The First Minister is heading for a fall - but can Labour take advantage?

The First Minister is heading for a fall - but can Labour take advantage?

by Brian Monteith
article from Thursday 21, July, 2016

In a curious turn of events the normally canny First Minister is setting herself up for a fall from an almighty height, and the new Prime Minister Theresa May is giving her a leg-up to do it. 

In one of the most fast-moving and fascinating political weeks since the turn of the millennium the country has gained a new prime minister, a new cabinet and the premier has then jetted up to Edinburgh to emphasise her commitment to maintaining unity of the United Kingdom. The tall Mrs May in her kitten heels towered over the diminutive Ms Sturgeon in her stilettoes. Will this become a metaphor for their political relationship?

Smartly, the prime minister offered to listen to what Nicola Sturgeon could come up with in her drive to maintain Scottish institutional links with the European Union separately from the UK, while her own government prepares its negotiating position for leaving. Tellingly, while she believes there this no need for a second Scottish referendum on independence she does not appear to have ruled it out. Theresa May is going out of her way to be sweet reasonableness personified, leaving Nicola Sturgeon to find the solutions to the red lines of her own creation. 

Thus far no one has shown how it would be possible for Scotland to remain within the Single Market or have free movement of labour both, crucially, under the jurisdiction of the European Court of Justice – while being in the United Kingdom, which would be outside its jurisdiction.

The recent referendum asked voters if the United Kingdom, not Scotland, should remain a member of the EU or leave. The reason is obvious, it is the UK that is the member state, a reality that the First Minister, who is a qualified solicitor, must surely understand the meaning of. Despite Ms Sturgeon’s foot-stomping indignation at the referendum result this inconvenience puts the First Minister on far weaker ground than she cares to admit. 

Do not take my word for it, but consider that both Francois Hollande of France and Mariano Rajoy of Spain have both made it clear that negotiations will take place with the UK, not part of the United Kingdom. Both politicians will be able to pull the rug from under Nicola Sturgeon, the question is not so much if they will but when they will. Behind them other countries are lining up to make life difficult for any Scottish claim to separate membership, including Germany, Denmark and the Czech Republic. 

Similarly, and for all of the pomp of her visit to Brussels, Council President Donald Tusk declined to see her and delegated the responsibility to the Parliament President Martin Schulz, while Commission President Jean Claude Juncker has issued a statement that he does not wish to become involved in internal United Kingdom matters.

Learning from her mentor Alex Salmond, the master of bluff and bluster, Ms Sturgeon has decided to simply ignore these international rebuffs, but one day they will, if necessary be played out. Mrs May knows this.

There are some media commentators who have mischievously suggested Nicola Sturgeon now has a veto over the Prime Minister’s ability to trigger Article 50 that begins the withdrawal process, but Downing Street was quick to deny this and the First Minister’s office has since had to confirm this. 

While the Prime Minster would prefer to achieve a common UK position that enjoys the backing of the devolved administrations in Edinburgh, Cardiff and Belfast, and is clearly going to employ a great deal of diplomatic wooing to achieve this, if she fails to win such support she has given no guarantee she will hang around waiting. We can expect Article 50 to be triggered either side of the New Year and it will then be for Nicola Sturgeon to find the justification to call for a second referendum and have that passed in the Scottish Parliament.

For Nicola Sturgeon this whole drama is about constructing a new grievance, or better still, a set of grievances, that will raise the hackles on the back of the necks of enough Scots so that the tipping point is reached when she can secure a majority for independence. 

Scotland being “dragged out” of the EU when, as the referendum question revealed it is not a member, is one such grievance. Scotland’s “democratic” claim to remain in the EU, when there is no legal basis to do so is another grievance. Having Scotland’s “legitimate” concerns for the future of its economy or different needs ignored is yet another grievance. Being denied a second independence referendum to put all of this right would be the grievance of grievances. A rabid dog in the street can see where Ms Sturgeon is trying to lead the country; if not to a referendum in the next year then with a grievance-based demand for a further referendum in her next manifesto, a demand she did not have the guile to include this year.

