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The University of Southampton
Centre for English Identity and Politics

Dr Craig Prescott

“The Constitutional and Political Consequences of a Divided Referendum Result”

May 2017

University of Winchester

Dr Craig Prescott, University of Winchester


This is an uncorrected transcript of talks given at the seminar held at the University of Winchester.  Please do not quote without seeking permission from the speaker.

I am going to attempt to summarise the constitutional consequences of what the consequences of a divided outcome at the EU referendum may be. Firstly, it is worth considering what is meant by a “divided referendum outcome”. I take this simply to mean what happens if there is a difference between the result of the referendum in nation of the UK to the result of the UK as a whole. For example, if Scotland votes to remain in the EU, but the vote for the UK as a whole is to leave the EU.

I believe that both sides of the referendum argument must address the issues or problems I’m going to raise, particularly those arguing for Brexit. This is because the issues discussed below are perfectly foreseeable and because they are the ones arguing for the change, it is incumbent on them to explain how these issues can be resolved. This is not to say that they cannot be resolved, but they must show that these issues have been given serious consideration.

The Immediate Consequence

Under the UK legislation providing for the referendum it is the result for the UK as a whole that is relevant. If the UK as a whole votes to leave the EU, then the process to for the UK to leave the EU would begin. This is despite the SNP attempt to amend the legislation to require a majority in each nation of the UK, but unsurprisingly this failed to gain any traction within Parliament. However, this does makes sense from a EU perspective. The relevant Treaty article (Article 50, Treaty Establishing the European Union) that provides for a Member State to leave the EU, discusses Member States leaving the EU, not any subdivision of Member States. It would be the Member State, which is the UK as a whole, which would invoke the procedure, and there would be initially two years within which to negotiate the terms on which the UK would leave the EU.

This is consistent with the broad thrust of EU law, where it is the Member States, which are the relevant legal entities rather than any internal subdivisions. This can be seen in the recent decision of the Court of Justice which held that the Scottish Government’s proposed policy of a minimum price for a unit of alcohol was contrary to EU law, because the aim of the measure, protecting public health could be achieved by considering taxation, excise duties in particular as this this would restrict trade between the UK and rest of the EU to a lesser extent. The problem is that the Scottish Parliament does not have the power to change excise duties, as this is reserved to Westminster, but the Court of Justice was largely silent on this issue, preferring to focus on the UK as the relevant Member State.


Richard Wyn-Jones’s data discussed earlier raised an extremely interesting question, which is what would happen if England were kept in the EU because of the results in Wales, Northern Ireland and Scotland. This would lead to the largely unprecedented situation where the wishes of the English have not prevailed on such a major constitutional issue.

The consequences of such a situation are likely to be political first, and constitutional second. The demand for a response to this situation would be heard immediately after the referendum. One response would be to increase the role of England within the UK by giving England a greater voice, building upon such developments as English Votes for English Laws in the House of Commons (often referred to as “EVEL”), or speeding up the development of the emergent city regions and administrative devolution spreading over England. The House of Lords which is ripe for reform (when has it ever not been?) could be developed to give England a greater voice. However, none of these attempts are going to address the fundamental issue and a second EU referendum would be inevitable. It has to be remembered that it was the votes in England for the Conservatives offering an “in or out” referendum in the General Election last May which has led to this referendum in the first place. It’s also the case, that with the SNP hegemony in Scotland it will be the votes in England, which will be decisive in future general elections. All major political parties will seek to tap into the latent English demand for a second referendum in their future manifestos.

Intertwining Major Constitutional Issues and the “Just Like That” Approach to Constitutional Change

The most obvious question the issue of a “divided referendum result” raises is the issue of what will happen should Scotland vote to remain the EU and the rest of the UK (largely on the back an English vote) votes to leave the EU. The argument is that this will inexorably lead to a second Scottish independence referendum. Indeed, there is potential for those supporting independence to vote for “Brexit” in the hope of obtaining a second independence referendum. Nicola Sturgeon has pleaded for her supporters not to do this, but it is an example of how Scottish independence and Brexit has become intertwined.

