Could a Post-Brexit United Kingdom Split Up?

The United Kingdom, it often seems these days, is hanging on by the skin of its teeth. The union that brought political consolidation to the island of Great Britain survived 2014’s Scottish independence referendum. Now, with Britain’s June 23rd vote on membership in the European Union fast approaching, the chances of the United Kingdom’s survival into the coming decades again lies imperiled — and this time from all sides. The U.K.’s devolutionary structure, wherein Scotland, Wales, and Northern Ireland each have their own national assemblies to deal with domestic affairs, might not have the constitutional fortitude to survive the result of the EU referendum.

The devolutionary structure of the U.K., though asymmetric, comes with certain implications. Chief among them is the recognition that three of the U.K.’s nations — the three on what is often called the “Celtic fringe” — have certain rights and privileges, granted to them by virtue of their distinct nationalities. They are accorded the power to legislate on matters deemed largely domestic: In Scotland, for example, health and education fall under the purview of the Scottish Parliament in Holyrood, not the United Kingdom’s Parliament in Westminster. Though Westminster retains authority over foreign affairs, the devolutionary structure opens the road to nationalist politicians in the Celtic fringe — and especially in Scotland — to claim that their nations are discrete political entities, which should not be subjected to a decision undertaken by English votes.

And that fear is a salient one in the EU referendum. Scotland, Wales, and Northern Ireland are heavily pro-EU; in Scotland, recent polling found that 60 percent of voters support the Remain position. But that same poll found that Leave had opened a ten-point lead, 55 percent to 45 percent, over Remain in the entire U.K. Demographic reality — England contains 85 percent of the U.K.’s population — could well lead to a scenario wherein the three Celtic nations vote Remain, perhaps heavily so, but their wishes would be overridden by a comfortable Leave victory in England. Such a result could be seen as a rejection of the principles of devolution and a subsuming of the United Kingdom by England.

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The alarm bells have begun to toll. Nicola Sturgeon and Carwyn Jones — respectively the first ministers of Scotland and Wales — released a statement last June that framed the potential crisis in stark terms: “Any decision to leave the EU, taken against the wishes of the people of Wales or Scotland, would be unacceptable and steps must be taken to ensure this does not happen.” Alex Salmond, Scotland’s former first minister and a current Scottish National Party member of the Westminster Parliament, warned that a vote to leave the EU in defiance of Scotland’s wishes would force another independence referendum by 2020. The implication is clear: If you leave the EU, don’t be surprised if we leave you.

Nevertheless, nervousness about the state of the Union in a post-Brexit Britain has not come exclusively from nationalists seeking independence for their countries. It has also come from those concerned about the British constitution. The House of Lords’ Constitution Committee’s recent report on the Union and devolution is a pessimistic affair in this regard: Not only does it admonish politicians (whom the committee eviscerates for not approaching the devolution question with a thought-through plan), it makes no attempt to hide the fact that the EU referendum may pose a profound threat to the British constitutional structure.

Most worryingly, the committee’s report notes that centrifugal tensions in the U.K. may come about regardless of how the EU referendum unfolds — if the U.K. votes to leave against the wishes of the Celtic fringe, or if the U.K. votes to stay against the wishes of England. The former case seems sure to spark a certain degree of Celtic nationalism; the latter might stoke the fires of English nationalism already being fanned by the United Kingdom Independence Party. So long as the push to tear apart the Union comes solely from the Celtic fringe, the Union may well survive, but once those same sentiments are translated into an English nationalism yearning to be rid of the Europhilic Scots, the political battle to maintain the Union begins to look like an uphill one.

#share#Even if we limit ourselves solely to the scenario of a Brexit decision secured through English votes against the majority of the voters in the Celtic fringe, a constitutional crisis of some severity looks likely. As Allan Tatham, a lecturer in EU law at CEU San Pablo University in Madrid, has noted, EU law is directly incorporated into the devolution statutes of the three devolved nations. (In practice, this means that any act of the devolved parliaments incompatible with EU law is invalid.) If Brexit means a clean split with the EU and all its laws, EU law would have to be wrenched out from the devolution statutes; to leave it in would be to allow Brussels to continue to exercise its power.

But, as the constitutional settlement known as the Sewel Convention established, any change in the devolution statutes can be passed only with the assent of the devolved assemblies — which represent constituents that are likely to have voted Remain in the first place. The assemblies will face the question of whether to assent to a Brexit that their constituents don’t want or to hold out and force EU law to remain valid in their territories. How that scenario would play out is unclear, but it would likely be something of an existential moment for the Union.

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The prospects for the Union thus look bleak, though there may be some saving graces — the Scottish case for independence in 2014 was heavily predicated on high oil prices; now that those prices have collapsed, independence would likely be a tougher sell to voters. Moreover, polling intriguingly suggests that Brexit wouldn’t make the Scots more pro-independence than they were in 2014 — meaning that Sturgeon and the Scottish National Party might not decide to call a referendum in the first place. But if oil prices trend back upwards, or if polling tilts again in the nationalists’ favor, that could all change.

The basic failure is Prime Minister David Cameron’s. The U.K. is no longer the centralized, unitary state it once was, a reality that has taken shape ever since Tony Blair offered Scotland and Wales devolution in 1999. But Cameron’s referendum makes no recognition of that reality. Over the last two decades, Westminster has trafficked in devolution, willingly surrendering a large degree of its own power. But that decision, made with the intention of placating nationalists in the Celtic fringe, has had the opposite effect, and has instead allowed nationalism to fester. The result is that Scotland now conceives of itself as a territory distinct from, though still within, the United Kingdom.

#related#National majoritarian referendums work only when the people participating in the referendum consider themselves to be members of the same imagined community. That is no longer the case for the United Kingdom, where 45 percent — 45 percent! — of Scots voted to secede in 2014. Given this reality, a national majoritarian referendum that made no consideration for the legitimate interests of already semi-autonomous regions within the U.K. was an idea doomed to lead to the possible breakup of the Union. Devolution comes with the recognition that the votes of Scots, Welsh, Northern Irish, and Englishmen are not equivalent, interchangeable things. Nothing could be further from the case in the EU referendum. If the result forces the disintegration of the Union, it will be that truth that lies at its core.