Jim Sillars: Market forcing the independence issue

A few weeks ago, in this newspaper, Bill Jamieson asked a reasonable question – what is it that the SNP government wants to do with the sovereign powers it is asking us to vote for in 2014?

There is as yet no answer, nor likely to be one for 12 months until the promised White Paper is produced next autumn. No wonder the No side is doing a Frankel on the Yes side. Bill’s question, from my own experience of talking to people, is not restricted to him.

There are many questions to be asked, and answered, but there are two core ones, vital to the decisions people will make: our access to the European market, including England, and just how exactly Scotland would be able to exercise independent fiscal power if the lender of last resort, the Bank of England, is located in and governed by a foreign country; and what will be the currency position if Westminster declines to sign a treaty with Scotland giving us a position on the board of the Bank of England and its monetary policy committee?

The party cannot wait 12 months to have these questions answered. The SNP government’s assertion that our membership of the EU will be seamless is, we now know, not based on solid legal grounds from any source that matters. In any event, whatever legal opinion is now given by the Lord Advocate, there is one outstanding flaw of customary international law in respect of the EU issue – there are no mechanisms to force that law upon that organisation when it says no to seamless membership.

The House of Commons Library, on 8 November, 2011, produced a paper, “Scotland, independence and the EU”, in which it examined the three different legal scenarios under international law, but came to the conclusion that: “Whatever the position under general international law, a decision on Scotland’s status within the European Union is likely to be a political one.”

They are correct. The EU is, above all, an organisation in which politics takes precedence over all other matters, as is demonstrated by its handling of the eurozone crisis, and the unseating of the elected heads of government of Greece and Italy, as part of its crisis management in seeking to hold fast to the project of greater and deeper integration – a political project.

What is hard to credit in the present fiasco, is that there have been authoritative statements, from the European Commission which, as the custodian of the treaties upon which the organisation is based, make the position clear. In response to a question tabled by Eluned Morgan MEP, in 2004, the commission replied: “When a part of the territory of a member state ceases to be part of the state, e.g. because that territory becomes an independent state, the treaties will no longer apply to that territory.

“In other words, a new independent region would, by the fact of its independence, become a third country with respect to the Union and the treaties would, from the day of its independence, not apply anymore on its territory.” The commission explained further that the new state could apply for membership, but for the application to be accepted it would require the unanimous agreement of member states.

The commission confirmed that position on 11 September 2009, saying that the application “would have to go through every country’s parliament … One can legitimately expect the Spanish politicians in Madrid would want Scotland to have a bumpy ride … The notion that Scotland becoming a member states is seamless is highly optimistic.” Last week, on cue, the Spanish vice-president of the European Parliament said Spain would veto a Scottish application.

It beggars belief that with these statements on the record, the SNP government has continued with an empty assertion that we would have a seamless transition from region, in EU eyes, to a full member state. The opinions the SNP has adduced for its assertions are from reputable legal personalities, but they count for nothing when we are faced by the commission’s unambiguous statements. It is the commission, the body with the political power, not any private person however exalted in the legal world, which is the decisive voice.

Now, it is possible to influence the commission to take another point of view, but that would require diplomacy on a European scale, visits to every one of the 27 member states’ governments to press the Scottish position: in the EU for over 40 years; no reason, given the democratic nature of the independence decision, to be ejected; pointing out that ejection means the loss to the EU of its only oil producer; and with the loss of Scottish waters the consequent destruction of its Common Fisheries Policy. There is no evidence that any such diplomatic effort has been made.

It never seems to have crossed the minds of the top SNP policy-makers that it would be much easier to engage in diplomacy, seeking membership, with the four small countries of European Free Trade Association. Efta and the EU have established the European Economic Area within which trade flows freely. If the EU signals a “no” to automatic membership, is it not wise to take up an alternative that delivers the essential access to the European market?

The SNP set out, in government, to demonstrate its competence so that when referendum day arrived, the people would accept its advice and vote yes. On this core EU issue, of importance not just to the business community but to the people who work for it, we have had a demonstration of amateurism; and along with it, thanks to the bungled FOI request, a loss of trust.

I am aware of the magnetic effect of loyalty upon the party at large, and the MSPs in particular.

A rallying round the leadership is understandable in normal circumstances. But this is not a normal circumstance. It may upset the minority parties to say so, but whether people vote yes or no will not be determined on the principle of independence or continued union.

The policies and practices of the SNP government, and what it intends to do with sovereign power, will go a long way to determine how people vote. The fate of this nation is at stake, and loyalty to its needs must come before any other consideration, especially a purely party one.

For too long Alex Salmond has exercised unfettered authority. But like all human beings he does not walk on water. His man management is defective, gathering acolytes instead of colleagues able to challenge him. His judgment too can be defective. He has exercised a vice-like grip on MSPs for years. It is time for the MSPs to get a grip on him. The EU is not the only glaring problem he has mishandled. The proposed currency union with England is a policy waiting to be torn apart. Less adulation and sharp scrutiny is now required from the party and its parliamentarians.

l Jim Sillars is a former deputy leader of the SNP.