{"id":57,"date":"2018-09-06T18:23:59","date_gmt":"2018-09-06T18:23:59","guid":{"rendered":"http:\/\/podcasts.la.utexas.edu\/british-studies-lecture-series\/?post_type=podcast&p=57"},"modified":"2021-01-20T21:25:30","modified_gmt":"2021-01-20T21:25:30","slug":"scotland-and-brexit","status":"publish","type":"podcast","link":"https:\/\/podcasts.la.utexas.edu\/british-studies-lecture-series\/podcast\/scotland-and-brexit\/","title":{"rendered":"Scotland and Brexit"},"content":{"rendered":"
\n

Speaker – George Scott Christian<\/p>\n<\/div>\n

\n

In the last four years, fundamental questions have arisen about the future of
\nthe composite state created by the 1707 Treaty of Union between England and
\nScotland. In 2014 a majority of Scots voted to \u2018remain\u2019 in the Union. Yet in
\n2016 a large majority (68%) voted to \u2018remain\u2019 in the European Union. The
\nScottish Parliament has recently rejected the government\u2019s Brexit bill,
\ntriggering what many believe is a constitutional crisis. Is it? What are the
\nissues in contention? Could Brexit eventually result not only in Britain\u2019s
\ndetachment from Europe, but in the dissolution of Britain itself?<\/p>\n

George Scott Christian holds a virtually unique place in the British Studies
\nroster for his UT degrees: a B.A. in Plan II in 1982, a J. D. in 1984, an M.A.
\nin 1997, and a Ph.D. in English Literature in 2000. He is a practicing lawyer
\nas well as a teacher in English and History. His scholarly work on the British
\nnovel has appeared in the Dickens Studies Annual, and the Thomas Hardy
\nJournal. He has served as a legislative assistant to a Texas State Senator and
\nrepresents clients before the Texas Legislature. He is a devoted member of
\nBritish Studies.<\/p>\n<\/div>\n","protected":false},"excerpt":{"rendered":"Speaker – George Scott Christian In the last four years, fundamental questions have arisen about the future of the composite state created by the 1707 Treaty of Union between England and Scotland. In 2014 a majority of Scots voted to \u2018remain\u2019 in the Union. Yet in 2016 a large majority (68%) voted to \u2018remain\u2019 in […]","protected":false},"author":13,"featured_media":0,"menu_order":0,"comment_status":"closed","ping_status":"closed","template":"","meta":{"_acf_changed":false,"_genesis_hide_title":false,"_genesis_hide_breadcrumbs":false,"_genesis_hide_singular_image":false,"_genesis_hide_footer_widgets":false,"_genesis_custom_body_class":"","_genesis_custom_post_class":"","_genesis_layout":"","episode_type":"audio","audio_file":"http:\/\/podcasts.la.utexas.edu\/british-studies-lecture-series\/wp-content\/uploads\/sites\/4\/2018\/09\/18-08-31-British-Studies-Lecture-Series.mp3","podmotor_file_id":"","podmotor_episode_id":"","cover_image":"","cover_image_id":"","duration":"","filesize":"64.46M","filesize_raw":"67587968","date_recorded":"31-08-2018","explicit":"","block":"","itunes_episode_number":"","itunes_title":"","itunes_season_number":"","itunes_episode_type":""},"tags":[7,50,39,48,47,40,49,43,45,46,42,41,44,8],"categories":[],"series":[2],"class_list":{"0":"post-57","1":"podcast","2":"type-podcast","3":"status-publish","5":"tag-british","6":"tag-british-lecture-series","7":"tag-british-studes","8":"tag-british-studies-event","9":"tag-british-studies-lecture","10":"tag-british-studies-lecture-series","11":"tag-british-studies-series","12":"tag-bsls","13":"tag-dr-louis","14":"tag-dr-roger-louis","15":"tag-lecture","16":"tag-lecture-series","17":"tag-roger-louis","18":"tag-studies","19":"series-bsls","20":"entry"},"acf":{"related_episodes":"","hosts":[{"ID":949,"post_author":"10","post_date":"2021-01-20 19:50:06","post_date_gmt":"2021-01-20 19:50:06","post_content":"\n

Wm. Roger Louis is head of the British Studies Lecture Series. He is an American historian and a professor at the University of Texas at Austin<\/a>. Louis is the editor-in-chief of The Oxford History of the British Empire<\/a><\/em>, a former president of the American Historical Association<\/a> (AHA), a former chairman of the U.S. Department of State's Historical Advisory Committee, and a founding director of the AHA's National History Center in Washington, D. C.<\/p>\n","post_title":"Wm. Roger Louis","post_excerpt":"","post_status":"publish","comment_status":"closed","ping_status":"closed","post_password":"","post_name":"wm-roger-louis","to_ping":"","pinged":"","post_modified":"2021-01-20 19:50:06","post_modified_gmt":"2021-01-20 19:50:06","post_content_filtered":"","post_parent":0,"guid":"http:\/\/podcasts.la.utexas.edu\/british-studies-lecture-series\/?post_type=speaker&p=949","menu_order":0,"post_type":"speaker","post_mime_type":"","comment_count":"0","filter":"raw"}],"guests":[{"ID":808,"post_author":"40","post_date":"2020-06-23 19:25:16","post_date_gmt":"2020-06-23 19:25:16","post_content":"\n

George Scott Christian holds a virtually unique place in the British Studies
roster for his UT degrees: a B.A. in Plan II in 1982, a J. D. in 1984, an M.A.
