IN THE search for an international precedent that’ll give Scotland a better sort of Brexit, there’s been much talk of doing a “reverse Greenland”. Generally overlooked is the Caribbean island of Saint-Martin/Sint Maarten, which I visited a couple of years ago. It has two names because it’s jointly administered by the French and Dutch.
Here’s the intriguing part: while the northern portion of the island is considered part of the EU as an overseas territory of France, its citizens (both French and EU) using the Euro, the southern 40 per cent, a “constituent nation” of the Dutch kingdom, is not, although its people, as Dutch citizens, do possess EU citizenship.
As for the demarcation between north and south, there’s an open border across which pedestrians and motorists cross without impediment. Of course, relations between the Netherlands and France are friendly, which doubtless makes this easier.
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But while all this is very interesting for constitutional anoraks, neither it nor Greenland are useful precedents for what the Scottish Government seeks in relation to the UK’s Brexit negotiations. Although we’re all island nations, Greenland and Saint-Martin/Sint Maarten are “territories” of EU member states, not integral parts of an outgoing country, as Scotland is.
However, the point stands that pursuing a “special status” for Scotland within the EU is not, as some maintain, a fruitless task, just a very difficult one, especially in the absence of evidence that the other 27 member states, who would have to grant their consent, are terribly engaged beyond diplomatic platitudes.
Crucial is the concept of sovereignty: EU overseas territories have a specific constitutional status that makes it easier to treat them differently while Scotland, although increasingly devolved, does not. Sovereignty, as the UK Government made clear in last week’s Supreme Court case, lies at Westminster.
Thus efforts in the most recent Scotland Act to make the Scottish Parliament “permanent” were always more symbolic than real, for in the absence of a written constitution or formal division of sovereignty such an assertion doesn’t stand up in court.
Sovereign states possess a “legal personality” but the devolved nations of the UK do not, although reports suggest the First Minister’s panel of European advisers is thinking about trying to change that.
It’s creative thinking like that which contrasts markedly with the sniffy political response to Scottish Labour leader Kezia Dugdale’s call for a “more federal” UK. Although her IPPR lecture was short on detail – it’s surely incumbent upon all federalists to spell out exactly what they mean – implicit in any federal recasting of the UK would be a formal division of sovereignty between its historic nations. This would both formalise an already quasi-federal status quo and rejuvenate Unionism, federalism being the only long-term chance of holding the UK together.
It would also require a codified constitution enforced by a constitutional court, as in the United States or Canada. Thus equipped with that “legal personality”, Scotland would be in a much stronger position to argue for special status within not only the UK but also the EU. Of course this is hypothetical: the UK is not already a federal country, but if I were a Nationalist I would also view such proposals much more constructively. The SNP claims its aim is pursuing the best interests of Scotland, so why such a grudging response to something that would arguably aid that?
The same is true of the Scottish Government’s attitude to the additional powers that may flow to Holyrood as a consequence of Brexit. When Leavers rather disingenuously made this part of their case during the EU referendum, the SNP poured scorn over the idea, while since June 23 Nationalists have often behaved as if Brexit will deprive the Scottish Parliament of responsibilities rather than add to them.
UK Government ministers have also been inconsistent. In October, Scottish Secretary David Mundell said he couldn’t envisage any change regarding control of agriculture and fisheries (unlike Ms Dugdale, who wants them fully devolved) as a consequence of Brexit, then subsequently spoke of “significant new powers” coming to Edinburgh from Brussels. But rather than welcoming that prospect the SNP is, as usual, adopting a grievance narrative.
At least they’re consistent, for historically the SNP usually ends up supporting a constitutional settlement they’ve initially disdained as a sell out or something unlikely to happen.
That was true of the original devolution settlement in 1998 as well as every subsequent transfer of additional power. After the event, however, the party poses as guardian of the status quo despite having done as little as possible to help bring it about.
That pattern may continue. A few weeks ago the former Scottish Government minister Alex Neil caused ripples by urging the First Minister to put the idea of another independence referendum on hold and instead use Brexit to gain more powers, winning what he called “neo-independence” in the process and thus the “ideal platform” for achieving full sovereignty in the early 2020s.
Unlike the generally churlish response from his former colleagues, Mr Neil argued that Nicola Sturgeon should press for all EU powers that relate to devolved policy areas being automatically transferred to Holyrood, including controls over farming, fishing, employment law, consumer protection, social policy and the environment. Accompanying that transfer, he reasoned, would be around £800 million of funding as well as control of VAT.
Combine that with proposals for Scotland to have its own legal personality and thus the ability to remain part of the European Arrest Warrant, Erasmus and perhaps even the European Economic Area, and that would constitute a constructive set of proposals that might carry some weight. It seems we’ll find out a week today precisely what the Scottish Government will be arguing for.
But the trouble is that it’s already stymied by some of its rhetoric and unrealistically heightened expectations since the EU referendum, from the First Minister’s use of the phrase “highly likely” to the quixotic notion that Scotland can remain part of the Single Market even as the rest of the UK leaves.
As Tom Gordon put it in these pages at the weekend, Ms Sturgeon’s dilemma – and one largely of her own making – is that a second referendum is “becoming harder to avoid just as it is becoming harder to win”.
Changing tack at this stage would obviously come with a political cost, not least from the impatient wing of the SNP, but the messy dynamic of Brexit might end up leaving the Scottish Government with little choice.