‘Soft’ Brexit is No Panacea: Why the Scottish Government Should Lead on Halting Brexit

Kirsty Hughes | 7 January 2018

© 2017 Kirsty Hughes

The Scottish National Party (SNP) has called a cross-party summit at Westminster for 8 January to strengthen efforts for a ‘soft’ Brexit of staying in the EU’s single market and customs union. Predictably, Labour’s leader Jeremy Corbyn has said he will not attend, while curiously expressing his view that the EU’s single market is not a club (this will be news to members of the European Union and the European Economic Area).

But as political efforts to push for a ‘soft’ Brexit gear up, is this really the best we can hope for – and is it likely? There has been a consistent, if small, majority for ‘Remain’ in opinion polls for the last six months, while in Scotland support for Remain has now hit 68%. Yet aside from the Lib Dems, call for a second EU referendum on the Brexit deal – with a choice of staying in the EU – there is no political lead across the opposition parties to halt Brexit.

Scottish government prioritises ‘soft’ Brexit over no Brexit

The SNP has a mixture of Brexit/EU policies. It opposes, in principle, the UK leaving the EU. It would like, as a compromise, a ‘soft’ Brexit. Eventually, it would like independence in the EU. It would also like, as an alternative compromise, Scotland to stay in the EU’s single market, even if the rest of the UK leaves (while staying in the UK).

Nicola Sturgeon has said that: ‘The Scottish government will continue to oppose Brexit in principle and, in practice, we will resist as fiercely as possible the Tories’ plans for an extreme Brexit, outside the single market and customs union.’ But in practice, the Scottish government and SNP are indeed mainly focused on a ‘soft’ Brexit, not on campaigning to halt Brexit.

If the SNP genuinely still opposes Brexit, then surely it needs a clear and public strategy to halt Brexit. One such strategy would involve arguing the case for a second EU referendum. It is hard to imagine a democratically-acceptable way of reversing Brexit that doesn’t give the public another say. Some argue that could be done through a vote at Westminster and a general election – perhaps, but it would be more controversial.

The Lib Dems are clear that halting Brexit should happen through a second EU referendum. But the SNP’s approach to halting Brexit for the UK is, for now, entirely unclear. In July 2016, Nicola Sturgeon set out five key interests or red lines that she wanted in order to protect Scotland’s interests in the face of Brexit: democracy, economic prosperity, social protection, solidarity and influence. But ‘soft’ Brexit does not protect most of these, so the policy has apparently shifted.

Last autumn, Sturgeon said that a second EU referendum was increasingly hard to resist – but so far has not backed one. If the SNP is serious about opposing Brexit, surely it should set out the route by which that could happen. Instead the focus is on campaigning for a ‘soft’ Brexit.

Is a ‘soft’ Brexit likely or sensible?

Where we are now: Theresa May has said repeatedly that the UK will leave both the EU’s single market and the customs union. This is also stated in the UK-European Commission joint report that set out progress on phase 1 of the Brexit talks. On the basis of that report, the EU27’s December summit agreed talks could move on, firstly to transition and then, in March or April, to trade and the wider relationship.

Theresa May is expected to set out more details of the government’s approach to a future UK-EU27 trade relationship in late January or February. Indeed, the EU27 have called on the UK to do that before they issue their own guidelines on trade at their 22 March summit. Before then, talks will start on transition. Transition talks will not be straightforward – with rows anticipated on issues from rights for EU citizens who come to the UK during transition, to whether Gibraltar is included in transition, to the crucial question of whether a short two-year or less transition (which both the EU and UK government currently support) could be extended.

The UK government has not been at all clear on what sort of ‘deep and special’ trade deal it does want with the EU. But its thinking appears to rest on the idea that the UK can retain better access to the EU’s single market than other third countries (like Canada) while, at the same time, UK regulations diverge from EU ones in a number of sectors (as May set out in her Florence speech in September). For the EU, this is cherry-picking and it is hard to conceive of any trade deal where the EU27 will accept such regulatory divergence while giving better access than other third countries. Consequently, the UK appears to be heading for a hard, Canada-style trade deal (with a wider relationship on security, police cooperation and other forms of cooperation, including quite likely on research and innovation).

Forcing a ‘soft’ Brexit: Could there be the numbers at Westminster to force a ‘soft’ Brexit of staying in the EU’s single market and customs union on the government? This might just be conceivable, if Labour backed it along with sufficient Tory rebels. But currently Labour does not back such a ‘Norway-plus’ strategy – its policy of deliberate ambiguity suggesting, like the Tories in many ways, that there is a special, UK-specific, ‘cake and eat’ it way of being almost in the single market and customs union without following all the relevant rules (not least on free movement of people).

Even if Labour changed its position, it would still be a close vote. Opposition parties and Tory rebels did inflict a defeat on the government in December over a meaningful vote on a final deal – by 309 to 305 votes. But this partly succeeded as most Labour pro-Brexit rebels were persuaded not to vote with the government on that one. So how the numbers would stack up on a ‘soft’ Brexit vote, if Corbyn shifted, is unclear – both in terms of Tory and Labour rebels.

If ‘soft’ Brexit won the day, that could make the government’s position untenable – an election might result. Would the opposition parties then go into that election campaigning on a ‘soft’ Brexit rather than to halt Brexit? That would be one crunch question for Labour, SNP, Lib Dems, Greens and Plaid Cymru alike.