in 1997, and a Ph.D. in English Literature in 2000. He is a practicing lawyer
as well as a teacher in English and History. His scholarly work on the British
novel has appeared in the Dickens Studies Annual, and the Thomas Hardy
Journal. He has served as a legislative assistant to a Texas State Senator and
represents clients before the Texas Legislature. He is a devoted member of
British Studies.<\/p>\n","post_title":"George Scott Christian","post_excerpt":"","post_status":"publish","comment_status":"closed","ping_status":"closed","post_password":"","post_name":"george-scott-christian","to_ping":"","pinged":"","post_modified":"2020-06-23 19:25:16","post_modified_gmt":"2020-06-23 19:25:16","post_content_filtered":"","post_parent":0,"guid":"http:\/\/podcasts.la.utexas.edu\/british-studies-lecture-series\/?post_type=speaker&p=808","menu_order":0,"post_type":"speaker","post_mime_type":"","comment_count":"0","filter":"raw"}],"transcript":"

We are very glad to have such a robust beginning to the British studies seminar
\nthis year. This comes close to a record number of people who have been
\nat the very first meeting of the seminar. And I suppose that the reason
\nis because of George Scott, Christian. Everyone is looking forward to his
\ntalk. And I will actually read a couple of lines and I’ll read them because as I
\nunderstand it, these talks are recorded. And unless it’s helpful for people who are
\nlistening to the lectures to have a little bit of detail that otherwise wouldn’t go into
\nan introduction. So let me say that as George Scott, Christian and Scott, to distinguish
\nhim from his father, George Christian, the adviser to LBJ and so
\non. George himself holds virtually a unique
\nplace in the British studies roster because of his U.T. degrees, a B.A.
\nin plan to 1982, a JD
\np_h_d_ and 2000. He is a practicing lawyer
\nas well as a teacher in English history and literature.
\nHis scholarly work on the British novel has appeared in the Dickens Studies
\nAnnual and the Thomas Hardy Journal. He’s served as
\na legislative assistant to a Texas state senator
\nand he represents clients in the Texas state legislature.
\nAnd like his mother, Joanne Christian, who was a member of British studies from the very
\nbeginning in nineteen seventy five until a few years ago before her death,
\nGeorge also is a very devoted member of British studies. George Christian.
\nAll right. Well, thank you, Roger, for a generous
\nand mostly accurate introduction, part
\nabout my mother’s is absolutely correct. It is
\nan honor to be here, as it always is. It’s just an honor to be a member of this seminar, to begin to speak to the seminar.
\nAnd I’ve done that on occasion over many years is really sort of
\nsomething I could not have ever imagined as a young beauty student or is grown up. Hearing about
\nthe seminar from my mother used to sit in that corner of the table right where Tom Cable is.
\nAnd to actually appear and to kind of take her place, in a sense
\nis really quite touching. And I can never kind of get over her not being
\nthere. It’s quite some it’s quite a time warp kind of a thing.
\nI’m not sure why Roger asked me to speak about this subject, because my knowledge of Scotland is really good.
\nUp to about eighteen hundred, not so much after that.
\nAnd nobody knows anything about Brexit. I’m convinced now totally
\nthat everybody is clueless about it. And we’ll talk a little about
\nkind of what we think might be happening. But your guess is as good as mine. And
\nI really hope that maybe this is more of a discussion about this situation
\nthan it is me telling you anything about it. So let me tell you kind
\nof how I’m going to approach this. You may recall in 2014,
\nI if you don’t recall, don’t worry. I barely work all things that long ago. I
\ngave the last lecture at British studies
\nfor the 2013 2014 term. And the subject of that was
\nwhether Scotland that was just prior to the independence
\nreferendum that was held later in the year. And I spoke about
\nwhat might happen if the Scots either did or did
\nnot vote in favor of independence. And I kind of reviewed
\nwhat I thought to be kind of a recurrence in Scottish and English relations of periods
\nof devolution and periods of consolidation and kind of looked at it historically that way.
\nAnd this was one of my last slides. And it was that guy who
\nhas dropped into complete oblivion, as far as I can tell. And I asked the question,
\ndo we have another constitutional crisis in Anglo Scottish relations
\naround the corner? And if you’ll hit that next button, hopefully it’ll work. And at that time,
\nthere was a news report very freshly minted about David Cameron
\ntelling Tory m.p.’s and his troublesome backbenchers that he was
\nplanning to bring a referendum to the ballot on the
\nexit from the EU. Question And you see here,
\nhe said, the sooner I can deliver on our commitment of renegotiation and a referendum,
\nthe better. And so I brought this up as Gordon Well, if this happens,
\nwhat’s going to happen next? Next slide? Well,
\nit happened. And that’s kind of a funny cartoon. Next slide,
\nhopefully there was a pretty rapid response from the Scottish government
\nat the time, even before this was proposed
\nfor the ballot where Alex Salmon, who was the first minister of Scotland
\nat the time, the leader of the Scottish National Party, he said five and a quarter million people ceasing
\nto be EU citizens against their will is more than absurd. There is simply
\nno legal basis in the EU treaties for any such proposition. And it is against the founding principles,
\nthe European Union. Now, what Alex Salmond didn’t say at the time was
\nthere this thing called parliamentary sovereignty. That kind of overrides that. But we’ll talk about that
\nin a minute. So move the videotape, OK? Since
\nI gave that talk in 2014 to referenda had been held. As
\neveryone knows. So the first one, which the next
\nremain in there. I just put up a little chart. You probably can’t see it of kind of the
\ndemographic breakdown of that vote. And if you want to see it, I’ll send it to you. But
\nit generally shows that, yes, voters
\naccept. In this, if they were born in Scotland, they were more likely to vote yes
\nthan remain if they were men, they were more likely to vote yes
\nthan women, too. I mean, to leave
\nthe union and I thought that was just an error. Say it’s a close. It’s a much closer vote, I think, than
\npeople really think it was. And and there is a substantial
\nnumber of remain and leave voters
\nthat are still there. This issue still polls about the same way. By the way,
\nyou had changed a whole lot since then. In twenty sixteen
\nin the EU exit referendum, 62
\npercent of Scots voted to remain in the EU. And this vote
\nwas pretty generally universal across Scotland in all constituencies.
