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15 October 2016

The clock is ticking for Nicola Sturgeon’s Brexit strategy

Will we see a Sexit before Brexit?

By Julia Rampen

“You know, there’s not a day that passes just now without someone advising me to hurry up with a referendum,”  Nicola Sturgeon said at the opening of the SNP conference in Glasgow. “And there’s not a day that passes without someone advising me to slow down.” The First Minister ended on a joke: “Welcome to my world.”

But for many of the SNP members pounding the conference corridors, the question is deadly serious. The party has come closest to success when campaigning for an independent Scotland in the EU. One of the reasons the Yes campaign did not win the 2014 referendum was a refusal by European countries to make any promises on EU membership. There is widespread acknowledgement that trying to leave the UK after Brexit could be disastrous, especially if EU members states don’t play ball. Sexit, if it happens, must be before Brexit.

Speaking at a fringe event, Mike Russell, the Scottish government’s Brexit minister, made it clear what he would prefer: “If I were to take a step back and ask, is it easier to try to negotiate and win a referendum within the two years after Article 50, inherit the treaties and then amend them from within, [or do it] from without, I would say the former is the easier sell.”

In other words: “I always say it is much easer to apply from within than apply from without.”

The SNP leadership is campaigning for a referendum before the end of a formal Brexit process, with a message of continuity rather than change. The party’s retort to Theresa May’s catchphrase “Brexit means Brexit” is “Remain means Remain”. Sturgeon said in her speech that she was “determined” Scotland would, if necessary, reconsider the question of independence “before the UK leaves the EU”. Her deputy first minister John Swinney, a self-described SNP gradualist, said at a fringe event that it was “probably right” to hold a referendum before Brexit.

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In the SNP’s ideal scenario, a referendum would deliver a yes vote, and a friendly EU would agree that Scotland could inherit the seat once occupied by the whole of the UK. As Russell put it, referring to the member states: “27 would become 28 again.”

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But even in this streamlined vision, the timing would have to be perfect. Fiona Killen, head of parliamentary and public law at the law firm Anderson Strathern, believes it could be legally possible for Scotland to inherit the EU membership but “you would have to do that before [Brexit], or in the moment.”

That moment could be incredibly complex. As Killen put it: “If the result is yes Scotland has to negotiate with the UK and at the same time with the EU while the UK is negotiating with the EU. 

“Legally it can be done, the question is whether there is the political will.”

And with the Prime Minister, Theresa May, insistent the UK will leave the EU intact, that is very much an open question. Outside the SNP conference bubble, it’s necessary to rewind several stages. The Scottish government’s plan for a second referendum is not yet published, let alone recognised by Westminster.  Breaking up the UK is the Scottish government’s biggest card in Brexit negotiations, but the polls still suggest Scots are wary about this idea. If the SNP loses the independence gamble, there will be little else to stop the endless descent into Brexit. 

The SNP leadership knows this. Sturgeon has been careful not to close off the idea of a settlement within the UK, and her Brexit negotiator Russell is happy to point to “the bewildering number of options” on the table. Her Westminster cadres are speaking to MPs from all corners of Remainia, be they liberal Tories or metropolitan Labour representatives.

Should the Scottish government decide this is more the realistic option, its dilemma is when to stop playing hardball and accept a deal. A well-played game by both UK and Scottish negotiators could leave Scotland with devolved immigration powers – as Sturgeon demanded in her speech – and an acceptable trade deal. If the deal fails, the SNP must resort to referendums. May’s plan to trigger Article 50 in March 2017 means the clock is already ticking. And for the SNP, timing is everything.