This is an example of the most fundamental problem about the process of constitutional change since 1997 which the lack of a consistent process by which to undertake constitutional change. In 1997, Labour entered government with a list of constitutional changes and implemented them one by one, in a manner described by Peter Hennessy as the Tommy Cooper approach to constitutional change, it all happened “just like that”. There was very little consideration of how to approach the whole package of Constitutional reform as a single unified whole. Indeed, this very idea was actively decided against. In 1997, Tony Blair decided against a declaratory White Paper approaching the whole project linking the reforms together.

Whilst in some ways this reflects the traditional approach to constitutional change, which is resolve issues as they arise using the path of least resistance with no fundamental goal at the end. It does not reflect the gradual nature of constitutional change, taking place over decades. To take the example of the House of Lords, significant reform took place in 1911 with the Parliament Act significantly restricting the legislative powers of the Chamber, followed by the introduction of life peers in 1958, the ability of hereditary peers to renounce their peerage in 1963, the removal of all but 92 hereditary peers in the House of Lords Act 1999, and some minor changes in 2014, including members to retire for the very first time. By contrast since 1997, and particularly over the past decade, governments are continuously embarking on fundamental constitutional reforms, asking existential questions about the very nature and structure of the state. The result of this is that the issues of Scottish independence and membership of the EU have become entwined. It’s as if the scaffolding is permanently up, and we have called the plumber and electricians in at the same time, and are at risk of mixing up water and electricity. Continuously redeveloping the fundamentals of the constitutional structure is simply not sustainable.

The paradox of second Scottish Independence Referendum

Focusing on Scotland in more detail, the interesting aspect of this is how Nicola Sturgeon has to some extent tried to distance herself from demands for a second independence referendum, as she said on The Andrew Marr Show after Cameron returned from the Council Meeting in Brussels with his new terms of membership, ‘If we [the Scottish] were to be taken out of the European Union when we had expressly said we wanted to stay in then that would trigger a demand for a second independence referendum’. Interestingly, she was not saying that she would want to hold one but that it as if it would almost be inevitable, and she would have to go along with that demand.

This belies a difficulty that the SNP have. The challenge in a second post Brexit independence referendum is to make the argument that independence and seeking entry into the EU, with the rest of the UK out of the EU is the same proposition as it was in 2014 when Scotland would have be seeking to rejoin the EU with the UK remaining a Member State. The arguments that the SNP made in 2014 in their White Paper stated that Scotland’s relationship with the rest of the UK would be similar to Britain and Ireland’s relationship where “the two economies benefit from a flow of people, goods, investment, capital and ideas on a scale that is rare even in this era of global economic integration”. The underlying tone was that an independent Scotland would seek to remain close to the UK within the envelope of the EU.

This is a significantly more difficult to make that argument if the rest of the UK is out of the EU. To some extent the arguments for the UK remaining in the EU also apply to Scotland remaining in the UK. On the SNP’s own figures two-thirds of Scottish trade is with the rest of the UK, being approximately £50 billion out of £75 billion according to figures in 2014. The Britain in Europe argument in relation to the EU applies in this context; does it make sense to create barriers to that trade if you’re Scottish? Similarly, the SNP’s policy in 2014 was to retain sterling, at least initially after independence. This was always a difficult argument to make when the UK Government indicated that they were not willing to agree to this, and this argument will be even harder if Scotland wants to rejoin the EU after independence and the rest of the UK is out of the EU. The conclusion is that the proposition of independence is very different should the rest of the UK be out of the EU.

The paradox for the SNP is that a split referendum result is likely to be the best opportunity for a second independence referendum in the immediate future, but it may be even harder to win the referendum. The other element is that the SNP are at their zenith. They currently have a majority government in Holyrood and won 56 of the 59 Scottish constituencies in the general election last May. The issue is to what extent can this momentum be maintained? As the Scottish Parliament gains further tax-raising powers the nature of Scottish politics changes as the Scottish Parliament moves from being a spending Parliament to being a tax and spend Parliament. This will involve making choices, and the first time within Scottish politics a political party can make arguments based on tax, which will change the nature of Scottish politics. The fundamental issue here, is how deep is that all that 50% share of the vote for the SNP in the 2015 election and to what extent the other political parties can chip away at that vote. If a second Scottish independence referendum is “lost” then the independence cause will be put back for a very long time.