\nIn Scotland, it was particularly strong across the urban belt
\nof Scotland. Leave got more support in the
\nborders area, in the rural areas of Scotland, looked a little like England actually,
\nwhere the rural areas went very strong for leave, whereas the more urban cosmopolitan
\nareas went pretty strong for remain. And that’s kind of what happened in Scotland. But
\nas you could see by the yellow, all of Scotland voted to remain. So there
\nreally is a different mandate. If you look at it this way and that’s debated,
\nobviously is how you look at this vote. The mandate was pretty strong from the
\nScots across the board in all kinds of demographic categories, young,
\nold men, women to remain in the EU. All
\nright. OK. The day after
\nthe EU vote, the Brexit vote, things started
\nto happen immediately. And you may know in May 2016,
\nthere was an election in which SNP stood
\non the proposition that if if there is a significant and material
\nchange in circumstances that prevailed in 2014, such as Scotland being taken
\nout of the EU against its will, then the SNP, the Scottish government
\nwould propose a new independence referendum that this
\nparticular right contingency which did occur and it had
\nnot occurred as of the issuance of this manifesto, would trigger another
\nindependence referendum request by the Scottish government. We’ll talk about
\nagain, I’ll remind you what has to happen for there actually to be a constitutional referendum in
\na minute. And as you see here, last year,
\nthe first minister, Nicola Sturgeon, said she believed that it would be wrong for
\nScotland to be taken down a path that it has no control over, regardless of the consequences
\nfor our economy, for our society, for our place in the world, for our very sense of who
\nwe are as a country. That would be wrong. And therefore, my judgment is that we should have that
\nchoice. The policy of SNP has been pretty clear from from the outset
\nthat once Brexit was determined by referendum, that Scotland
\nwas going, at least from the S&P’s perspective, the ruling party
\nin the Scottish government, that at some point in time
\na referendum on independence would be mooted again. Now, since
\nNicola Sturgeon said that. You know, there’s been some going back and forth
\nwithin S&P, within the Scottish government on the wisdom of doing it, particularly
\nin the face of these opinion polls that are not showing much change
\nin the kind of overall attitude of the voters towards independence right now.
\nOK, now I’m getting kind of get into what I really want to talk about here. It’s not really the politics
\nof, you know, in Scotland or the politics between Scotland and England, even
\nthough I am going to talk a little about that. But I want to talk to you about
\nare there really constitutional issues involved here? And if so, what are they
\nand how serious are they? Because this, I think, is where the battlefield
\nreally, really is. And if you are following
\nBrexit, generally, this is this is one of the, I think,
\nmost significant issues in Brexit. Just aside from how they’re
\ngoing to get out, are they going to have a hard Brexit or are they going to have a soft Brexit? They’re
\ngoing to have some, you know, intermediate Brexit. That, I guess is. I don’t know.
\nJust. Right. Maybe. I don’t know. But whatever happens with
\nthe negotiations between the EU and the UK,
\nthat’s not going to resolve these constitutional questions that Brexit now has
\ncreated that that really existed before Brexit. But the Brexit,
\nBrexit now, because of the uncertainty around it and the differential economic effect it’s
\nlikely to have on the devolved parts of the UK,
\nparticularly in Scotland. Right. It’s created a whole a whole new level,
\nI think, of scrutiny of the constitutional position of devolved
\ngovernments in the UK and has brought now back into question
\ncertainly the sincerity of the UK government in
\nits desire to continue to devolve powers to
\nthe other governments in the UK. And whether or not we might be actually seeing
\na reactionary move by the Conservative Party to reclaim
\npowers has already devolved. And that’s another outcome that I think people have
\nbegun to talk about recently, that this could come back
\nas a power play by which parliament, the UK government kind
\nof gathers up its powers again to legislate for the whole UK.
\nAnd of course, this isn’t just a Scottish issue, as you know, it’s a Welsh issue, a Northern Irish
\nissue. And we’ll get into what those are. I wanted to put this
\nup here, because it may have been a while since you actually read the Treaty of Union between Scotland
\nand same body read. That reason was on your list this summer. Anybody? Well,
\nI went back and read it. It just because I didn’t know what I was going to say today. So I said, well, it’s about
\nthe constitution in the Treaty of Union is that is actually a constitutional provision. Right.
\nIt’s one of the parts of this thing called the English Constitution that everybody kind of
\nknows what it is, but nobody can point to it like it doesn’t exist in any kind of codified form
\nor anything. Right. And so when we talk about it, it’s kind of like, I
\ndon’t know, God, you know, it’s distant, it’s remote. It doesn’t talk back to you.
\nAnd so what does the Treaty of Union have to say
\nabout this? Because once this was ratified in 1787
\nby the two parliaments of England and Scotland at that time,
\na sovereign nation. Right, with a sovereign parliament, obviously
\nhad authority to actually do this. You know, what were the terms of that agreement and what became
\npart of the Constitution? Well, this is kind of a preamble to it. And it says,
\nright, as you can see, that the two kingdoms on this date forever
\nafter be united into one kingdom by the name of Great Britain. Right. And then it goes on into flags
\nand stuff like that. That flags are really important, right? Aren’t they? I went back
\njust for grins to look at what the Anglo Irish Treaty of Union says about
\nthis follows the same pattern. And it also has this stuff about flags.
\nAnd I was like, great, what the Irish treaty doesn’t have that the Scottish one does is
\na lot of language about no Popery and Protestants,
\nwhich is a really interesting distinction, actually. And then it has all these details
\nabout the duties that are going to be paid on various things. That treaty is quite interesting actually to look at.
\nBecause it has sort of broad kinds of principles in it like that. It also has real specific
\nlegislation. And I want to I want to I want you to think about that, because
\nwe’re we’re going to talk about some of these issues in terms of the kinds of powers that
\nthey’re fighting about. Right. OK. OK.
