Scotland's right to choose: putting Scotland's future in Scotland's hands

The material change of circumstances

There are two aspects of events since 2014 that amount to the material change in circumstances that justifies the people of Scotland again considering their place in the UK-

• Scotland is set to leave the EU against the wishes of the people of Scotland. Leaving the EU represents a fundamental change in the constitutional arrangements of the country, which will be particularly damaging to Scottish interests and which will take place without the support of the people of Scotland.
• The approach of the UK Government to the process of leaving the EU has demonstrated that the views and interests of Scotland can and will be set aside, despite claims that the UK is a partnership of equals.

The people of Scotland voted 'No' to independence in 2014 following a campaign in which commitments were made that such a vote would secure Scotland's place in Europe, and that the nations of the United Kingdom would, following the referendum, operate as a partnership of equals. But the United Kingdom, as a member of the EU, that Scotland voted to stay part of in 2014 no longer exists; and promises that were made about Scotland's place in it have not been lived up to.

No accommodation of Scotland's overwhelming vote to remain in the EU has been attempted by the UK Government. Instead, the UK Government has approached EU exit without regard to either the views of the devolved institutions or to the variation in the referendum results across the UK. Leaving the EU is a fundamental change to what the United Kingdom is and how it is governed. It is a change that will have a particular and profound impact on Scotland.

The EU's values are widely shared and respected in Scotland: respect for human rights and the rule of law, democracy, equality and solidarity. The EU's objectives, secured by common policies and by the European Single Market and Customs Union, are deliberated on and delivered by independent states co-operating for the common good within a rules-based framework of institutions and governance.

There is clear evidence and broad consensus that, in the medium- to long-term, any form of EU exit will have an enduring negative impact on UK and Scottish competitiveness and economic performance.^[37] Moreover, the Scottish Government's analysis suggests that Scotland's rural areas will be amongst the most exposed to a no-deal shock.^[38] Together, this suggests that not only will leaving the EU damage the UK and Scottish economies, but doing so is also likely to increase inequality across and between the areas of the UK.

The demographic impact of leaving the EU also has a particular and serious effect on Scotland. Any reduction in EU migration will have an acute effect on Scotland's population growth and demographic composition. A loss of EU workers in sectors such as healthcare or childcare will adversely affect areas already struggling to fill such jobs (such as deprived regions, and remote or rural communities). Scotland's working population could start to fall, hitting tax revenues as well as staffing levels in the NHS, social care and other public services.

In December 2016, the Scottish Government set out its position on what the votes in the EU referendum should mean for Scotland and how Scotland might be protected from the worst effects of EU exit.^[39] Scotland's Place in Europe made proposals for giving effect to the result of the referendum falling short of its preference of independence in the EU. The Scottish Government proposed the UK remaining in the European Single Market and Customs Union, or the option of a differentiated deal for Scotland to reflect its vote in the referendum. In her foreword, the First Minister said-

the way in which the Westminster Government responds to proposals put forward by the devolved administrations will tell us much about whether or not the UK is indeed a partnership of equals.

…

If the real and substantial risks that Brexit poses to Scotland's interests cannot be mitigated within the UK, the option of choosing a better future through independence should be open to the Scottish people.

The UK Government did not formally respond to the Scottish Government's proposals. Instead, in January 2017, and without any consultation with the devolved administrations, the then Prime Minister set out her ambition for a "hard Brexit". The UK Government dismissed the option of the UK remaining in the European Single Market and Customs Union, and dismissed the possibility of a differentiated deal for Scotland. The Article 50 letter, beginning the formal process of EU withdrawal, was then sent by the Prime Minister in March 2017 without having been shared with the devolved administrations and without any advance consultation on either content or timing.

This lack of consultation took place only a few months after commitments were given by the UK Government in October 2016 to "full engagement" with the devolved administrations over EU exit and to ensuring that "the interests of all parts of the United Kingdom are protected and advanced". A new Joint Ministerial Committee on EU Negotiations (the JMC EN) was set up with terms of reference which gave it the role of seeking "to agree a UK approach to, and objectives for, Article 50 negotiations".^[40]

The JMC EN was never used to discuss or agree an approach to EU exit which took account of the interests of the different nations of the UK. Instead, the UK Government pursued a form of withdrawal which did not have the support of the Scottish Government, Scottish Parliament or the people who live in Scotland. The JMC EN did not even meet between 9 February and 16 October 2017, a key period for the negotiations of the initial withdrawal agreement, during which the UK Government published several documents setting out its approach to EU negotiations.^[41]

Promises of a negotiating position that took account of the interests of the nations of the UK were unfulfilled.

Throughout the negotiation of the Withdrawal Agreement and Political Declaration, at all key moments, the Scottish Government were consistently informed of the substance of the UK Government's position only at the time of publication.^[42] Beyond the lack of sharing of information to enable the JMC EN to exercise its functions effectively, at no stage were the devolved administrations involved as equal partners in shaping either the withdrawal agreement or the framework for the future relationship.