Finally, as regards Scotland, there is a timing issue, if the UK votes to leave the EU, and then (according to the TEU Art 50), Brexit could take place two years later. It could be longer (although probably not the 10 years that David Cameron has suggested). But taking this schedule, this means that Brexit could take place in mid-2018. If a second Scottish independence referendum were demanded, Westminster would be required to pass the necessary legislation. With the template of the 2014 referendum to fall back on this could take place within a year, so optimistically the earliest this referendum could take place in mid-2017. The SNP previously argued that independence could occur within two years, so that would be mid-2019. So, at least theoretically the UK could leave the EU in mid-2018, Scotland gain independence in mid-2019 and would then have to apply to join the EU. This is a recipe for chaos, and it would be in everyone’s interest if the choreography of this were organised in a more logical way.

This reveals, with hindsight, a fundamental weakness in the St Andrews Agreement that established the framework for the 2014 Scottish independence referendum. There was a general belief that the referendum would settle the independence question for a generation. Although two years later, there is scant evidence for this. Arguably what Cameron should have secured in the Agreement was a legal condition that a second referendum could not be held for a certain period of time. The legal precedent for this is the Northern Ireland Act 1998. Under this Act a second referendum on whether Northern Ireland remains part of the UK, cannot be held within seven years of the previous one. A provision like this would have stabilised the situation in Scotland, but the current situation is symptomatic of the disjointed approach to the constitution described earlier. The most stable constitutional settlements are essentially a combination of political judgment within a clear legal framework, and with Scottish independence we simply have not had that.

Northern Ireland and the Peace Process

The clearer legal framework that exists in relation to Northern Ireland stems from the Good Friday Agreement. In terms of EU membership, the Preamble agreed to by the Irish and British Governments, states that the parties wish “to develop still further the unique relationship between their peoples and the close co-operation between their countries as friendly neighbours and as partners in the European Union”. The essence is that membership of the EU of both the Republic and the UK was the envelope within which the Good Friday Agreement was made. Essentially what is the substance of the difference between us if we both belong to the same larger club?

For present purposes, one of the key clauses is that the British and Irish governments recognise

“birthright of all the people of Northern Ireland to identify themselves and be accepted as Irish or British, or both, as they may so choose, and accordingly confirm that their right to hold both British and Irish citizenship is accepted by both Governments and would not be affected by any future change in the status of Northern Ireland”.

This reflects the Common Travel Area between the UK and the Republic, but the Common Travel Area poses one of the biggest problems for those arguing for Brexit. According to MacDonald’s Immigration Law and Practice the Common Travel Area means that ‘all British and Irish citizens and EEA nationals are free to travel between Ireland [and] the UK … without any passport control”. There is also some co—operation on immigration matters, so the Irish Port Authorities can refuse entry to someone who is destined to travel to the UK, but they believe they would not qualify for entry to the UK.

Legally, this agreement between Britain and Ireland is a strange beast. The Common Travel Area is not recognised directly in law, and it is not established by a formal agreement. Instead, UK and Irish law gives effect to this understanding, with British and Irish citizens being excluded from the relevant provisions of immigration law. Ironically, the only direct legal recognition is in the Treaty of Amsterdam, which incorporated the Schengen Agreement into EU Law, stating that the UK and Ireland have decided to opt out, favouring their own Common Travel Area.

There are problems for those arguing for Brexit here. Once a EU national is in Ireland (exercising their rights of freedom of movement), they can travel within the Common Area into the UK. This is a potential weakness in the “immigration argument”, Under English law as it stands, the Common Travel area is reflected in our immigration law. For example, if a national from a third country arrives in the UK there is a general right to remain for three months, but this does not apply to Irish or EU citizens. How can they be distinguished when travelling from Ireland within the Common Travel Area?

