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Analysis: Constitutional questions

Video in which Anthony Salamone interviews Prof Neil Walker (The University of Edinburgh) on the constitutional implications of the EU referendum.
I’m Neil Walker. I’m the Regius Professor of Public Law and the Law of Nature and Nations at the University of Edinburgh, in the Law School. So, Neil, how significant is this referendum result in the context of the UK’s political history? Well, maybe we can’t answer that question for a few years. But, this morning, it seems massively significant - just as it did when we joined the EU in 1973. That seemed like a massively significant step. I think this seems like an even more significant step because the European Union has become much more - much greater, much larger, a much more penetrating organisation in the years in between.
What we’ve done today is, we’ve made a decision to leave something which is not quite a nation state, but something which is far more than an international organisation. So, this really is a massive step.
What kind of impact could the result of the referendum have on the UK’s constitutional settlement? It will have a tremendous impact upon the UK’s constitutional settlement.
As you know, the UK doesn’t have a written constitution. So, it will not necessarily have many formal consequences. But what it does mean is that the UK, at the level of formal parliamentary sovereignty, does regain a degree of control, which it had lost - of which it had delegated over a number of years. Clearly, however, the question remains an open one, because no one, at any stage, on the Brexit side suggested that we would entirely sever relationships with the European Union. So, there are many, many questions to be asked which remain unanswered about the nature of our ongoing relationship with the European Union.
And it’s not until we start the Article 50 negotiations for exit that we begin to get a clear picture of what that might imply. So, it’s too simplistic to say that it’s black and white - that, you know, one day, we’re part of this larger polity, and the next day, we’re not. There’s all sorts of in-between options that still have to be explored. But, certainly, this does look like the regaining of a degree of at least formal autonomy. But, remember, in today’s world, you know, it is only formal autonomy. Substantively, the UK will remain an international partner of all these European countries. It will remain part of the United Nations, part of NATO, part of every large international organisation.
In many, many ways, it will still be densely interconnected with Europe, even though it will not be a formal member of the European Union. And we know, although the UK has voted to leave the European Union, Scotland has voted by majority to stay. What do you see as being Scotland’s constitutional future? That’s the big question. I think everyone in Scotland will be asking that today. And, indeed, a lot of people beyond Scotland. Now, as you know, the Scottish National Party, who have a mandate to run the devolved parliament in Scotland, have been considering the circumstances under which they might ask for, or seek, a second referendum.
And one of these circumstances was that Scotland would vote to remain with the EU, but the rest of the UK would not. Of course, that circumstance today has come to pass. And it’s come to pass in something which is more than a marginal way - 62% of the Scottish voters voted to stay, which is much larger than - it is larger than any other area in the UK. London came close - 60%, Northern Ireland - 56%. But it is a striking statement of difference. And, I think, three questions now arise.
One is: will the SNP want to have another referendum?
Secondly, if we do want to have another referendum: will they be granted their wish? Thirdly, if they are granted their wish, will they be successful? Now, if I can say something about each of these three elements. It’s not clear that the Scottish National Party today want another referendum - for two reasons. One is, the polls don’t show clearly that they would win. Secondly, once you start thinking about the detail of Scotland remaining in or rejoining the European Union, things become difficult.
It’s hard to imagine Scotland rejoining the European Union without having to make a commitment to taking the euro as a currency, which is, of course, against current policy - although that could change very quickly, especially if the pound nosedives. But, at the moment, it doesn’t look like a straightforward scenario at all, from the point of view of the SNP. Having said that, I think there will be a great groundswell of opinion in Scotland over the next few days in favour of that position, which might renew the confidence of the SNP that they could win a referendum.
Certainly, many people who voted ‘No’ to Scottish independence on the condition that the UK would remain within the EU will be thinking over their position very, very hard today. So, I think it may well come to that. In which case, if the SNP do seek a referendum, then - I think we’re developing, or we have developed, a constitutional convention in this country now where, if one part of the country palpably wants to reconsider its membership of the state, then - it has become a matter of constitutional convention that their wish to test opinion would be granted. In the Northern Ireland case, it’s actually set out the in Northern Ireland Act.
In the Scottish case, we simply have the precedent of the 2014 referendum.
Some people will say: it should only be once in a generation - it’s too soon to go back again. But, these are extraordinary circumstances. And, if it came to that, I think there’s a very, very good chance that the Scottish people would vote for independence. Having said that, again, it will depend upon what’s also happening in the background, in terms of what kind of dialogue there is between a putatively independent Scotland and the EU, at the same time as this Article 50 exit process is unfolding with the UK. It would be very, very complicated. The messages to the electorate will not be very, very clear. So, there’s all sorts of difficulties there -
but there’s certainly one strong scenario which is imaginable: that is could end up with, as JK Rowling said this morning, with the break-up of two Unions. Not just Britain’s membership of the European Union, but the United Kingdom itself breaking up. What does the result mean for the devolution settlement to Scotland, and to Wales, and to Northern Ireland? Well, I think - to some extent, I’ve answered the question vis-à-vis Scotland. I think it puts - it certainly reinforces the authority of the Scottish Government and perhaps puts it in a position, subject to the conditions which I just said, to ask for a second referendum. I think, in Northern Ireland, it’s more complicated.
