Brexit and the Scottish Question
19 Pages Posted: 16 Jan 2019
Date Written: January 16, 2019
This paper is an earlier draft of a chapter in Federico Fabbrini (ed), The Law & Politics of Brexit, (Oxford University Press, 2017).
It considers the position of Scotland after the EU Referendum vote in June 2016, in which 51.9% of the UK vote to leave but 62% of Scots voted to remain in the EU. Efforts by the Scottish government after the Brexit referendum to obtain a special deal to remain within the EU Single Market received only scant attention from the UK government. While the Scottish government had pointed at the Greenland–Denmark model, the letter of notification of Article 50 TEU by the UK government frustrated Scottish hopes for a bespoke solution specifically catering for Scottish interests. Moreover, new tensions are likely to emerge between Holyrood and Westminster in the implementation of the 2018 EU Withdrawal Act. Although pursuant to the Sewel Convention, Scotland should normally be consulted on any matter relating to its devolved powers, the UK government does not seem sensitive to the issue—not least because the UKSC in Miller classified constitutional conventions as non-enforceable legal norms. Given the unsuccessful exhaustion of all these alternative roads to protect Scotland’s interests, the prospect of a new independence referendum gains credibility.
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