The UK’s departure from the EU is loaded with negative symbolism for Scotland.
In the first place democratically: a clear majority of the Scottish electorate has voted six times to remain in the EU since 2016.
Arguably, too, the majority vote to decline independence in the 2014 Scottish referendum owed something to the Cameron government’s guarantee to retain EU membership.
But Brexit is practically damaging for Scotland too, with the loss of EU-wide laws and standards from pharmaceuticals to labour protection.
And in human rights generally: the European Convention on Human Rights (1950), incorporated into EU law, is the only effective international treaty to embody the 1948 UN Universal Declaration wholesale and to combine it with the right of individual petition.
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On the surface there is little we in Scotland can do to reverse this situation.
Constitutionally the EU Withdrawal Bill applies to the UK as a whole and single entity, and the Conservative government in London has expressed its determination, since winning the UK election in December 2019, to enforce it in Scotland. Not least in rejecting the First Minister’s request under section 30 of the Scotland Act to hold a second independence referendum.
When Alex Salmond spoke of, in commending the 2014 vote to the Scottish public, was a once-in-ageneration opportunity. An opportunity is prospective, open-ended, impersonal; nothing to do with personal commitment.
This point needs emphasising because of Nicola Sturgeon’s assertion that ‘circumstances’ (i.e. Brexit) have changed radically for us in Scotland since 2014, so that IndyRef2 can legitimately be sought. That is true, but it was never necessary to make the claim. It is the Brexiteers in the bully-majority in England who have contradicted the Cameron-led Conservative government, which conceded IndyRef1 and the subsequent EU vote with an eye to winning both.
These are all good and legitimate reasons for us in Scotland to rebel, to salvage what can be saved from the wreck of the EU. And this is what the Scottish Government should do.
It should take steps to institute – to formalise as policy – all such EU laws and regulations as fall under its own reserved powers, and therefore to practise EU membership de facto within the domains of its legitimate purview.
The constitutional objection here appears to be, this would be illegal, because of the UK-wide application of the Withdrawal Bill, before which ‘reserved [Scottish] Powers’ supposedly fall away. But there are two answers to this objection.
One is the democratic mandate answer: ‘Scotland’ has not voted for Brexit. The other is a direct legal rebuttal.
If the UK government wishes to insist on its sovereign right to nullify a) the wishes of the Scottish people in the matter of EU membership, and b) the Scottish Government’s request to hold a referendum on independence in order, potentially, to fulfil those wishes, then it must, to be consistent, respect those other fundamentals of the UK’s constitutional framework, namely devolved powers.
Westminster cannot rightly deny to us, for example, the right to institute EU-standard health-care, because sovereignty over this was constitutionally ceded in 1999.
The same applies in law and education, in which the Scottish Government has never ceased to be sovereign. And since international human rights transcend all other or ‘national’ rights, then the list of our rights of secession from the UK, on grounds of preserving an EU-standard polity, can be extended indefinitely.
This is not a Catalan-style secession, because in Spain no such provision exists for flexibility in centre/periphery legal relations.
In the UK, however, the Conservative government cannot reserve to itself the right to deny IndyRef2, against a legitimate Scottish Government claim to exercise its own reserved powers, especially if the claim were made not only on the basis of recent electoral history, but in the cause of the wellbeing of the Scottish people.
The case has been made to me personally, as it has been many times throughout the UK, that important material sectors of public life will be detrimentally affected by the dropping of EU standards.
The same could be said of the loss of the EU generally: it is the only intergovernmental organisation in the world of which membership is conditional on democracy.
The EU should be preserved and defended. Reformed certainly, but certainly preserved, for the good of all humanity. And for the good of ourselves in Scotland. The Scottish Government has the right to withdraw Scotland from the UK, in exercise of its lawful powers under the Scotland Act, in the name of creating (or preserving) an EU-standard society.
As a democracy, we in Scotland must hold it to account in this enterprise. Making a better society is what governments and political parties promise, isn’t it?
Dr Peter Lomas is a former International Security and Human Rights Editor at BBC World Service Monitoring
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