\nSo that’s kind of the basis of the kind of constitutional position
\nof the current UK. With respect to England and Scotland, they’re bound by this treaty.
\nRight. The most that everyone agrees was legitimate. Right. But that’s not
\nthe whole story. There are many other parts. Right. Of
\nthe constitutional picture. Right. These are all right.
\nSpecific statutes and other conventions that govern the question.
\nRight. Of the constitutional relations of these two entities. Right. And
\nnobody is even quite sure what kind of entity Scotland really is.
\nAnd, you know, that’s a question that continues. You know, historians can’t agree on that,
\nwhich I find particularly interesting. It’s just a very elusive kind of concept.
\nSo I wanted to give you a sense of the kinds of
\nconsiderations, right. That lawyers in the U.K. and lawyers
\nin Scotland and judges are being asked to look at and consider
\nin litigation that’s ongoing right now between the Scottish government and the U.K.
\ngovernment and that all of these particular lords and
\nare implicated here. Right. This is an enormously complex question.
\nNow everybody knows, right? The first thing I’ll talk a little about is the Scotland
\nAct of nineteen ninety eight. All right. This is the act that was passed
\nby the UK government, by parliament to devolve power to
\nScotland and to reestablish a Scottish parliament.
\nRight. With certain devolved powers. And
\nwhat this went back and read this law. It’s an immensely long wall, a
\nhuge statute. It’s quite detailed in some respects and it’s quite vague
\nin other respects. It basically what it does, it reserves certain
\npowers to write U.K. government. So the first thing it does,
\nit says we’re going to have a Scottish parliament. It’s going to be elected in this fashion, goes through
\na lot of the process that you have to go through to actually constitute parliament. But then the meat
\nof the statute is who’s going to do what? What does the U.K. government keep?
\nWhat do we give to Scotland? Most of the statute is devoted
\nto what’s kept by the UK government. It’s reserved.
\nWhat is actually granted or devolved right is much, much more limited.
\nAnd it’s also riddled with exceptions. And then, of course, there’s a provision
\nthat after you’ve gone through all of these reserved and devolved powers, it says. But
\nthe UK parliament reserves the right to legislate for the whole United Kingdom.
\nWhat parliament giveth. Parliament taketh away. In the same statute
\nand we’re going to look at the problem that that’s causing right now,
\nalong with the Scotland Act of nineteen ninety eight. There is something
\ncalled the Sewel convention. Does anybody know what this is. Has anybody heard
\nof the civil convention. I had heard of it. I was reading.
\nI always reading going and I saw this Sewel convention. What the hell’s the social convention.
\nWell I’ll tell you what it is because it’s become really important. And
\nnobody knows what it is. This is so typical of British law generally
\nand the way the English run things that there are these really important things
\nthat happen that aren’t written down. You don’t know where they are. Somebody said something in a meeting
\nand suddenly it became a constitutional convention. And you’re going, how did this happen?
\nOK. I’m just going to tell you what it is. It’s real boring, it may sound, but you got to know this
\nto kind of understand what’s going on. So I’m going to read this part. I know it’s not good
\njust to read your notes, but bear with me just for a little short paragraph
\nhere. The Social Convention refers to a statement, a statement,
\nOK, made by Lord Sewell
\nin the House of Lords regarding the Scotland bill. And this was in
\ndebate on the bill beginning in nineteen ninety seven, carried over into nineteen ninety eight.
\nThis was actually on a date July 21st, nineteen ninety eight.
\nAnd here’s what Lord Sewell said, and this is his exact words in quotation
\nmarks. We would expect a convention to be established that
\nWestminster would not normally legislate with regard to devolved matters in Scotland without
\nthe consent of the Scottish Parliament. He said that
\nin a debate we would expect that. That doesn’t really sound like that
\nwould rise to the level of like a binding kind of agreement to do that
\nor anything. But this became the sole convention. It was embodied
\nin a memorandum understanding between the government, the UK government
\nand the devolved executives of Scotland, Wales and Northern Ireland, which was concluded
\nin nineteen ninety nine. So it became kind of part of an ammo you right.
\nWhich is kind of like a contract. We’re gonna kind of dealy with each other this way.
\nGovernments do this all the time. It’s a will, a weird what the legal status of the nimo you
\nactually is if anybody can enforce one against another government. But it is like a contract.
\nThe theory of the convention, the Sewel convention is that the UK
\nParliament’s sovereignty and power to legislate for the whole UK, which nobody really questions
\nhere. Right. That’s a kind of bedrock law, if you will.
\nIt has not been changed by devolution. Right. There’s nothing in the Scotland Act or lacks for Northern Ireland
\nor Wales that is in any way change parliamentary sovereignty, but
\nthat the, quote, spirit, spirit of
\ndevolution implies that political power lies with the Scottish government
\nand that its consent should be obtained prior to legislating in areas of devolved competence.
\nThe Sewel convention also applies when the UK parliament varies
\nthe legislative competence of the Scottish Parliament or the executive competence
\nof Scottish ministers. OK, so the social convention is a fairly.
\nPervasive and broad. You know, it’s a far reaching idea,
\nand the underlying principle is that while Parliament retains sovereignty to legislate
\nfor the whole UK, it won’t do that under most
\nconditions. There’s still that word normally in there. Right.
\nIt without asking the Scottish government to give it the political consent
\nthat would presumably make the relations between the two entities
\nmore pleasant. Well, as we’ll see here in a minute, the pleasantries are out the window
\nhere. Nobody is being pleasant about this right now. I don’t know if anybody’s gone
\nand listened to any debate in parliament between this MP members and the government lately.
\nThings have gotten to be. I’m not sure. An all time low
\nin the feelings between Scotland and England or the hard feelings. But they’re
\npretty seriously close. It’s hard. I mean, we have we’re used to Republicans
\nand Democrats fighting each other, but we’re not used to Texas trying to kill New York
\nin it. Really. It’s become quite entertaining to watch
\nif you’re outside of it. But but I think part of what’s going on here is the political
\nramifications of Brexit, which were poorly understood in advance.