Assuming that any demand by Ms Sturgeon for a new referendum is passed at Holyrood, and this is by no means certain, then it will still be for Westminster to agree to sanction the legal power for it to have any force in law. Just as the Edinburgh Agreement, signed by David Cameron and Alex Salmond, finalised the details of the franchise, the question and the timing for the vote in September 2014, so there would need to be a similar agreement for any second independence referendum. 

Conservative politicians north and south of the border are, understandably, not keen to be seen denying a referendum if the Scottish parliament calls for one, but a number of questions would have to be settled before that process could be agreed. 

What would the question be the second time around? It does not follow that it should be the same as before with “Yes” and “No” options, given that testing by the Electoral Commission found that “Leave” and “Remain” provided fairer more balanced options for the EU referendum. Asking Scots if they wished to “Leave” the UK would undoubtedly change the dynamics of any campaign, just as it did in the EU referendum.

Even the franchise is not a settled issue. David Cameron was blind-sided by Alex Salmond’s use of the local government register rather than the general election register. This manoeuvre excluded at a stroke thousands of ex-Pat Scots that would otherwise have had a vote, or could be allowed to register for a vote if they worked in the rest of the UK and had been on the Scottish register in the last fifteen years. We can expect Mrs May to have her reading glasses on and not be so easily compliant.

Most importantly the timing could become the sticking point, for although Theresa May’s government might agree to a referendum it may say it can only take place once her Brexit negotiations are concluded and the UK terms for leaving and Britain’s future EU relationship is known. 

There would also be a very strong case for the Scottish government to demonstrate in advance of an independence referendum what its terms of EU membership would be so that those could be compared with what the UK had negotiated. 

• Would Scotland continue to receive the UK’s Fontainebleau abatement – worth £4.5bn – or would its membership fee be larger than it is now? 

• Unlike the UK would Scotland have to sign up to adopting the Euro within a stated period? Accordingly, would Scotland have to undergo a period of Austerity-Max to bring its deficit and public debt under control? What Scottish currency would be acceptable to the EU until the public finances were prudent?

• Would Scotland, like the UK did, be able to opt out of the Schengen agreement that enforces open borders between EU members states? Without that particular concession a hard border between England and Scotland (with its different immigration and trade policies) would be required. 

Scotland might hope to get some of what it would like, but EU membership is not an à la carte menu, Nicola Sturgeon could not expect to get all of her demands. The whip hand will be with the EU member states, with each and every one having a veto. Undoubtedly the terms of membership would be worse than they currently are and this would then be compared to the negotiated Brexit agreement that will offer the Holyrood parliament the management of agriculture and fisheries as well as an enhanced budget from savings that accrue from no longer paying EU membership costs and subsidies.

I fully expect the UK to set up a long list of tentative free trade deals that will make any potential downside to leaving the EU appear less risky. Already some twelve countries have indicated their willingness to start negotiating trade deals, including China, Australia, Malaysia, South Korea, USA – and there will be more to come.  A free trade deal with India, currently applying a 150 per cent tariff on whisky imports, would be a prize for Scotland outside the EU to cherish. 

Such deals will offer a tempting prospect to Scottish businesses and our economy. Would Scotland, already trading nearly four times as much with the rest of the UK than it does with the EU, really want to miss out on these new opportunities when access to the EU’s single market would still be possible?

With even just the outline of her Brexit deal negotiated Theresa May could then turn to Ms Sturgeon and offer her the independence referendum she publicly covets. Scots could be offered a choice between two unions, being inside a prosperous post-Brexit UK with the world as its oyster – or joining a EU that, with Britain gone, will have no reason to halt moving towards its goal of ever closer union that furthers its structural economic decline.

The First Minister would have to either accept the independence gamble without having an army of grievances behind her and therefore by her own calculations risk losing again – or suffer the most embarrassing of climb-downs and accept the Brexit terms. 

If the Scottish Labour Party could understand this process and how it will play out it could find a way to reconnect with the Scottish people by exposing how Nicola Sturgeon continues to put her party before Scotland. Thus far it has shown no inclination to wake up to reality, leaving Ruth Davidson the opportunity to maintain her position as leader of the opposition, an advantage she is unlikely to concede without a fight.

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