to be desired. The official mechanisms through which these relations are managed – the Joint Ministerial Committees – are not decision-making bodies and offer little more than an opportunity for devolved governments to ‘have their say’. When the interests of the UK government and the devolved governments diverge, these mechanisms are at their least effective.

Scottish ministers (and opposition politicians) will be able to make their voices publicly heard in the coming debate. And the Scottish Government office in Brussels will be central to keeping on top of the development of negotiations. The UK’s top diplomat in Brussels – Ivan Rogers – is apparently keen to ensure that the UK’s various representations to the EU work coherently and efficiently over the coming months. But, even with the promised reforms to the intergovernmental system, it’s hard to see how the devolved governments can truly influence what’s about to happen.

Of course there was a heavy dose of politics in Tuesday’s speech. The First Minister addressed the scenario of Scotland facing the prospect of exit from the EU against its will (that is the scenario in which the rest of the UK voted to leave, but in Scotland the vote produced a majority in favour of staying in). The First Minister said that eventuality “could produce a clamour for another independence referendum which may well be unstoppable.” Put differently, Scotland could find itself in a situation where it has to choose between its membership of two unions – the UK and the EU.

She went on: “Of course, it is open to the UK government to stop that happening, by agreeing to the ‘double majority’ provision.” This is something that the First Minister raised last year and that, last week, was supported by the First Minister of Wales, Labour’s Carwyn Jones. The proposal is that all four constituent parts of the UK (England, Scotland, Wales, Northern Ireland) would have to vote ‘No’ in the referendum in order for Brexit to occur.

Is this proposal worth considering? In my opinion, no it is not and for a few simple reasons. First, based on the results of a recent survey conducted by myself and colleagues the public are opposed to it (table 10 in linked document). Even in Scotland 55% are opposed and favour an overall UK majority decision (compared to 68% in England, 60% in Northern Ireland, and 64% in Wales).

The First Minister has suggested that, because other federal states have super majorities and/or multiple thresholds in order for constitutional change to occur, this proposal is simply to replicate practices elsewhere. But the UK is not a federal state, or anything like one. And what the First Minister is actually proposing is not a super majority requirement, but rather a veto for each constituent part. I know of no state, federal or otherwise, that operates such a system.

The nearest comparator would be Australia where referendums work on a double majority system in which a majority of all those voting must back a proposal, as well as majorities in four of the six states of Australia. There is also a provision for a triple majority system, used very rarely, in situations where a specific Australian state is clearly and disproportionately affected by a proposed change. In that situation not only must the first two majorities be met, but a majority must be secured in the specific state or states.

A more reasonable proposal might be to have the UK vote in the upcoming referendum on a regional basis. This is how we already vote in European Parliament elections where voters are divided into 12 ‘units’ (Scotland, Wales, Northern Ireland, 8 regions in England, and London). We could adopt a system where majorities would be required in 8 out of those 12 units, plus an overall majority of votes cast across the UK, before EU exit was possible.

It seems highly unlikely that the Prime Minister will budge on this issue. It would be politically difficult for him to be seen to be erecting additional hurdles before Brexit could happen. It could trigger an early revolt by many of his eurosceptic backbenchers. So, it would appear that the SNP will be able to continually bang that drum, arguing that Scotland is not a respected partner within the UK. Given that Carwyn Jones now appears to support the idea of multiple vetoes, it will be interesting to see how Scottish Labour respond.

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Daniel Kenealy is a Lecturer in Public Policy at the University of Edinburgh Academy of Government.