Alf Young: Pillars of independence are shaking

A NEW forum is needed to lay down stronger foundations on which to decide the future of Scotland, writes Alf Young

There are now four structural foundations for the Scottish Government’s drive to make Scotland an independent state. The first, underpinning all the others, is securing the assent of the people of Scotland in a referendum. The others are: continued membership of the European Union post-independence; retention of sterling and the use of the Bank of England as an independent Scotland’s monetary authority and as its financial regulator; and continued membership of Nato, provided no nuclear weapons remain on Scottish soil.

It will only be possible to install the central, popular-will pillar in two years’ time if, once all our votes have been counted, enough of us say Yes. There is, however, no credible reason why detailed preparatory work on the other three should not be well under way by now. Independence in Europe is a long-standing SNP aspiration. The decision to retain the pound for the foreseeable future was announced at the beginning of this year, after the scale of the eurozone crisis became clear. Embracing Nato was only endorsed by the SNP conference in Perth a week ago, but the leadership has been pushing for that change for months.

However, we now know no attempt had been made to seek legal opinion on an independent Scotland’s status in relation to the EU – until this week. If it’s taken that long to ask that key question, what chances that the legal consequences of keeping the pound and staying in Nato have been properly explored either? Less than zilch, I’d say. There is certainly no visible trace of Alex Salmond or his ministers opening up substantive discussions with the European Commission, the Bank of England or Nato.

We have had barrow-loads of assertion that our continued membership of the EU will be “seamless”, that keeping the pound will not require any fiscal pact with the rest of the UK, and that Nato will welcome us with open arms – even as the last nuclear sub is heading down the Clyde for the last time. But in terms of dispassionate legal opinion on any of these matters, the Scottish Government is only now stirring into action.

Its defence will doubtless be that it couldn’t seek such advice until the Edinburgh Agreement was signed. But that didn’t stop ministers – from the First Minister down – asserting, on an almost daily basis for years, how benign and trouble-free all the consequences would prove to be. “Trust us”, has always been their implicit message to voters, “we know what we are doing”.

That failure, even in private, to seek legal advice before now on continued EU membership and almost certainly on sterling and Nato, too, appears to be a flagrant breach of the ministerial code that the First Minister is still invoking as his reason for keeping any advice he eventually gets on the EU issue to himself and his colleagues.

At paragraph 2.30 (and with no words missed out, I assure you) the code states: “Ministers and officials should be alert to the public interest in ensuring that their decisions are taken in a fully informed legal context and should ensure that the legal implications of any course of action are considered with SGLD (Scottish Government Legal Directorate) at the earliest opportunity and that all briefing to ministers is informed by SGLD’s advice on the legal considerations.”

On arguably the biggest choice Scots have had to make in 300 years, the structural decisions – on Europe, on the currency and on our defence post-independence – have all been taken well in advance of ministers establishing any legal context or considering any legal implications. Forget the First Minister’s verbal gymnastics this week; by making the claims they have, all have comprehensively breached their own code.

It is not even clear that the code, as currently constituted, is up to this exceptional task. The government is now asking the Lord Advocate, Frank Mulholland, to consider the EU membership question. But as paragraph 2.30 also points out, “They (the Lord Advocate and the Solicitor General for Scotland) cannot and do not advise on every legal issue which may arise. The primary source of legal advice for the Scottish Government (including Cabinet secretaries and ministers) is the Scottish Government Legal Directorate.”

Is SGLD stuffed with international and constitutional law experts? You can look up their biographies on the Scottish Government website. The man in charge has a background in criminal justice. He was part of the team that delivered devolution. Since then, he’s done everything from secure tenancies to national parks. His deputy was previously legal secretary to the Lord Advocate. The others all have divisional responsibilities within devolved government. It’s certainly not clear what collective expertise they can bring to bear on EU membership.

There are other people around Scotland with an intimate knowledge of what’s involved in signing up to these three structural pillars of an independent Scotland. This week George Robertson, a former secretary-general of Nato, wrote a piece for the online Scottish Review pointing out that, in its latest strategic concept – agreed last year – Nato confirmed that it would remain a nuclear alliance. It also insisted it would “ensure the broadest possible participation of allies in collective defence planning on nuclear roles, in peacetime basing of nuclear forces and in command, control and consultation arrangements”.

And yesterday, in a letter to The Scotsman, David Crawley, a former Scottish Executive representative in Brussels, suggested that, if Scotland leaves the UK, then it would have to negotiate entry back into the EU and win the unanimous agreement of all existing member states to do so. Most would be happy to welcome Scotland in, he suggested. But few, if any, would be willing to grant concessions over not having to join the euro, immigration and other issues. And some, like Spain, might try to thwart re-entry because of the precedent created.

Like Jim Sillars, in the same edition, Mr Crawley is saying that these issues will be resolved ultimately by politics, not legal opinion. They are right. But if we go on the way we are, it’s unlikely the politics will be resolved before we have to say Yes or No to taking the plunge. The choice of whether Scotland should be independent or not is vested in the Scottish people – but, at the moment, it’s a blind choice.

If the promised white paper a year from now continues to peddle the government’s current line on EU membership, on retaining sterling and on staying in Nato without spelling out chapter and verse on what agreements have been struck with whom and on what terms, then it will be just another dodgy dossier, like Blair’s justification for waging war in Iraq.

At the end of a week when the ministerial code has loomed large, I begin to wonder if it has any role to play in a referendum to determine Scotland’s constitutional future.

In the name of open, accountable and transparent government, there must be a better way. A non-partisan forum, say, that can inform our choice. For the foundations laid so far, behind the veil of the ministerial code, wouldn’t support a house of cards, let alone an independent Scotland.