Does Scotland have the right to establish its own foreign relations?

Just a few short years after John Major sent his Scottish Secretary, Ian Lang, to Brussels to open pseudo-embassy Scotland Europa, flaws in the plan were beginning to show. Major had intended that the office would give Westminster full control over managing Scotland’s relationship with Brussels, but the Scots had other ideas. Writing in 1995 – three years after the launch – veteran political journalist Murray Ritchie noted that Major wanted “subsidiarity [to] stop at member state level”, but that, with EU money flowing into Scotland, “so the regions of Scotland gravitate towards Brussels, setting up lobbying presences”.

“In turn come the lawyers, the Scottish media, businessmen and the voluntary sector,” he wrote. “Scottish ministers, some with a history of Euroscepticism, have never had the nerve to act on calls from senior Conservatives who would stamp on this trend and restore all authority to London. They know the price would be electoral suicide.”

The current UK Government, which is becoming increasingly annoyed with what it sees as the Scottish Government’s intrusion into UK foreign affairs, should perhaps take note. Scottish Secretary Alister Jack told two recent sessions of the House of Commons Scottish Affairs Committee that Holyrood politicians have repeatedly stepped out of line – former First Minister Nicola Sturgeon discussed the constitution with a US official in 2022, constitution secretary Angus Robertson discussed the Erasmus and Turing schemes during a visit to France, and former business minister Ivan McKee said during a trip to Poland that he felt Brexit had been a mistake – and Jack isn’t happy about it. Foreign Secretary James Cleverly isn’t either and he has taken action, telling UK diplomats to make sure they are always present when Scottish ministers have visits with foreign governments and banning MSPs from lobbying on Scotland’s behalf. 

Indeed, last week Humza Yousaf made his first trip to the Brussels as first minister, with the aim of fostering ties with the EU. But senior diplomats reportedly sat in on all his meetings and, on Yousaf’s plan to “prepare the ground” for rejoining the EU as part of his independence strategy, an EU source told The Times the bloc “deals only with the official governments of third countries”.

For Arthur Snell, a former diplomat who served as UK high commissioner to Trinidad and Tobago between 2011 and 2014 and whose book, How Britain Broke the World, traces the widespread impact of recent British foreign policy decisions, such attitudes makes no sense. Yes, UK foreign policy is reserved to Westminster, but that does not preclude the governments of the devolved nations from having diplomatic relations in their own right.

“It seems to me that what James Cleverly did was a signature example of the way that unionist politicians in Westminster – and they tend to be Tories, but not always – talk down to the Scottish political class, when in doing so all they can do is increase people’s yearning for independence,” he says. “If a Scottish politician were to pop up in an EU country, there would be all manner of things that that EU person would be interested to take their opinions on. Imagine the position the UK diplomat would be put in if the conversation was unfolding nicely and then Ukraine came up. That’s a reserved subject so what would they do – slap the Scottish politician on the leg to stop them talking?”

Scotland and the UK today are very different entities to the ones Ritchie was writing about in 1995, with the opening of the Scottish Parliament in 1999 solidifying Scottish ideas of nationhood at the same time as underlining the role Scotland plays as a sub-state within the UK. Indeed, while Scotland’s first first minister, Donald Dewar, was quick to open a “Scottish representative office” in Brussels to “complement the role of the Office of the United Kingdom Permanent Representative to the European Community and allow the Scottish Executive to operate more effectively in Europe”, the devolution settlement was very clear that foreign policy was for the UK Government and the UK Government alone to determine. 

Under the SNP the Scottish Government has greatly expanded its network of pseudo-embassies, with bases in Beijing, Berlin, Copenhagen, Dublin, Ottawa, Paris and Washington DC. They come under the remit of Robertson, who, as cabinet secretary for external affairs and culture as well as the constitution, has responsibility for the government’s global affairs network and Scottish diaspora. Jack has railed against the extent to which Robertson uses visits to these offices to build international connections, telling the Scottish Affairs Committee in May that Cleverly’s guidance on diplomatic meetings “didn’t go down very well with old Air Miles Angus for a very good reason – that is because he took offence at us calling him out visiting governments and talking to them about matters we know are reserved: the constitution and foreign affairs”.

