The 2016 Scottish vote for remaining in the EU received no consideration by the UK government for possible special arrangements. The prospect of a new independence referendum gains credibility as the constitutional convention on consultation was considered irrelevant by the UK government.
This paper 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.
Queen Mary School of Law Legal Studies Research Paper No. 300/2019
Also published in Federico Fabbrini (ed), The Law & Politics of Brexit, (Oxford University Press, 2017).