Nicola Sturgeon and Theresa May have both taken big gambles. The former in advising that she will seek permission for an independence referendum within the next two years, perhaps earlier than she would have wanted; and the latter in advising that she will reject any such request due to the timing of it, potentially fuelling more support for the very thing she wants to prevent.
Sturgeon is insisting that the people of Scotland need to make a decision on independence and membership of the EU before being forced to leave with the rest of the UK; whereas May’s concern is that this would impact on her ability to get the best possible deal for the whole of the UK in her negotiations with the EU, which Scotland is leaving, regardless how the people of Scotland voted.
It seems to me that underlying Theresa May’s refusal to budge on this issue is the very challenging question of whether Scotland’s 1999 devolution settlement would have looked different, and indeed whether we would have had any form of devolution at all, had the UK not been part of the EU at that time.
That we would have had a different settlement, or no settlement at all, appears to explain her position that when powers are returned to the UK on leaving the EU – for example aspects of fisheries and agriculture – there needs to be a decision made on where these returning powers should sit.
That decision, according to May, needs to be weighted towards a whole of UK solution, even if it would seem more in keeping with the current devolution settlement and its conventions that they were transferred to the devolved administrations.
So despite the damage it will do, Theresa May needs to do whatever she can to block independence before Brexit, because the UK Government needs unobstructed access to all those powers that are deemed necessary to negotiate new relationships for the UK that would not have been possible, or even necessary, as members of the EU.
A UK solution will be determined by which new trade deals we can agree, and what our new trading partners will demand from us; the most beneficial, or even just the legally consistent, repositioning of powers for any of the devolved nations of the UK will simply not come into the equation.
This is a threat to the devolution settlement, to the future of the Scottish Parliament, and therefore also to any prospect of independence. What would happen if the demands placed on the UK by the new relationships Theresa May is seeking meant that certain other devolved powers eventually had to be relocated back to Westminster temporarily, or even permanently, in order to achieve the best UK wide solution?
Where would this stop? Ultimately, it could lead to the permanent dissolution of the Scottish Parliament on the grounds that Westminster needed control over all powers for the benefit of the whole of the UK (which, after all, Scotland voted to remain part of in 2014).
Voting to leave the EU in 2016, and the Supreme Court’s decision that the devolved administrations do not need to be consulted on triggering Article 50, has highlighted that the Sewel Convention was worthless, and that the devolution settlement was designed as it was, not because it was the best settlement for Scotland’s future, but simply because the UK Government had no pressing need for certain powers to be reserved at the time, as a member of the EU, and with full access to its markets.
The manner in which the UK Government is handling this situation must send a chilling warning to Scotland that had the UK not been in the EU at all, devolution may not have happened in the first place; and had devolution not happened, we would not have had an independence referendum in 2014, and we could not even contemplate the possibility of another one, ever again. This is where Theresa May wants us to be, and why she is saying ‘no, not now’.