It is difficult to resolve this. If conditions exempting EU Citizens from the benefiting from the Travel Area are imposed, this is legally possible, but would be difficult to implement. To enforce this properly, it would require border controls on the land border between the Republic of Ireland and Northern Ireland. This border is 280 miles long, it does not follow any natural boundary as such, and around 180 roads cross the border. It goes without saying that placing border checks on this area would imperil the peace process, the tenor of which is improved relations between Ireland, Northern Ireland and the rest of the UK.

Exempting non-Irish EU citizens from the Common Travel Area is theoretically possible, but this would jeopardise the Common Travel Area, as Ireland would have to continue to comply with EU law on freedom of movement. Especially, because that land border is so hard to control, the whole notion of the common travel area is reciprocity. A further alternative could be to place restrictions on travel from the island of Ireland to the UK. But this appears to be a nonstarter because when travelling internally within the UK British Citizens in Northern Ireland (with a British or Irish passport) would be treated differently to other British Citizens. Again, this goes against the essence of the Good Friday agreement. Furthermore, creating an exception for Northern Irish Citizens is impossible as Northern Irish citizenship does not exist in law, and creating such citizenship would be extremely difficult politically in Northern Ireland.

It would also be the case, that the substance of many of these problems would be replicated if Scotland obtains independence…


There’s also Wales, which is in many ways this is the dark horse of the four nations in this whistle stop tour. Wales is likely to only have a decisive impact on the result if it is close in the rest of the UK. It is inevitable in referendums that different areas may vote in different ways, but as stated earlier, it is the aggregate of the votes of the entire political unit that is the result of the referendum. Orkney and Shetland still found themselves governed by a Scottish Parliament even though they voted against its creation in 1997, and the residents of Oxford, Cambridge and Islington still casted their votes though the first-past-the-post system at the General Election last May, even though they voted for the Alternative Voting system in the referendum in 2011.

Politically, should Wales be taken out of the EU against its wishes, this may boost Plaid Cymru, which may in turn have a constitutional impact in terms of greater devolution. This may bring forward a potential referendum on tax raising powers for the Welsh Assembly, but it does not specifically deal with the issue. Fundamentally, referendums are about winners and losers.


Finally, I’d just like to make the point that the UK as a Member State of the EU shares a second land border with the EU. Gibraltar. Gibraltar arguably stands to be the biggest loser of anyone involved in the referendum in the event of Brexit. In Gibraltar, membership of the EU is part and parcel of daily life. Thousands of people cross the border with Spain every day to work in Gibraltar, the Euro is readily accepted in cafes and shops, and Gibraltar relies on the free movement of services for its e-commerce and gambling industries. These have increasingly formed the basis of its economy as Royal Navy presence on the “The Rock” has been greatly reduced over the previous decades.

The border with Spain is arguably the most contested within the whole EU, as Spain continues to claim sovereignty over Gibraltar, and skirmishes over the border are not infrequent. Spanish police have searched properties on Gibraltar territory, the Spanish Navy have entered Gibraltarian territorial waters without permission and crossing the border (a border within the EU remember) can be a tiresome process with delays of several hours. Brexit would place Gibraltar in a vulnerable position economically and politically.

Consequences for English Identity and Conclusion

As today’s conference is very much about English identity and English politics, what is the relationship between these issues and English identity? I have been surprised by how little these issues have been discussed in the campaigns thus far. However, given the polling data that Richard showed us earlier, this could be a consequence of the link between an English identity and support for Brexit. If you support Brexit because you are concerned about “English issues” because you feel more English than British, it may follow that you are disinterested in the issues I’ve described about the rest of the Union. Furthermore, the lack of interest in the Gibraltar point amongst Brexit supporters may also indicate that Englishness is also a postcolonial identity. Whereas if you identify yourself as British then by definition, arguably all of these issues will matter to a greater extent. This really is an area for future work.

To finish, I’d like to quote the former Labour MP, Tam Dalyell, who was most passionately against Scottish devolution. He described the creation of the Scottish Parliament as a “road to nowhere without exit”. It seems that if you are concerned about the Union, then unless these issues described are addressed by both sides of the campaign, particularly those arguing for Brexit as I explained at the start of this lecture, then this referendum really is a “road to nowhere with Brexit”.


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