The Scottish government has published a detailed policy paper setting out options for how Scotland could remain in the single market following Brexit. Jim Gallagher argues that the paper, which focuses on options that would involve Scotland remaining part of the UK, suggests that Nicola Sturgeon would rather avoid a second independence referendum. The First Minister may instead be edging towards a confederal solution that the majority of Scots might sign up for.

The publication of the Scottish government’s policy paper on Brexit, Scotland’s Place in Europe, may signal something of a change in tone from the SNP leadership. Reading it, one can only conclude that last thing Nicola Sturgeon wants is an independence referendum.

Certainly Sturgeon’s tone contrasts with the noises off from Alex Salmond, who has been energetically laying the groundwork for a rerun of 2014, or some of Scottish government Brexit minister Mike Russell’s earlier rhetoric. It is still possible to conclude from the paper and the logic of the SNP’s argument that, if they don’t get the concessions they hope, then they will be demanding another independence referendum. But the big message from the paper and its presentation is not bullying language about when a referendum might be called: it is that the SNP don’t think leaving the EU justifies repeating the independence poll at all. Instead they are setting out ways the UK can leave the EU without one. Can the UK stay in or near the single market, or at least can Scotland? If it can the UK leaves the EU, but the SNP won’t find themselves demanding ‘indyref2’.

Responses from Unionists

Opponents of independence can respond in different ways. It’s easy enough to mock. Many, supporters and opponents alike, will say it’s fear. Maybe fear of losing – two-thirds of voters don’t want yet another poll, and independence support is where it was in 2014. Around 400,000 nationalists seem to dislike the EU as much as the UK and might not vote to leave the UK just to join the EU again. So despite what Alex Salmond says, the prospects of another referendum are not hopeful for the SNP and a second defeat would surely be fatal to the cause.

Others will say it’s fear of winning: senior nationalists know they don’t have an economic plan. The takeaway message from the 2014 campaign was that the economics of independence were unsustainable. They have got much worse since, and Brexit adds a scary new dimension of uncertainty. Without a wholly new economic vision, all they have to offer is a plan everyone knows won’t work. Influential figures in the nationalist movement have been arguing this.

Others still prefer to see nationalists as Bertie Wooster saw aunts – ‘It is no use telling me that there are bad aunts and good aunts. At the core, they are all alike. Sooner or later, out pops the cloven hoof.’ They detect only maneuvering towards another referendum sometime in the next few years.

Searching for a sustainable solution?

There is perhaps some truth in all these responses. The SNP want to keep their options open and the contradictory messages are the result. But despite the noises off, it might be that in her own way Nicola Sturgeon is searching about for a sustainable solution for Scotland inside a post-Brexit UK. She hasn’t lost her faith, but independence is for another day.

Some on the pro-UK side of the argument want to encourage the cautious, pragmatic streak in the First Minister. It may help her avoid painting herself into the corner of a referendum she doesn’t really want. More important, it might just move Scottish constitutional debate away from the constant question of rerunning 2014 and onto looking for way in which most Scots can be content with the constitutional arrangements.

Certainly, as I have argued elsewhere Sturgeon is right to argue the UK should keep as close as possible to the EU single market. It is looking increasingly as if she might just get her way, at least to start with. As the Brexiteers in the UK cabinet continue to fantasise about the world of their imagination, pragmatists like the Chancellor of the Exchequer, Philip Hammond, are stepping forward. They understand the reality of deal-making with 27 increasingly impatient member states. They hear business calling out the economic self-harm from putting up barriers to the UK’s largest market. It has become clearer in the last ten days what is potentially on the cards: a transitional period, inside the Customs Union with single market access in some form. With it will inevitably come freedom of movement.

A special deal?

Sturgeon is also arguing for a special European deal for Scotland within the UK. Her idea is that Scotland should remain in the single market even if the UK leaves. Despite some detailed argument in the paper about the position of Liechtenstein and the Channel Islands, that specific proposition is simply not practical, for business or anyone else, as the Scottish government must realise. Their own advisors say so. The single market is a bundle of rules regulating goods and services. Where those rules apply both can be traded freely: where they end, they can’t, and there is a barrier to trade. Putting that barrier at Berwick would mean economic separation from the UK. England would be a different market from Scotland, and Scottish trade, and jobs, would inevitably suffer. UK trade matters much more for Scotland’s economy than EU trade.

That plan won’t work, and it would be a mistake for Sturgeon to make it a hard test for Theresa May to fail, because there are other ways to recognise Scotland’s difference that will work. Brexit inevitably makes Holyrood much more powerful. It will negotiate as an equal with Westminster on things like agriculture and fisheries. The internal balance of the UK will be shifted.

It can shift more. There is no reason to deny Holyrood the power to negotiate with Brussels too – on all devolved matters. Devolution means Scotland can make different choices over things that don’t have to be reserved to Westminster. Why shouldn’t it be able to agree, say, reciprocal health deals with European countries, or access to EU studentships for young people?

Similarly, if the UK ever does move to a system of work permits to control migration, permits to live and work north of the border could be issued in Edinburgh – and the same for Belfast, or London.

The Scottish government know these possibilities exist. Indeed they go out of their way in the paper to acknowledge them – and even to source them to Gordon Brown. Interestingly, by journalistic accounts, repeating referendum rhetoric has had a formulaic air to it. Their priority instead should be helping UK ministers understand that a special Scottish relationship with Europe is not just possible, but an opportunity to refashion the Scotland-UK relationship for the better. Those who want Scotland to stay in the UK should do the same. So far, Theresa May is in listening mode only.

Confederating the UK?

Changes like these will profoundly alter the nature of the UK, making it more differentiated, or, as I prefer, more confederal. In truth, that’s the constitutional deal the vast majority in Scotland actually want as surveys have repeatedly shown. More independence, but not complete separation; economic and social solidarity, but the scope to make quite different choices, even over things as important as European relationships. At heart, one wonders, do SNP leaders want this too? Their vision of independence last time round had more unions than the TUC – whether the monarchy, the currency or even some of the BBC. Nobody planned it this way, but Brexit makes that paradoxical phrase ‘independence inside the UK’ more plausible than it was in 2014.

So when the First Minister puts another referendum at the end of the queue of options, she disappoints her fundamentalist supporters. Hence the noises off. Maybe, like Theresa May, she’s gradually realising that what party zealots want and the country needs are not the same. So perhaps her opponents should not be mocking her political incoherence, but encouraging her to edge closer towards a solution the majority of Scots might sign up for.

A shorter version of this post was published in The Times previously (£). It first appeared at the UCL Constitution Unit blog.

Jim Gallagher is an Associate Member of Nuffield College, Oxford, visiting Professor of Government at Glasgow University and sits on the advisory board of Scotland in Union. He was Director-General, Devolution Strategy, at the Cabinet Office from 2007 to 2010. He tweets @ProfJimG.