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Negotiating with a Dis-United Kingdom. the EU's Options

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Negotiating with a Dis-United Kingdom. the EU's Options Introduction Stiftung Wissenschaft und Politik German Institute for International and Security Affairs Comments Negotiating with a Dis-United Kingdom WP The EU’s Options Concerning Scotland and Northern Ireland in the Brexit Talks Nicolai von Ondarza and Julia Becker S As if the process or withdrawal from the European Union were not already complex enough in itself, the Brexit vote has also reopened constitutional questions for the United Kingdom. Scotland’s devolved government is calling for a new independence referendum and seeking a special arrangement with the EU. Northern Ireland has drawn less attention but is politically at least as significant: Brexit endangers its open border with the Republic of Ireland and consequently the stability of the peace process. These factors not only enormously complicate London’s negotiations with the European Union. Brussels and Berlin also need a strategy for their dealings with Scotland and Northern Ireland. Especially in order to protect the interests of its member state Ire- land, the EU should demonstrate openness for flexible solutions. The British referendum on EU member- land, the governing Scottish National Party ship has exposed the regional divisions (SNP) now links the relationship with the within the “United Kingdom of Great EU to its calls for greater autonomy – por- Britain and Northern Ireland”: Although traying a hard Brexit against the will of the the “leave” camp attracted 51.9 percent of Scottish population as another manifesta- the British electorate as a whole, it only tion of English dominance. After her calls actually gained a majority in England and for a special arrangement with the EU were Wales. rebuffed by the UK government, the Scot- In Scotland 62 percent voted “categori- tish First Minister is now calling for a new cally and decisively to remain within the independence referendum before the UK European Union” (Scotland’s First Minister formally leaves the EU. Nicola Sturgeon). And in Northern Ireland A different set of difficulties exists in the remain vote reached 55.8 percent. Yet Northern Ireland, with Brexit coming at a with England and Wales together represent- juncture where clouds were already loom- ing almost 90 percent of the UK population, ing. Politically, the open border with the Scotland and Northern Ireland were unable Republic of Ireland is a crucial pillar of the to alter the outcome. Northern Ireland peace process. Economi- As such, the Brexit vote has stirred up cally too, it is vital for both North and two politically sensitive regions. In Scot- South. A hard Brexit of the kind announced Dr. Nicolai von Ondarza is Deputy Head of the EU / Europe Division at SWP. SWP Comments 7 Julia Becker was an intern with the EU / Europe Division and is currently completing an M. A. March 2017 in Comparative Politics and Policy Analysis at the universities of Edinburgh and Konstanz. 1 by Theresa May would place question marks the UK parliament retains the power to over this arrangement. overrule them. The Supreme Court ruled that the Sewel Convention is purely politi- cal in nature and cannot be enforced Regional Questions in the through the courts. Accordingly there is no Withdrawal Process requirement for the regional parliaments These regional tensions create additional to approve the initiation or conclusion of complications for both sides in the immi- the withdrawal process. In short: legally nent Brexit negotiations (see SWP Com- May’s government has a free hand and can ment 35/2016). From the European perspec- completely ignore the devolved govern- tive, the first question is what legal and ments and parliaments. political role the governments of Scotland Politically, the UK government at first and Northern Ireland (and also Wales) made the cohesion of the Kingdom one of should play in the process. its top political priorities. Immediately In legal terms a clear answer has already after her appointment as prime minister, emerged. The British population as a whole Theresa May visited Edinburgh, where she voted to leave, and only the British state as promised to consult closely with the Scot- a whole can set the withdrawal process in tish government – and its Welsh and North- motion “in accordance with its own consti- ern Irish counterparts – on the prepara- tutional requirements” (Article 50 TEU). The tions for withdrawal talks, and not to trig- United Kingdom has no written constitu- ger Article 50 until there was a “UK-wide tion, and the legal position is not absolutely approach”. In fact, the devolved govern- clear. A ruling by the UK Supreme Court in ments were neither consulted nor did they January 2017 clarified that an act of parlia- agree with the Brexit strategy Theresa May ment is required before triggering Article laid out in January 2017, under which the 50. Although the House of Lords initially United Kingdom will quit