Friday, October 26, 2012

A few harsh facts of life on an independent Scotland's EU membership

Of all the weeks for Willie Rennie not to have a question at FMQs, this was probably the worst. While Johann Lamont and, particularly, Ruth Davidson gave Salmond just enough wiggle room over the bizarre EU legal advice issue, Willie had displayed a much more forensic approach on Tuesday. Here's the latter part of the exchange. 
This is a very serious matter, Presiding Officer, because the First Minister has not cleared up the issue. He said,
“Everything that we have said is consistent with the legal advice we have received.”
He said “received”, and the context was that he was talking about the law officers. The First Minister has not cleared up the matter. I urge him to come forward and clarify exactly what he said, because he has not done so, so far.

The Presiding Officer: First Minister, if you wish, you can make a further brief comment.

The First Minister: I admit that Willie Rennie did not add some of the descriptions that other people have used, but it is not a good idea for him to miss out the phrases 
“in terms of the debate”
“Well you could read that in the documents that we’ve put forward, which argue the position that we’d be successful.”

As I have pointed out, all the documents that I have listed were underpinned by legal advice from our law officers. That is different from the specific legal advice on a specific matter that the Deputy First Minister announced to members this afternoon. Any fair-minded person—I am aware that that excludes a number of people—would consider that the matter has been well and truly cleared up by the full transcript of the interview.
I think what Willie has successfully done is to show that Salmond and the SNP have gone out of their way to create the impression that there was some legal basis, based on current legal advice from proper Government law officers. While Salmond can dissect the actual words he used to get himself off the hook, there's no doubt that the ordinary Scot, watching that interview in March, would have thought they had that advice. That is the crucial point. Whether the Ministerial Code has been breached is pretty much irrelevant. It is more of an irritation that Salmond was prepared to blow our hard earned taxes taking the Information Commissioner to court so he could keep the lack of legal advice secret. If this sort of situation arises again, I could recommend that he picks up the phone and speaks to Eilish Angiolini or Frank Mulholland and asks them nicely for their permission to reveal the truth.

Labour have handled this really badly. Their own record, of course, on legal advice, is not exactly squeaky perfect. I'm sure we can all remember dramas over the Iraq War, after all. By using the "lie" word in this instance, they've given Salmond something to throw back at them. This needs to be about the overall strategy of the SNP and the fact that they tried to create an impression of something that was not the case and give themselves enough space to suggest that other people might have misunderstood them. It's pretty sleekit, when you come to think about it, and has left a massive hole in Salmond's credibility. People must not be allowed to forget this.

Ultimately, though, the question of the terms of an independent Scotland's entry into the EU owes as much to realpolitik as the letter of the law. How do we know? Well, it's been looked into before. David Clark was Robin Cook's Special Adviser between 1997 and 2001 and he has written on his blog, Shifting Grounds, about the advice on the issue that was obtained then.

In summary, Scotland would have no automatic right to be admitted to the European Union as a successor state, although it is possible that it could be negotiated. The price, however, might be substantial?

First, there is no existing procedure for handling a breakaway from an EU member state. The Council of Ministers would therefore need to improvise one according to its own design.
Second, an independent Scotland could either be considered a successor state, inheriting the United Kingdom’s rights and status, or a new applicant, but would have no automatic right to the former. A political decision would have to be taken by the Council of Ministers acting unanimously.
So, one veto and we're scuppered.

Clark's analysis of  the likely negotiating process makes it sound a bit like trying to herd 27 cats each with its own unique cocktail of sour grapes and self interest. He argues that an independent Scotland would not be negotiating from a position of strength.

I personally have no doubt that Scotland would be allowed to join the EU. But I also have no doubt that the price would be a high one. Spain would be the first country to object to Scotland automatically inheriting the UK’s rights and status. It would be determined to prove that separatism doesn’t pay in order to deter its own secessionist movements in Catalonia and the Basque country. Other countries, similarly concerned to avoid any precedent that might compromise their own integrity, would be certain to support the Spanish position.
They would also be joined by a larger group of countries that have long resented the UK’s opt outs and budget rebate and would relish the opportunity to deny them to Scotland. Like a new applicant, they would insist on Scotland accepting the full range of EU obligations on things like the single currency, border controls and budget contributions.

You will have to read the article yourself to see his rather surprising conclusion. Even if Alex Salmond were prepared to sell out to that extent, keeping his party and a fair chunk of those who support independence behind him would be a challenge. Of course, he wouldn't have to declare his hand until after the vote, but I'm sure that won't stop people asking him the question before then.


Richard T said...

My take on this was that the SNP Government had taken legal advice and their reluctance to release it was because it didn't back up their position. In common with many others, perhaps lazily, I did not assume that no advice had been sought. I was clearly giving the government more credit than it was due as I could not believe they would be so stupid as to pretend they had advice when in truth they did not.

Could nemesis at last be catching up with Salmond's hubris?

Unknown said...

Richard, it had never occurred to me either that they hadn't sought the legal advice. The whole thing is just incredible.

Alex Salmond has a massive hole in his credibility now.

Richard Thomson said...

In a spirit of fairness and consistency, will Michael Moore now publish the legal advice held - if any - by the Scotland Office on the same topic?

I can fully understand why the Westminster Government has decided not to publish whether it does or doesn't hold any advice, in line with the approach taken by the Scottish Government. Nevertheless, their stance doesn't do a great deal for the credibility of Mr Rennie on this matter, does it?

I'd be tempted to say that it leaves a great big hole in Mr Rennie's credibility, but that would assume that he had started out with some to begin with.

Munguin said...

Would the Lib Dems ever lead people to believe something in order to gain some ethereal advantage (such as get people to vote for them)? Well yes of course they do! Bu,t like their cohorts, the Tories, they simply adopt the “tell a blatant lie about it” angle to con the people and then renege on it later on. If that goes down like a lead balloon then: issue a cringing apology that you ever made the promise in the first place and not that you broke. Sound familiar Caron?

And the reason that Willie Rennie never got to ask a question is because he is simply another back bench MSP, like all the rest and is not entitled to ask a question every week. Perhaps if Willie and the rest of the Lib Dems had left themselves some “wriggle room” when they signed pledges all over the place then they might not have lost the confidence of the entire UK electorate and now be facing oblivion. It also does not help if both the leader of the Labour and Conservative parties wish to spend most of the half hour available attempting to score political points and reading out lengthy and pointless manifestos intended to make themselves look more intelligent than Alex and always failing to do so. I wonder why?

Dubbieside said...

After the tuition fees pledges that were signed by the lost deposit party none of them have any credibility.

cynicalHighlander said...

Scottish independence: Law officers 'approved EU documents'

Law officers read and approved official documents claiming an independent Scotland would remain in the EU, the Scottish government has confirmed.


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