Brexit by convention - the fallout from the Supreme Court ruling

“Constitutional crisis!” It is the cry that is never far from Scottish commentators’ lips as the nation reverberates from the latest political earthquake.

In the grand scheme of things, the Supreme Court ruling that London is not legally obliged to consult Scotland before it triggers Brexit wasn’t an earthquake on the scale of the independence referendum or Brexit – but it has the potential to turn a drama into a crisis.

British ministers are “forcing this issue to a crisis” by disregarding the will of the Scottish people, according to Scotland’s Brexit Minister Mike Russell.

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And so the slow drumbeat towards a second independence referendum increases in volume and tempo.

Nicola Sturgeon asks: “Is Scotland content for our future to be dictated by an increasingly right-wing Westminster Government with just one MP here – or is it better that we take our future into our own hands?”

The New Year has resurrected old arguments and started a countdown more feverish than Hogmanay.

Immediately after Brexit, Indyref2 was “highly likely”. Then Theresa May set the course for a hard Brexit and it became “more likely” – indeed, “all but inevitable”.

Now, Supreme Court judges have declared that the Sewel Convention – which states that Westminster will not “normally” legislate on devolved areas – has no legal force.

The ruling has made it clearer that a fresh decision about Scotland’s constitutional future is “a choice that Scotland must make”, according to Sturgeon.

Professor Michael Keating, Director of the Economic and Social Research Council’s Centre on Constitutional Change, called the Supreme Court decision “constitutional overkill”.

“They could have simply said this is not a ‘normal’ situation, but instead they said Sewel is not enforceable at all,” he said.

“That is highly problematic. It means that the clause in the Scotland Act 2016 putting the legislative consent motion (LCM) on a statutory footing is meaningless. It didn’t achieve anything whatsoever.”

Ever since Scotland rejected independence, nationalists have been on high alert looking for signs that ‘The Vow’ of more powers for Scotland has been broken.

Prof Keating said: “The Vow was very vague. It didn’t say much. It was published on the front page of a Scottish newspaper, and didn’t really commit them to anything very specific.

“But the Smith Commission was the more significant one, and they recommended that the Sewel Convention should be put in statutory form.

“There was some debate about this at the time, whether it meant anything and whether it was enforceable, and there was a lot of criticism about that word ‘normally’.

“So it’s not surprising that this has come up – it was a problem waiting to happen.”

He added: “What happens when a constitutional convention is violated is you get a constitutional crisis.

“The Supreme Court talks about the Sewel Convention as though it is all about harmony and agreement. They don’t accept that it might be a way of resolving conflict. What you get in these circumstances is a constitutional crisis, a standoff, and that is resolved politically.

“What the UK Government has on their side is the Supreme Court judgement – and the Scottish Government has on their side the threat of an independence referendum.”

However, Nicola Sturgeon does not appear to be in any great hurry, and has set up a number of political hurdles to clear before she presses the Indyref2 button.

Negotiations to keep Scotland in the UK and European single market will continue at the Joint Ministerial Committee. She will also try to press ahead with a Legislative Consent Motion at the Scottish Parliament, despite the Supreme Court ruling.

She said: “Although the court has concluded that the UK Government is not legally obliged to consult the devolved administrations, there remains a clear political obligation to do so. 
“Indeed, the court itself notes the importance of Sewel as a political convention.

“The Scottish Government will bring forward a Legislative Consent Motion and ensure that the Scottish Parliament has the opportunity to vote on whether or not it consents to the triggering of Article 50.”

This won’t be without its political difficulties. 

LCMs are normally drafted through close consultation between the two governments, but will Westminster really want to consult on a motion that is likely to set them up for a fall?

It is also far from clear whether an LCM on Brexit is within the Scottish Parliament’s competence – and Presiding Officer Ken Macintosh has refused to give an opinion on an LCM which is yet to be presented.

It begs the question: does the First Minister really want another referendum – at least in the short to medium term?

The polls are not shifting, and the most recent survey by The Herald put Scotland right back where it was in September 2014, at 55 per cent against independence.

However, if we’ve learned anything since 2014 it is this: don’t trust the polls.

It was a poll that predicted Scotland was headed for independence that prompted the Better Together leaders to make their ‘Vow’ of more powers for Scotland – including the one that supposedly enshrined the Sewel Convention in law and prompted the latest “constitutional crisis”.

If the polls were right, the SNP would have a majority in the Scottish Parliament, Britain would still be comfily cosying up to Brussels and Hillary Clinton would be the first female president of the United States.

Perhaps this is why Theresa May is so reluctant to dismiss Nicola Sturgeon’s “compromise”, despite her obvious distaste for the suggestion.

On 17 January, she declared she would not entertain any deal that leaves Britain “half-in, half-out” of the EU.

But just two days later, May said she would “look seriously” at the Scottish Government’s proposal.

The SNP compromise remains on life support but, according to some analysts, it is politically brain dead.

Prof Keating said: “There is no sign whatsoever that the UK Government is going to take the Scottish Government’s proposals seriously.
“They have to say they are because if they reject it out of hand they will be playing right into the Scottish Government’s hands.”

The stalemate could leave Sturgeon with no option but to call another referendum, even if the country is not ready.

Prof Keating said: “The polls are exactly where they were in 2014, at 55 per cent for No and 45 per cent for Yes. Some people have changed their minds since Brexit but they’ve balanced each other out, as Yes voters became No voters and vice-versa.

“The experience of most referenda is that things can change radically in the course of the campaign, but what is clear is Brexit itself is not enough to give a boost to independence and that they need something else.

“It would have to be an argument that we have been let down again by London, because we went in good faith with a proposal which was thrown out.

“That’s why May is not rejecting this out of hand – it would be playing into Sturgeon’s hands and she only has five points to go to achieve independence. In the 2014 campaign support for independence increased by 15 points.”

So the latest Supreme Court stramash has created the perfect foil for the nationalists to cry foul.

Nicola McEwen, Professor of Territorial Politics at Edinburgh University, perceives “a willingness to listen” on the part of the UK Government, but not necessarily a willingness to make concessions.

“I find it very difficult to see how a differentiated solution for Scotland of the kind that the Scottish Government has proposed would be compatible with the Brexit plans and priorities that the Prime Minister has set out,” she said.

But said the ongoing “compromise” negotiations has bought some time for both governments.

“I don’t think the Scottish Government wants to rush ahead with a second referendum, so I think they will be glad to have bought some time through that process,” she said.

“Everything that Nicola Sturgeon has said would make it very difficult for her not to proceed with a referendum if the UK Government didn’t come up with some kind of compromise position for Scotland.

“The concern about having a second referendum is that the threat of independence has for a long time – decades – been part of the leverage that Scotland has over the Union.

“The worry for the Scottish Government is if you hold a second referendum and lose it, you lose the leverage for Scotland within the United Kingdom.

“But if the situation is such that there doesn’t appear to be much leverage now anyway, that changes the calculation and potentially leads the Scottish Government to decide it has nothing to lose.”