\nObviously, nobody understood. They thought they were going vote the name. Right. So now what?
\nBut I think the political ramifications have gotten a little out of hand and we’ll continue
\nto do so. So since two thousand nineteen
\nninety eight and the Sewel convention, there’ve been two more Scotland bills
\nthat have further refined and further devolved certain powers to Scotland.
\nOne of those was in 2012 and the one in twenty sixteen,
\nwhich was really intended to forestall.
\nA Scottish revolt over Brexit. Which is why they did
\nit or they thought they were doing it. That bill actually actually
\nenshrines the social convention in law just the way I read it. Just what Lord Tootle said
\nis in the statute. So it’s still got that same aspirational kind of language
\nand but it now has statutory affect. Right. So in some
\nsense, the social convention is binding. Now, what does that mean?
\nWell, that’s what this case is about.
\nAnd I want to talk about this because I think we’re going to see a number of cases
\nthat are currently being litigated on the scope of the suit convention and whether
\nit can have any actual like real effect if it’s justiciable in a way
\nthat it can be enforced against anybody. Well, this case
\nare Miller v. secretary of state for exiting the European Union from last
\nyear. Twenty, seventeen. And let me just say what the Supreme Court
\nwas asked to decide and what they did decide.
\nThree things. There are three holdings, if you will, in this case. The first
\none, although the removal of the EU constraints on competence implied
\nby Brexit would alter the competence of the devolved institutions unless new
\nlegislative constraints were imposed. The u.k.’s relations with the EU already
\nreserved manner in the devolved legislatures have no competence in relation
\nto the withdrawal from the EU. That sounds pretty clear, right?
\nHe is Dyball is reserved matter, right? It’s parliament. We
\nhave parliamentary sovereignty. There’s no question that this whole convention can force
\nthe UK parliament to get the consent of the devolved legislatures
\nfor anything related to Brexit. That’s the position.
\nAnd that’s certainly the position of the UK government. That is not still right, an accepted position by
\nthe government of Scotland. The second holding in the case, there is no legal requirement
\nto obtain the consent of the devolved legislatures before notification of leaving the EU
\nwas given. Was given, right? So one
\nof the things Scotland argued was you can tell us you were going to do this.
\nRight. And it involves powers that have been devolved upon us and we want some say
\nin how you’re going to handle that. Well, they got the big back
\nof the hand from the U.K. government on that, as they have really since
\nthe boat ride. There’d been very little real discussion going between
\nthe devolved legislatures. Somewhat more with Wales, you know, on these kinds
\nof issues. The third.
\nThe third thing the judges said that I think is really important, and I’m going to quote
\nfrom the opinion, because this is judges being political.
\nJudge Hudspeth said judges would never be political, but
\nthey are right. But listen to what they said. They said judges, therefore,
\nare neither the parents nor the guardians of political conventions. That interesting
\nlanguage, parents or guardians of political conventions, they’re merely
\nobservers as such. They can recognize the operation
\nof a political convention in the context of designing a legal question. But they
\ncannot give legal rulings on its operation or scope because those matters are determined within the
\npolitical world. What the hell does that mean?
\nWell, we can give an opinion if it is, it has to do with a legal question. But
\nwouldn’t it always? Isn’t that very legal question we’re asking is whether that
\nsocial convention that’s in the Scotland Act of 2016 has application to
\ntrenching on the devolved powers of.
\nI thought that was the legal question that was being litigated in this case. Well,
\nthey go on to say as if that were not enough in reaching this
\nconclusion. We do not underestimate the importance of constitutional conventions,
\nsome of which play a fundamental role in their operation of our Constitution. Some do
\nsome, but not others. Like which ones?
\nThe civil convention has an important role in facilitating harmonious relationships between the UK Parliament,
\nthe Doyel legislatures. Well, it ain’t working, but the policing
\nof its scope and the manner of its operation does not lie within the constitutional remit of the
\njudiciary, which is to protect the rule of law. OK. So we have
\nI think I’m understanding this properly. I don’t.
\nYou know, no way represent that. I am. You have law, politics.
\nThere is some realm of law in some realm of politics. And judges know the
\nline between them when they see it. But they can’t tell you what it is. It
\ndepends on what the situation is and what kind of heat they’re
\ngetting and from. Right. I mean, this this is the this
\nis a very, very impressive punt of an issue for the
\nfuture, because they they did not establish a standard for determining when and
\nwhen, not right. To take account of a concert of an apparently very
\nimportant constitutional convention that is so important that it’s actually in the constitution.
\nIt’s in the law. Right. This is not a convention that’s unquantified. And so,
\nyou know, the fact that they’re going like this on that demonstrates to me not that the law
\nis settled and that you don’t have a problem, but that they really do have a problem and they realize this
\ndecision. Sango put the problem to rest. Right. It’s going to keep going because
\nonce again, it’s a political problem that continues to have legal implications.
\nRight. And so even though the upshot of this
\ncase seems to be that, well, the civil convention’s not really justiciable,
\nwe can’t really make a decision about that. And courts really can’t
\nenforce that against the UK government. Well, that’s that’s the outcome of that
\ndecision, I think. So that’s the real effect of it. But it does not appear
\nreally to have given us any clarity about the law, about the law or
\nwin the suit convention would actually be operative. If it’s not a dead letter
\nafter this case, and they were careful to say that it’s not because apparently harmonious
\nrelations are like constitutionally important or they wouldn’t have said so.
