The Supreme Court, Article 50 and Scottish Independence

Craig Lewis examines the impact on Scotland of the Supreme Court’s recent judgement

The Supreme Court ruling that Theresa May’s government must consult parliament before triggering Article 50 has had additional ramifications for the Brexit debate in the devolved nations to which the radical left needs to respond.  This short piece looks at developments in Scotland. It was written as a contribution to discussions that comrades in Left Unity Wales are having on how best to respond to the Supreme Court judgement and the Welsh Assembly’s Brexit white Paper.

In its judgement, the Supreme Court ruled that the “Sewel Convention” which governs the relationship between Westminster and the devolved administrations has no legal status.  Effectively this allows Westminster to introduce or amend legislation in Scotland, Wales and possibly Northern Ireland, even in those areas reserved to the devolved governments, without the consent of those bodies.  Arguably the judges have overturned the whole basis of devolution.  This has caused outrage particularly in Scotland where it was widely believed that the recent Scotland Act 2016 had enshrined the Sewell Convention in law.  Not so say the law lords.  The wording of the Scotland Act was designed to serve the political purpose of appearing to give concessions following the 2014 independence referendum.  It has no legal effect whatsoever.  In the words of one Scottish political commentator:

“(The Scottish Parliament’s) law-making powers have been revealed as tenuous and enfeebled, subject to review at the whim of the Brexit Government.” (Iain Macwhirter, The Herald, Jan 26, 2017)

Despite the rhetoric of “getting the best deal for all of the UK”, it is more than likely that May and the hard right Brexiteers will now ride rough shod over the interests of the devolved nations. The pledge to treat them as “equal partners” is dead in the water (if it was ever alive!).  Indeed an increasingly confident and authoritarian administration in Westminster has been given carte blanche to restructure the whole devolution settlement.  Forecasts that Scotland and Wales will gain extra powers in areas such as agriculture and fishing post Brexit now look tenuous to say the least.  In Scotland the European Convention on Human rights was enshrined in the original legislation establishing the Scottish Parliament.  There has been a widespread belief here that, whilst May could revoke the Human rights Act in England, she could not change human rights legislation in Scotland without Holyrood consent.  The Supreme Court ruling changes all that.  In the longer term as the far right Tory government establishes itself and pushes ahead with its project to turn the UK into the Singapore of Europe, it will need to crush spaces of resistance and opposition.  The very existence of devolved government may be increasingly questioned:

“I don’t think Theresa May runs a forgiving kind of government. And I would not be surprised if Westminster passed some Scottish legislation in the teeth of opposition from Holyrood, just to show who’s boss again”. (Michael Fry, The National , Jan 26, 2017)

All this could be dismissed as arcane legal speculation but it would be dangerous for those on the radical left in the devolved nations to ignore the ramifications and the political opportunities of the Supreme Court judgement.   Formally the Sewell Convention still exists and is likely to be used by the devolved governments to put political pressure on Westminster to recognise their specific interests in the Brexit talks.  The Scottish government has, for example, decided to table a “consent motion” and urge the Holyrood Parliament to reject May’s invoking of Article 50. The vote now has no legal significance of course, but it will have significant political implications.  It will highlight the “democratic deficit” given Scotland’s 62% Remain vote.  It will also directly challenge the increasingly prevalent notion south of the border that the referendum gives the Tories carte blanche to go for a hard Brexit despite the implications for jobs, communities and public services.  And it puts political pressure on May to engage seriously with the Scottish government’s proposals set out in the “Scotland’s Place in Europe” document which outlines Nicola Sturgeon’s twin track approach aimed at keeping Scotland within the EU or at least in the Single Market, whilst keeping the independence option on the table. (  http://www.gov.scot/Resource/0051/00512073.pdf).  Finally a clear rejection of article 50 will be very important when the negotiations start to fall apart and the real costs of Brexit become apparent over the next two years. Consequently the radical left should support the SNP strategy on this.  The problem is that the left in Scotland are as divided as they are in the rest of the UK over how to approach Brexit; with the more traditional Leninist groups arguing their strategy of a “people’s” or “workers” Brexit.  An approach that has led some to suggest that any future independence referendum should be accompanied by a new referendum on Scotland’s future in the EU. Hardly a realistic approach given the overwhelming 62% vote in favour or Remain across all sections of society (not one local authority area in Scotland vote to Leave).

Whether the political impact of the Supreme Court judgement and Holyrood’s opposition to invoking article 50 will help convince the Scottish electorate that independence is now the only option left to protect jobs, living standards, public services and the welfare state remains to be seen.  Nicola Sturgeon is a hugely popular politician and was seen as being one of the few politicians with any sort of plan in the immediate aftermath of the referendum.  Her early stance on reassuring EU migrants that they were welcome in Scotland contrasted markedly with May’s inhumane approach of seeing them as “bargaining chips”.  Nevertheless support for independence has remained stubbornly below the 50% mark since the 2014 referendum and has not shifted since the EU vote in July.  This is essentially what lies behind the SNP’s cautious “twin track” approach to Brexit.  Basically it is an approach that tries to marry a neoliberal justification of single market membership (stressing free trade, fiscal responsibility etc) with support for free movement and opposition to all forms of racism and xenophobia.  An approach which at least meant that the EU debate in Scotland was not mired in the racism and migrant scapegoating that marked aspects of the mainstream Leave campaign in England and Wales.

For socialists, the Scottish Government’s defence of EU membership and the Single Market is not unproblematic.  No one on the radical left could deny that the EU has been captured by a European political and corporate elite and that the Euro and the Single Market are both key mechanisms through which neoliberal economic and social policies have been imposed on member states.  There is real concern in the wider independence movement, particularly the radical wing,  that a second referendum campaign should not focus exclusively on Scotland staying in the EU or the business case for remaining in the single Market.  This was reflected in the recent Scottish Independence Convention where over 800 delegates heard calls for a positive vision of a fairer more equal and democratic Scotland to be at the heart of indyref2.  A vision that addressed the shortcomings of the previous campaign but at the same time contained concrete proposals that would prefigure a radical break from the politics of austerity, cuts and widening inequality.  A key presentation to the Convention by Craig Dalzeil of the radical think-tank “Common Weal” showed that simply making a business case for the EU was unlikely to win a second referendum despite the Scottish electorate’s overwhelming support for Remain.

https://www.commonspace.scot/articles/10141/new-report-demographics-independence

Nevertheless a second referendum, if it happens, is going to be very largely predicated on Scotland being taken out of the EU against its democratically expressed wishes.  The radical left cannot realistically ignore this.  Arguably it is perfectly possible to defend membership of the Single Market on the basis of jobs, living standards and the devastating impact leaving would have on working class communities in Scotland.  These may be arguments used by pro-capitalist remain supporters but they are true nevertheless.  Similarly protecting free movement and avoiding the attacks on workplace and human rights that would follow a hard Brexit are sound progressive reasons to support remaining in both the EU and Single Market.

Of course our support cannot be uncritical.  A fairer, more equal and more democratic society must remain central to any radical vision of independence.  Moreover we should firmly reject the notion that the EU is “hard-wired” for neoliberalism.  The dominant EU political elite can be challenged.  To do so, the radical left needs to build concrete international alliances with campaigns and movements in EU member states resisting the impact of neoliberalism both domestically and within the EU structures themselves. Both are terrains of struggle for socialists.  Left Unity’s links with the European Left will be a valuable asset in building such alliances.