Since last year, the Scottish government has been very quiet about the timing of a second independence referendum, and has received flak from impatient ‘yes’ supporters wanting the starting gun to be fired.
In my previous article, I argued that holding an independence referendum is urgent, and it needs to be done before Brexit in March 2019. I would like to be more precise and argue that it needs to occur no later than September 2018, for Scotland to avoid a post-Brexit dystopia, because Scotland will have no chance of having another referendum after.
Nicola Sturgeon has consistently stated that once the nature of the Brexit deal were known, there would be a decision taken on the timing of a referendum. Events of this week make clear what Brexit will look like; both in terms of the possibility of a good Brexit deal for the UK, as well the status of Scotland in a post-Brexit UK.
While the full implications of the Windrush scandal have yet to play out, thus far it not only shows just how rotten, inhumane, xenophobic and cruel the May government is, but also fatally undermines any trust the EU can have in the UK in a future relationship. Think about it. UK citizens who have lived here for decades are being asked for decades of documents that don’t exist, documents proving their status were deliberately destroyed, they are declared to be illegally living in the UK, fired from their jobs, evicted from their homes, denied health care, bank accounts frozen while spending thousands on legal fees, and deported to a country they barely or never knew. In some cases, we’re talking elderly hauled from their homes, sent to detention centres, and deported on charter flights.
And it’s not just citizens from the Caribbean. In Scotland we see the case of the Brain family and Olya Merry fighting extradition. We have barely begun to grasp the scope and scale of the ‘hostile environment’ policy put in place by Theresa May, but it is already more than sufficient to obliterate any trust the EU can have in the UK to abide by any agreements, especially regarding the status of its citizens.
Even in the absence of Windrush, the EU timeline for withdrawal also dictates that constitutional future for Scotland be decided by Scots in September, because after constitutional decisions will be permanently made for Scots. Under the current timeline, the withdrawal agreement needs to be completed by October, as well as a declaration on the future relationship. There is to be ratification of the agreement by the 27 member states, the EU Parliament, and the UK Parliament (Scottish Parliament has no role) before formal withdrawal in March 2019. During the proposed transition period which is to last until December 2020, the UK will be required to abide by all EU law, and be subject to rulings by the European Court of Justice. While the UK will be allowed to negotiate trade deals with third countries during this period, none will be allowed take effect until 2021.
However, the proposed timeline is looking increasingly untenable, because a lack of trust in the UK increases the likelihood of a no-deal hard Brexit. Trust is essential for any agreement, and the UK has zero. Would you trust a government who forcibly deports the elderly?
Even if the UK were trusted and a decent deal could be reached by October, if Scotland waits beyond September to decide, then Scotland will be locked into the withdrawal agreement, and unable to avoid leaving the EU, Single Market, and Customs Union. Deciding in September is also important because it will inform the EU in withdrawal negotiations, so that they know what exact entity is withdrawing. We already know that Northern Ireland will retain ‘regulatory alignment’ with the Republic to avoid any hard border, essentially remaining in the Single Market and Customs Union. There is no question that if Scotland were to vote yes in September, the EU would allow it to remain in the Single Market and Customs Union until Scots decide if it wants to become a member state, or perhaps a member of EFTA. It is inconceivable that the EU would force Scotland to leave the Single Market and Customs Union against their will.
Given that the possibility of a good deal or even any deal is very low, we also learned this week that Scotland’s post-Brexit constitutional is grim indeed.
This last week, the UK government took the Scottish and Welsh continuity bills to the Supreme Court, and then Welsh Labour sold out and renounced their bill and allowing their powers to be sequestered by Westminster for 7 years.
To summarize as the constitutional issues as briefly as possible, the UK EU withdrawal bill currently winding its way through the Parliament allows the Government to rewrite the devolution settlements. There are 111 EU powers that are shared with the Scottish Parliament that should be directly transferred to it post Brexit. There had been negotiations with the UK government, in which all but 26 of the powers would be transferred, but there has been no agreement. Therefore, Westminster is free to take all the powers, even abolish the Scottish Parliament, unless Scotland votes to dissolve the Union very quickly.
To bolster the legitimacy of calling a referendum, the Scottish Government must show that it has exhausted every option to safeguard Scotland’s interests before Brexit. When the Supreme Court likely rules that Westminster sovereignty wins every time, this threshold will have been reached, and it will be time for Scots to categorically assert their sovereignty.