\nBut if they’re there, if they refuse to enforce it in order to promote harmonious relations, it
\ndoes seem to leave the door open for future problems here. It seems to me,
\nOK, here we are then. We’re in a position now after this case
\nin twenty seventeen where we seem to go, OK? Parliament
\ncan legislate for everybody. That’s a general rule. We seem all to agree to that,
\nthat the civil convention doesn’t require parliament to ask anybody’s permission. It
\nwants to legislate in areas of devolved competence, which we’ve already determined are is every area,
\nwhether it’s devolved or not. Right. And
\nwe can’t really go to court to force anybody to do anything. Certainly you can’t force parliament
\nto do it. And the judges are not willing to cross that line. And so here we are,
\nthe U.K. parliament. Right, should be now. OK, we’re good. We know
\nwhat our power is. We can exercise it. We don’t have to ask these pesky Scots or pesky
\nNorthern Irish what to do. And so full speed ahead, we’re going to
\nnegotiate with you. We’re gonna get a good Brexit deal. Right. Whatever
\nit is, we don’t have it yet. And Katy,
\nbar the door. We’re good. Well, guess what happens? Here comes twenty eighteen around.
\nThings are not going well for the Conservative Party. It’s having
\nfairly serious leadership problems. It’s got fairly serious
\nbackbench revolt going on against any give in the
\nposition on Brexit. And you’ve got a prime minister
\nwho called an election. That was one of the more brilliant calculations.
\nYou know, I got to thinking when I was looking at this. If this outfit
\nhad been in charge in 1940,
\nwe’d be there wouldn’t be a problem. I mean
\nthis anyway. I won’t get off on just my comment. You know, my feeling about
\nit. I mean, it it really is kind of just a parade of horribles like,
\nyou know, you can’t believe they they go from one enormous blunder to the next.
\nThey manage the public perception of this horribly. Right.
\nAnd there’s enough to go round that goes around the Scottish government. It goes all around.
\nIt’s all over. All of them. Right. Here comes twenty eighteen.
\nRight. OK.
\nLet me tell you what happens in Scotland in the spring of 2018, when we were all coming to the British study
\nseminar and enjoying all the lectures and teaching our classes and having a good time, there was all this stuff
\nhitting the fan over there and we’d see it, the paper and stuff and go, that’s quaint.
\nIn May of last of this year, just a few months ago, the Scottish
\nParliament voted by a fairly significant majority of ninety three to
\nthirty, just fairly big super majority to reject
\nthe government. The UK government’s Brexit legislation. You all saw this right? This was a
\npretty big deal or seemed to be. And
\nbut why did they do that? Well, the argument was.
\nThe deal, the Brexit bill of the government legislated in Scotland’s
\nsoul areas of competence. Wait, I thought we just resolved this.
\nDidn’t we just say that the civil convention doesn’t apply? They don’t have to ask. They have.
\nWhy did these M.P.s do this? The law was settled.
\nWhat’s going on? Well, the first minister, SNP leader,
\nshe has just taken the position. I don’t care what that court said.
\nI’m a political leader
\nthat doesn’t have anything to do with me.
\nI’m not only the leader of the government, I’m leaving my party. And, you know, SNP in Scotland
\nis by a pretty long shot. The biggest party. All right. It’s got,
\nyou know, a fairly hefty majority.
\nIn the Scottish Parliament, it’s lost a little recently,
\nbut the polls are showing it’s back up again. I think all of this sorted going up and down
\nthrough these caregiver sessions is kind of
\nright. Lifting SNP again, she says
\nScottish Parliament should approve any. Legislation
\nthat impinges on devolved competency. Which gives it a veto
\npower. Right. Well, and you know what? Theresa May said about that. Right. We can’t
\nlet Scotland, Wales, Northern Ireland get in our way
\nhere and have any kind of veto power over the Brexit
\ndeal itself. Now, what’s interesting, too,
\nprior to the vote, right, to reject the government’s
\nBrexit bill of ninety three to 30 vote, the Scottish Parliament had already passed
\na contingency bill, legislation that said if there is no deal.
\nRight. How are we going to handle Brexit? How is Scotland
\ngoing to handle Brexit? That bill got passed. Right. Earlier in the spring
\nand is out there on the books. At least for now,
\nthat Bill has been challenged in the Supreme Court by the
\nUK government. And here we go again. We’re having
\nan argument in a court over whether that bill, whether the Scottish
\ngovernment has the power to do that. And that decision has not been made yet.
\nThat is still pending. And so we don’t know yet. I think I probably do know
\nhow that court might rule on this. Wait a minute. Wait a minute. Know
\nno, we can’t have conflicting bills out there about Brexit. We’ve got to have one.
\nAnd they’ll find a way probably to try to pour oil on the political
\nwaters. But I don’t think there’s no evidence that the Scottish government is going to accept that either.
\nRight. So what we have now is kind of the difference between a political crisis
\nand a legal gray, a legal crisis. We don’t think we know what the law probably is,
\nbut we’re also in a political posture where it might not matter that much what the law is.
\nThat’s trouble. You don’t like to have that happen. Do we?
\nParticularly in a government of laws that we think Anglo American kind of system is
\nthat everyone pretty much takes what a court says. Right, as the law
\nof the land that we accept that that we deferred to it, even if we don’t like it, that we really don’t
\ndecide there is another tribunal that we can appeal to. But
\nI think right now feelings are so hard on both sides of this debate
\nthat we may be creating a political crisis that even though it doesn’t
\nitself threaten the constitution like in a legal sense.
\nDoesn’t change the constitutional principles. It may create conditions where
\nthose might be changed. Now, is
\nit. Is it possible that now we’ve seen this story before, haven’t
\nwe? A little bit different context, look, different time, little different level of violence,
\ncertainly in the Irish case.
\nHow how did Ireland get out of the union?
\nA treaty, right? We all know this. OK. That sounds
\ngood. Who is the treaty between?
\nThere was no sovereign Irish government that was recognized by anybody, certainly
\nnot my parliament or the prime minister, anybody else. Fact Lord George said,
\nI talk and deal in any kind of capacity that recognizes you as sovereign
\nor plenipotentiary in any way.