There, you have less of a majority - 56 to 44% versus 62 to 38% - so it’s closer. It’s probably more divisive - it’s more clearly segmented across the different communities. I think the Unionist, Protestant community was probably - I don’t have the evidence for this apart from the informal poll evidence - but it seems that, certainly, if they followed the course of their leader, they would be for ‘Leave’ - although many were also for ‘Remain’. There’s also, of course, the Irish independence angle, there.
I noticed the statement from Sinn Féin this morning, saying that this result made it - certainly, made the case for a new referendum on the North’s membership of an independent Ireland - made the case more pressing for that. And, I think that’s true, because, I think, this may shape people’s opinion about wanting to be members of the UK. It also does raise the possibility of a harder border between the South and the North, because the Six Counties will now be the western border of the European Union, and not just a geographical mark in a small country. So, I do think there are issues to resolve there. But, if anything, that situation is even more unclear than the Scottish situation.
Wales, I think, is very straightforward. Wales voted for Brexit, 53 - 47, so Welsh opinion is more or less identical with opinion in England and opinion across the UK as a whole. So - and, as you know, their devolved settlement at the moment is a progressive one, but it hasn’t progressed as far as either the Scottish or the Northern Ireland ones. So, I think it would be ‘as you were’, to the extent that is anything is ‘as you were’ in this unsettled constitutional climate. I think, in the Welsh situation, not much will change. We know the result was very close, with many people on both sides of the vote.
What kind of process of national reconciliation should be taking place at this point? National reconciliation… The problem is, it’s always the winners who want national reconciliation, more than the losers. I think it’s difficult. I think one of the problems here is that it’s not - it’s a very complicated vote. At one level, there is, of course, a set of national distinctions which we already talked about. I think the idea of a national reconciliation between alienated Scots, semi-alienated Northern Irish and the rest of the UK - so a national reconciliation in terms of the diverse nationalities of the UK looks, constitutionally, very, very difficult. But, of course, there’s other reconciliations which we have to look at, as well.
Within England, I think it will be difficult, as well - the fact that London was so clearly for ‘Remain’, and the North and even the Midlands were so clearly against that - there’s already a big North-South cultural divide within England - which, to some extent, is also a class divide. I mean, I think, what we have to recognise is that the working class, the traditional Labour supporters in the North of England, have in very, very large numbers voted for Brexit. So, there’s that division. So, that’s another geographical division. There’s a class division there, as well. And, I think there’s also a division in terms of people’s expectations - their sense of their place in the world.
I think there is - people used to talk about banal nationalism - the sense that people were nationalist in a kind of careless, unthinking, everyday way. I think there’s also a kind of banal - I don’t like the world banal - but let’s say, a very everyday cosmopolitanism amongst many people, as well - amongst many people in the younger generation, but also older people, as well. People who are used to foreign holidays, people who have foreign friends, people who have foreign partners, who have spent time abroad, who feel European - not necessarily in some deep sense, but certainly feel comfortable in a European place. I think that is true in Scotland. I think it’s certainly true in London.
I’m sure is true over many, many parts of the UK. But, against that, there’s also - there’s a kind of reactionary nationalism. I don’t mean that in a pejorative sense. Obviously, there may be elements in that which could be nativist, or racist, or whatever. But, I think it’s just an opposite reaction to globalising forces. For some people, the reaction to that is to build a protective barrier around your people, to reassert autonomy, to reassert a sense of national identity. So, I think there is now a division between a new type of nationalism and a new type of cosmopolitanism, which to some extent is related to these geographical and these other divisions.
But, it’s not as simple, or as straightforward, as that. So, in all of that context, I think - against that complicated context - it’s hard to imagine where people would start in terms of national reconciliation. We will have reconciliation within the Conservative Party, because the Conservative Party are the great survivors. And, within a month, the people who were sworn enemies will be sworn friends again, somehow. And, somehow, the Conservative Party will find its way through that and it will, I think - because, in some ways, oddly, this might strengthen the Conservative Party, despite the personal defeat for David Cameron, because it will certainly see off the threat from UKIP, from the right.
It will allow the Conservative Party to consolidate its nationalistic base. The Labour Party, I think, also has problems and difficulties, there - perhaps it has greater problems, because there is a very large cosmopolitan element within the Labour Party, but not one which is necessarily represented by the leadership, which, I have to say, was fairly lukewarm towards ‘Remain’. So, there are many, many reconciliations which have to take place. How successfully this will be done, who knows?
Anthony Salamone and Neil Walker, Regius Professor of Public Law and the Law of Nature and Nations at the University of Edinburgh, discuss the constitutional implications of the EU referendum.
(Videographer: Kara Johnston)
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Towards Brexit? The UK's EU Referendum

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