the single market proposed some amendments, in particular and the customs union. After Holyrood on the rights of EU citizens and the parlia- voted against triggering Article 50 under mentary procedure to decide on a final these circumstances, the UK government Brexit deal, the British government man- and parliament decided to ignore this posi- aged to get this “European Union (Notifica- tion. Thus far, the devolved governments – tion of Withdrawal) Bill” approved by both including the Welsh – have dismissed the houses of the UK parliament in March 2017 regular consultations in the Joint Minis- without amendments. terial Council as purely symbolic. The court case drew enormous public attention. The devolved governments of Scotland, Northern Ireland and Wales inter- Relevance for the European Union vened to clarify whether the approval of Looked at coldly, from the EU’s perspective their devolved legislatures was required. these regional matters are first and fore- The heart of the question here is that the most an internal affair of the UK state. Scotland Act and the Northern Ireland Act Legally, the British government is the EU’s both require the Scottish parliament (Holy- only negotiating partner, and politically rood) and the Northern Ireland Assembly London would regard direct talks between (Stormont) to implement EU directives that Brussels and the devolved governments as fall within their competences. At the point a provocation. Nevertheless, there are three when withdrawal actually occurs, there- reasons why developments in Scotland and fore, both pieces of legislation will need to Northern Ireland remain relevant for the be amended. Under the Sewel Convention, EU’s negotiating strategy: this normally requires the consent of the Firstly, the EU has a fundamental inter- respective devolved parliament, although est in protecting the interests of its member SWP Comments 7 March 2017 2 Ireland in the Brexit negotiations. The open fullest possible ties to the EU. Its positions border with Northern Ireland is of central and demands for the Brexit process are laid economic and political importance for out in detail in a white paper published in the Republic of Ireland. Moreover – driven December 2016, “Scotland’s Place in Europe”. by its peace narrative – the EU has also Edinburgh’s central demand is for the invested significant political capital and United Kingdom to remain in the single financial support in the Northern Ireland market, complete with its four freedoms. peace process. The United Kingdom – in- The single market is Scotland’s most impor- cluding Northern Ireland – is also the tant (non-UK) market, taking 43 percent of Republic’s most important trading partner. its international exports. Scotland’s agri- And under the Good Friday Agreement of culture and universities, the paper argues, 1998 the Republic of Ireland is also closely are especially reliant on freedom of move- involved in Northern Ireland’s institutional ment within the EU. Scotland also calls for architecture (see below, p. 6). More than support for European solidarity, and for par- 20 percent of Northern Ireland’s residents ticipation in joint counter-terrorism meas- possess Irish – and thus EU – citizenship; in ures, initiatives to curb climate change and theory any British citizen born in Northern exchange programmes such as Erasmus. Ireland is entitled to an Irish (and thus EU) With its declared objective of leaving passport. the single market and the customs union Secondly, regional tensions could con- London has clearly rejected all of Edin- strain London’s options in the Brexit talks. burgh’s requests. The British government has no interest in a break-up of the UK or a visible failure of the peace process in Northern Ireland. While A special arrangement with the EU Theresa May has to date ignored Scottish In the event of a “hard Brexit” involving calls for a role in the process, a frontal con- the loss of full access to the internal mar- frontation with Edinburgh would impose ket, the Scottish government calls for an an additional burden on her government arrangement permitting Scotland to remain during the Brexit talks. integrated in the single market and other Thirdly, a new independence referen- EU policies on its own. Nicola Sturgeon dum in Scotland would complicate the believes she has a democratic mandate Brexit process for the EU side too, as the for this demand, as 62 percent of Scottish EU-27 would then have to take a stance on voters voted to remain in the EU. (re)accession for Scotland. A second refer- Edinburgh proposes that Scotland endum on independence would also boost should remain part of the United Kingdom, separatist tendencies in other EU member but be granted the right to conclude a spe- states such as Spain. cial arrangement with the EU in order to In light of these matters, the EU side remain inside the single market and con- should not underestimate the role and tinue to participate in other EU policies interests of the two regions in the Brexit (such as research funding).
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