\nHow do you make a treaty with guys from Ireland
\nif you let the Irish? How did I do?
\nSure does a good job. You’ll go off on it. I will leave you. You’ve convinced us yet.
\nBut there was never really a resolution of the issue, and I don’t
\nthink many people talked about it. How’s it constitutional? Right? Well, it got ratified when
\nparliament ratified the treaty. Right. Well, parliamentary sovereignty.
\nParliament acted. It passed a law to ratify the treaty. Therefore, it cured whatever
\nirregularities existed in the actual conclusion of the treaty. So
\nit was a back door way. Right. Of getting the result
\nand kind of going around the constitutional issue of the legitimacy of the treaty to begin with.
\nThey had to cure that, which they did probably very wisely.
\nNow, what I’m thinking here is what if this MP. Right.
\nContinues down this line? We don’t know this. We don’t know this. Right. We
\ndon’t know really much about the outcome. We
\ndon’t know what kind of Brexit it’s going to be. We really know. Really good idea of what the economic
\nconsequences of this will be. The Scottish government has issued
\nits own report on the effect of Brexit on its economy.
\nIt’s pretty severe. It’s in in in terms of the
\ncomparative effects on the other parts of the UK. It’s worse.
\nThe reasons for that, it’s the particular kinds of products that Scotland exports
\nand makes. The UK government has been notoriously
\nslippery about trying it, about identifying what it thinks
\nthe economic effects of Brexit are going to be. Has it really released anything
\ndefinitive on that and has kept a lot of it confidential? So we’re not really sure
\nwhat the UK government really thinks. The only thing that they seem to be saying on a consistent basis,
\nyou’ll hear David Mondale lose the Scottish secretary, stand up and say this kind of
\nas a mantra. There’s, um. There are not arguments here, by the
\nway. If you listen to the debates in parliament, they’re not really they’re not
\nmaking arguments to each other. They’re making slogans. It’s just
\nlike our own political debate now. Right. And nobody’s
\nlistening. They’ve gotten to a point where all they do is kind of repeat, repeat, repeat.
\nAnd the things they repeat are on the Scottish side. Right.
\nThe Scottish vote on the Brexit referendum should be
\nrespected, that the Scottish people are sovereign. They voted
\nto stay. And you can’t take a south this way without at least
\nasking us what we think and involving us in the negotiations.
\nAnd there are variations in that position. Some are harder, some are softer on the other side.
\nThe UK government’s mantra argument is Scotland voted
\nto remain in the UK in 2014. And it doesn’t matter
\nhow Scots feel about Brexit because they already voted
\nto stay in the UK and the UK is leaving Europe. And
\nthat’s the deal, right? The mantra of response to that
\nis but. You didn’t tell us
\nyou were going to leave the EU. And in fact, right. You represented
\nthat one of the reasons people should vote to remain was that you get to stay in the EU.
\nRight. And so it’s the old bait and switch.
\nRight. You’ve got Nigel Farage going over there. That’s right. Did
\nany of you heard the term Project Fear, thereby heard that? That’s kind of. Yeah, you have what
\nproject Fear originated in the independence referendum to try to frighten
\npeople to vote against independence, basing it based on, oh, my God, you’re gonna lose the pound and your
\npensions are gonna go away. And, you know, my God, you know, the US will take you
\nover or whatever. Right. Well, the Project Fear effort
\nhas been revived for Brexit in this kind of very
\nstrange way. The Conservatives are actually doing it again to try to leverage.
\nRight. Their own hard liners into making a deal.
\nBy in some people’s opinions overblowing the effect
\nof Brexit on the English economy, then thereby forcing the back benchers for a more reasonable
\nposition. It’s a very strange inter intra party
\nsituation. It’s not talk until the Labor Party and it’s sir
\nnot talking to any of the devolved parties either. It’s it’s in the Conservative
\nParty now. A larger concern, I think, here.
\nIs that. The question of the union and the
\ncontinuation of the union is becoming much more strongly identified
\nwith the Conservative Party, and you’ll see this both with the
\nrelatively small number of Scottish conservatives who are in Parliament
\nand in the Scottish Parliament. But also it’s definitely
\ntrue south of the Tweed, it where the Conservatives now are the Unionist Party
\nand Labor is somewhere out there may be willing to do more deep devolution
\nor, you know, their variations in the labor position. And then you have the you know,
\nthe radical fringe, the SNP, Nationalists and SNP is
\nnow being termed a nationalist party, which is a pejorative
\nway of talking about this MP. Even though I always go well, it is called the Scottish National Party.
\nThey’ve never hidden the fact that there are a national party right now. Oh, my God. Nationalism
\nright by its own national is bad. Bad. That’s what’s happening in Europe. That’s what’s happening in the US.
\nSo you’re getting this kind of weird Trump effect where the SNP is actually being accused
\nof being part of this nativist kind of rise in Europe, when really what the
\nScots are saying is, no, we want to we want to stay in Europe,
\ndon’t we? We’re not the ones who want to lead. Oh, you know, you’re this native Smith.
\nWait a minute. No, that’s the English who are that way. You see, what’s
\nhappening is the parties are yanking the tail of this thing.
\nAnd kind of trying to hang onto it is it’s trying to fight like crazy
\nto get away from. And it’s become entirely
\na party issue. And so what Theresa May is trying to do is how do
\nI get out of it? I do. I do give her some credit for trying to do there.