In July 2018, the UK Government published a White Paper on the Future Relationship with the European Union, having shared only four short sections of that paper for comment in advance and providing an embargoed copy at 1am ahead of publication the same morning. Neither the JMC EN nor bilateral engagement with the devolved administrations were involved in developing and agreeing that paper or the approach to the future relationship with the EU it proposed.

Under the current UK Government, meaningful engagement with the Scottish Government over prospective EU exit has deteriorated even further.

The Scottish Parliament has consistently voted against the UK Government's proposals for EU withdrawal.^[43] In September 2016, it voted on a cross-party basis in favour of Scotland remaining in the European Single Market, and for the Scottish Government to participate fully in the UK-EU withdrawal negotiations.^[44] In line with the vote of the Scottish people, the Scottish Parliament has voted repeatedly against both a no-deal exit from the EU and against the withdrawal agreements concluded by the UK Government.^[45]

Even devolution, itself overwhelmingly endorsed in a referendum in 1997, has been compromised by the UK Government's approach to EU exit. The European Union (Withdrawal) Bill, as introduced, sought to prevent powers over devolved matters returning to the devolved legislatures in the event of EU exit.^[46] When the Scottish Parliament withheld its consent to that Bill its decision was overruled.^[47] And when the Scottish Parliament sought to prepare itself for the devolved consequences of EU withdrawal, the UK Government changed the law to prevent it from doing so,^[48] undermining a fundamental principle of the devolution settlement. The UK Supreme Court held that the Scottish Parliament did, contrary to the arguments of the UK Government, have the competence to prepare devolved law for the effects of EU exit.^[49]

The Scottish Government has therefore concluded that there has been a material change in circumstances since 2014. This material change arises from both the prospect of leaving the EU without popular support in Scotland, and from what events since 2016 have demonstrated about Scotland's position in the UK and the ability of devolved institutions within the UK to protect Scotland's interests. In summary-

• Scotland voted by a significant margin to remain in the EU but is now faced with the prospect of leaving.
• Scotland's vote to remain has not been recognised in any aspect of the UK Government's approach to EU exit or its negotiation of withdrawal agreements.
• Commitments to involve the devolved administrations in setting UK negotiating objectives have been ignored. The Scottish Government's proposals for compromise were dismissed.
• Leaving the EU will have a particular and damaging effect on Scotland and Scotland's interests.
• All-party and cross-party votes of the Scottish Parliament have been ignored, and the Scottish Parliament's powers reduced without its consent.

The people living in Scotland should therefore be asked to reconsider the future of their country, in line with the manifesto commitments in the 2016 Scottish elections and the 2017 and, most recently, 2019 Westminster elections. These votes provide a clear mandate to the current Scottish Government.

Scotland's democratic deficit and the EU referendum

The EU referendum was held in June 2016 by a Conservative Government, which at that time had just one MP in Scotland. The decision to hold the referendum was therefore taken against the wishes of the clear majority of people in Scotland. While having particularly important consequences, the Brexit process is just one example of what has been called "the democratic deficit": the situation in which Scotland is governed from Westminster by governments that have failed to win most seats in Scotland and are often in office with only a small proportion of the vote in Scotland. For 40 of the 74 years since 1945, more than half of the post-war period, Scotland has been ruled by governments elected by fewer than half of Scottish constituencies.

The main advantage of independence is that Scotland's choices will determine Scotland's future. The experience of EU exit demonstrates this. The votes of the people of Scotland and of its democratic representatives in both Parliaments have had no effect on Scotland's place in Europe, or on the UK's approach to EU negotiations.

2015: 53 of Scotland’s 59 MPs vote against holding the EU referendum.

2016: the people of Scotland vote by 62% to 38% to stay in the EU.

2016: Only one of Scotland’s 59 MPs votes to trigger notification of EU exit under Article 50.

2017: 69 of Scotland’s 129 MSPs vote to mandate the Scottish Government to agree a referendum on independence with the UK Government.

2017: in the General Election, 35 of Scotland’s 59 MPs are elected on a manifesto commitment that “when the final terms of the deal are known, it is right that Scotland should have a real choice about our future.”

2018: 46 of Scotland’s 59 MPs voted against the passage of the EU (Withdrawal) Bill

2018: 93 of Scotland’s 129 MSPs vote not to consent to the EU (Withdrawal) Bill. The Bill passes regardless, and restricts the powers of the Scottish Parliament to prepare for EU exit.

2019: in the General Election, 53 of Scotland’s newly elected 59 MPs are committed to a further referendum on EU membership. 47 of 59 are elected on an SNP manifesto commitment referencing and reinforcing the Scottish Government’s mandate in respect of an independence referendum.

A process for agreeing the terms of this referendum should therefore now begin. The Scottish Government considers that the mandate it received in the 2011 Scottish parliamentary elections, and the negotiation and agreement that followed, represents a precedent for the way in which governments in these islands should acknowledge and respect the principle of self-determination.