Yet the value of Scotland forging its own international relations is clear. A recent report from professional services firm EY found Scotland was the most attractive part of the UK for foreign direct investment (FDI) after London, securing 13.6 per cent of the UK total while the number of Scottish FDI projects grew by 3.3 per cent against a decline of 6.6 per cent in the UK as a whole. For Juliet Kaarbo, professor of foreign policy at the University of Edinburgh, it is entirely appropriate for the Scottish Government to direct its own international interests to attract such investment even though it can have no direct influence on foreign policy per se.

“The basic point is that even though the Scottish constitutional context is that foreign policy is definitely reserved for Westminster, it’s not unusual for sub-state governments to have international relations,” she says. “They may not have their own foreign policy, but most regions that have some kind of governmental function have international relations because everything they are responsible for will be influenced by international relationships. 

“Scotland is different to some other places because it’s pretty clear in the Scotland Act that foreign policy is reserved but it’s complicated because foreign policy relates to other devolved areas. There’s no constitutional agreement that says who has the last word when those areas overlap. The presumption is that it’s Westminster but that’s kind of more political than constitutional. It depends on the politics and the particular Westminster government. For a lot of states it’s seen as complementary and for some areas it’s been seen that way here – if Scotland can attract business based on diaspora relationships that helps the UK generally. But when constitutional politics enters the picture it’s seen as a possible route to independence.”

Notably, when Labour First Minister Jack McConnell facilitated the 2004 launch of the Scotland Malawi Partnership, a charitable organisation that works closely with the Scottish Parliament and Scottish Government, it was not opposed by the Labour government at Westminster. Ditto when his government unveiled its Fresh Talent programme a year later, even though the initiative saw Scotland diverge from the UK on immigration policy to enable foreign graduates to settle in Scotland. Though immigration policy is reserved, it was accepted that population decline and skills shortages meant Scotland’s needs differed to those in the rest of the UK, though the programme was replaced by a UK-wide system in 2008, with that system eventually abolished by the coalition government in 2012.

John Edward, who worked for Scotland Europa in the late 1990s, was head of the European Parliament’s office in Scotland between 2003 and 2009 and is now head of operations at the Scottish Council on Global Affairs, says: “No one questioned the Scottish Government’s right to do Fresh Talent and no one questioned its modest international development policy.”

Regardless of the collaborative approach that may have been taken in the past, the administrations at Holyrood and Westminster have been on a collision course for some time now, with everything from whether Scotland should have the right to hold another independence referendum to whether it should be able to take control of something as seemingly innocuous as a bottle recycling scheme leading to angry showdown after angry showdown.

When it comes to the role Scotland could or should play in its own or the UK’s foreign relations, Brexit has complicated matters. On the one hand the UK’s exit from the European Union waters down Dewar’s assertion that the Scottish Government needed a Brussels office because “the Scottish Executive will have an obligation to implement EU legislation on devolved matters”. On the other, it strengthens the case for the Scottish Government having bases across the continent: though the UK voted to leave the EU, Scotland did not; having a means to strengthen Scottish diplomatic bonds – whether on economic or cultural grounds – makes sense at a time when the UK as a whole is retreating from Europe.

For Edward, that is the crux: while the UK Government knows that Scottish minsters have every right to forge relationships overseas, and while the Scottish Government knows it can play a full role in international relations while having no say in foreign policy, the current arguments are about two governments that are so ideologically opposed to each other they can’t be seen to be giving each other any ground.

“It’s an area where there will be party politics and what’s behind that is that we’ve obsessed about constitutional matters for the past decade,” he says. “We’ve had two referendums that have focused on constitutional issues and as a result we’ve assumed that international stuff is purely Yes or No, or Leave or Remain. It’s so much more than that. It’s about the economy and cultural activity – there’s  huge interest in Scottish music, in the Edinburgh Festival. In Brussels in 1999 we ran an initiative whose strapline was ‘seeing Scotland in a new light’ and it was about understanding what people came here for. That’s soft power, and famously soft power is quite hard to define. 

“If you had a typically English party in government at Westminster because they got the most votes, you wouldn’t expect the governments of Northern Ireland, Scotland or Wales to say ‘you can’t talk about English issues when you’re overseas’. This [the fight over Cleverly’s guidance] was pure politics coming from two parties who have been in power for a long time and who are fixed in their views. If someone asks you about the King or Brexit or independence or Plaid Cymru or Northern Ireland when you’re in a meeting with [foreign diplomats], what are you going to do, say ‘sorry I can’t talk about that’?”