\nAnd in fact, she was up in Scotland a couple of weeks ago making nice with Nicola Sturgeon
\nin the U.K. government, invested a bunch of money in Scottish universities and
\njob, you know, economic development and stuff. I mean, you know, to show, you know,
\nwe’re not the big assholes you think we are, right? I mean, it was a real nice gesture
\nto, I think, try to smooth some of this over. Well, it’s not working. On
\nJuly 4th of this year, while we were all over here eating hotdogs
\nand watching fireworks, there was a debate in parliament. It was opposition day in
\nparliament. And this is really worth your time if you’re at all interested in the issue
\nstarts at about three forty five in the afternoon. Long day goes from like 10:00 in the morning,
\nnot, you know, 10:00 at night. I mean, there’s a long sitting like they love to do
\nand it’s opposition day. And the question for opposition day, which was mooted by this MP,
\nmembers of the British parliament was. Scottish claim of a right.
\nI was going, oh, Paul, you’ll love this. This is sixteen eighty nine style
\nScottish claim up, right, that the Scottish people are sovereign. That’s the question.
\nThey’re going to debate that. Well, for the next I know four or five hours
\nthere’s this debate and it’s not a heavily attended
\ndebate, which many of the pieces note you should see
\nthis. It is like a kindergarten class. These people
\nare no more interested in what each other has to say. They are you know, they’re telling each other to sit
\ndown and shut up. They are? Yeah. You’re just gone. The whole decorum of the House of Commons.
\nWhat is going on here? And the speaker is up there trying to, you know, humorously
\nkind of manage this and mediate it. It is a complete disaster area
\nand you’re gone. This is what the greatest deliberative body in the world. And they
\ncan’t even hold a reasonable kind of discussion about the, you know, the nature of the kind
\nof political sovereignty. Right. They weren’t discussing where the parliament is sovereign. They were discussing whether
\nScottish people. Right. Who expressed an opinion in a referendum
\nin a lawful manner, a fairly strong opinion, whether they ought to be listened
\nto or not and what manner what procedure they should be. And it it you
\nknow. And ultimately, guess what? How did they vote? They voted
\nyes. Scottish people are sovereign, right? So we got I mean, you just go
\nthey always sound and and they’ll go. And you’re just going,
\nyou know. What was that all about? It’s I mean, it’s
\nfunny in a way, but it’s also a problem. And however you stand
\non the issue, whether you like small nations, whether you like.
\nYou know, self-determination at. Some smaller
\nlevel than the entire UK. Or whether you don’t.
\nThis is going to. This is not going away, and that’s my major kind of leave for
\nyou, is that this is going to go on. It’s going to be litigated, certainly. Either way.
\nBut I do think that eventually there will be another Scottish referendum
\non independence eventually. It might not be anytime real soon
\nbecause I think what’s going to happen if we do get a hard Brexit and, you know, you never
\nknow what rabbits they’re going to pull out of the hat at the last minute on this and
\nthey might get a reasonable deal or they might get it kind of a bridge arrangement. You know, Scotland’s
\nposition has been we want to be in. The free trade. We want to be
\nin the Trade and Customs Union. That’s been the Scottish position consistently, either
\nwithin the UK or outside the UK. And Michael Russell,
\nwho is the Scottish Brexit secretary, I’ve actually met him at a British scholars conference
\nin Edinburgh a few years ago. He’s running around Europe right now saying,
\nyou know, there is going to be a referendum. And Scotland. And
\nhe is representing the EU would allow Scotland in as a member state. Once
\nit’s a state, they can join me. He’s saying that today.
\nAnd which indicates to me, you know, one, he’s been a very brave face on kind of a difficult situation.
\nI don’t know if he really believes that. But don’t forget, this is the S&Ps
\nparty manifesto to do this and they
\nhaven’t changed that. And in fact, they’re doubling down. And eventually
\nthey’re going to have to do it if they want to hold on to any kind of credibility in Scotland
\nor legitimacy as a party. And I think what you’re going to see is breaks.
\nIt’s going to happen. It’s going to happen in a messy
\ndivorce manner, all divorces are messy. I don’t know why David Cameron did think of this.
\nIt’s going to be a mess. It’s going to have some unforeseen economic consequences. Even though Scotland
\nexports probably four times more products to the UK as it does to Europe,
\nit still exports about a fifth of its entire GDP to
\nEurope. You can’t take that. The English market is not going to expand
\nby 20 percent to accept all the Scottish exports that are at risk. It’s not.
\nAnd if you lose even some part of that, it is going to cause massive
\nunemployment in Scotland. People are going to leave the country. It’s going to
\nkill. That is going to hurt the tax base is going to hurt the services the Scots want, which is the NHS,
\nthe university’s education system. These things are important to the Scots. I mean, S&P,
\nthat’s what they run on. That’s why they want these powers. Right. And so
\nthis is going to be a problem. And I think if things go real hard on Scotland out of Brexit,
\nyou’re going to see a referendum probably sooner than later in the next few years. Don’t know
\nhow it’ll come out, but we
\nin our lifetime, we could see the end of this. And I think it’s a real possibility. Maybe
\nnot a likelihood. But after 2014, I was going, well, it won’t happen again. Another jet
\nfor another generation at least. I don’t think betting more so with that, I’m
\ngoing to stop. It’s just my opinion.<\/p>\n"},"episode_featured_image":false,"episode_player_image":"https:\/\/podcasts.la.utexas.edu\/british-studies-lecture-series\/wp-content\/uploads\/sites\/4\/2017\/09\/british-studies.png","download_link":"https:\/\/podcasts.la.utexas.edu\/british-studies-lecture-series\/podcast-download\/57\/scotland-and-brexit.mp3","player_link":"https:\/\/podcasts.la.utexas.edu\/british-studies-lecture-series\/podcast-player\/57\/scotland-and-brexit.mp3","audio_player":"https:\/\/podcasts.la.utexas.edu\/british-studies-lecture-series\/podcast-player\/57\/scotland-and-brexit.mp3<\/a><\/audio>","episode_data":{"playerMode":"dark","subscribeUrls":[],"rssFeedUrl":"https:\/\/podcasts.la.utexas.edu\/british-studies-lecture-series\/feed\/podcast\/bsls","embedCode":"

Scotland and Brexit<\/a><\/blockquote>