Northern Ireland to the rescue? Some think that the commitments the UK government has given to avoiding a hard border between Northern Ireland and the Republic of Ireland mean that the UK will simply end up in a ‘soft’ Brexit – perhaps somewhat fudged (assuming the EU27 will go along with a fudge) so that it doesn’t look exactly like EEA plus customs union. But the UK-EU27 phase one agreement kicked the can down the road on that. The UK will first argue for a ‘regulatory divergence’ deal that allows a soft border. That is likely to be rejected by the EU27, but in that case the UK has said it will propose ‘specific solutions’ for the Irish border (which could include various types of differentiation, technology, exemptions and more).

If that doesn’t work, then the UK has promised ‘full alignment’ in areas of the EU’s single market and customs union ‘which, now or in the future, support North-South cooperation, the all-island economy and the protection of the 1998 Agreement’. For the UK government, that does not appear to mean identical regulations in all sectors – rather, it can be interpreted as meaning cherry-picking with regulations the same in some (relevant) sectors, similar in others and different in others. There is likely to be a major clash in the Brexit trade talks over this by April or May. Where any compromise may end up is unclear. It is a circle that cannot be squared with all the commitments in the joint report. What it does not mean is that the only likely or logical outcome is a full ‘soft’ Brexit.

‘Soft’ Brexit or staying in the EU?

In the face of the UK government’s determination to negotiate a hard Brexit, outside the single market and customs union, why then are the SNP and some Labour rebels tying their colours to the ‘soft’ Brexit mast rather than to a campaign to halt Brexit?

Some think that being in the single market and customs union together (something no other country has done so far) would be almost as good as being in the EU, while respecting the result of the EU referendum.

But there are numerous, serious drawbacks to a ‘soft’ Brexit compared to staying in the EU. The UK would move from its current position of having a full democratic voice and vote in the EU – through its position in the European Council, the Council of Ministers and the European Parliament – to having no vote, and little voice. In Norway, this has been labelled a major democratic deficit.

Yet the UK’s democratic deficit would be much bigger since, it would also become a passive bystander in EU trade talks. If the UK – like Turkey – was in a customs union with the EU, it would have to apply EU negotiated tariffs from all EU trade deals. But it would have then to negotiate its own access to those third countries’ markets – with no bargaining power or clout to do this.

Eurosceptic criticism of the imposition of rules from Brussels would surely redouble. Instead of the UK being an influential voice (with a vote) in future regulations – from chemicals to financial services, from anti-discrimination laws to digital services – the UK would simply have to take on those regulations. And, with the UK not in the room, some of those trade and regulatory decisions would certainly go against UK economic and social interests from time to time.

Some argue that at least the UK could benefit from being outside the EU’s common agricultural and common fisheries policies. But the idea that the EU27 will allow the UK to be in its single market and in a customs union, but without clear deals on agriculture trade and access to fishing waters, is pie in the sky (or, as one Brussels commentator put it, ‘no access to markets without access to waters’).

As long as there is some UK-EU27 deal, there will surely be wider aspects to it that cover foreign policy, security and anti-terrorism cooperation. But no strategic summits or bilateral cooperation will begin to mimic, or have the depth and breadth of, the existing range of interaction and coordination on issues ranging from sanctions on Russia to the EU’s position in global climate change talks. Again, voice, influence, vote would all have been given up.

And, finally, would such a ‘soft’ Brexit be sustainable? Surely, the half of the UK population (and over two-thirds of Scotland’s population) that currently favour Remain would argue over time to end the democratic deficit and regain the UK’s influence, vote and voice?

But that might not be possible. If the UK tries to rejoin the EU having left, it will, for sure, not get its budget rebate back. And it would be unlikely to get back its ‘opt-in’ on justice and home affairs issues, and perhaps not even its single currency opt-out. Would the UK rejoin on those terms? And, for ‘Leave’ voters, being a full part of the single market’s four freedoms and a passive taker of EU trade policy may not look at all like Brexit.

Halting Brexit

‘Soft’ Brexit is a misnomer. ‘Soft’ Brexit is not democratic, not sustainable and would substantially reduce UK influence. Moving from EU membership to a situation where the UK loses a vote or real voice in crucial decisions affecting so many dimensions of its economy and society is anything but ‘soft’. The EU27 are bound, at some points, to take decisions – on regulations, on trade – that are not in the UK’s interests. The UK will have become a ‘rule-taker’ – democracy will be the loser.

Nicola Sturgeon’s five tests or red lines from July 2016 still have considerable force: democracy, economic prosperity, social protection, solidarity and influence. In a ‘soft’ Brexit, democracy and influence are kicked to one side. Economic prosperity and social protection may remain – but less so than when the UK could initiate proposals and strategies, vote and fully participate in the EU.

And solidarity is lost too. Leaving the EU is an extraordinary repudiation of European solidarity by the UK. In the midst of so many big challenges – from migration and refugees, to authoritarianism, violence and instability around the EU’s borders, to climate change – the UK has chosen inward-looking insularity. That would still be the case with a ‘soft’ Brexit.

2018 is the year that the chance for halting Brexit will be won or lost. But politics matters. And if neither the SNP nor Labour will lead on halting Brexit, then grassroots pressure alone won’t do it. In that case, the UK will leave the EU – most likely in a hard Brexit or perhaps in a weak, powerless, undemocratic, unsustainable ‘soft’ Brexit. Is that really what the Scottish government wants? Surely a better strategy would be to dig out Nicola Sturgeon’s five red lines and really stand up for them – by campaigning to halt Brexit.

Kirsty HughesKirsty Hughes | Twitter

Scottish Centre on European Relations

Dr Kirsty Hughes is Director of the Scottish Centre on European Relations. She is a researcher, writer and commentator on European politics and policy, and she previously worked for a number of leading European think tanks.