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Scotland in Europe reconsidered

Nov 8

Posted by Guest Blog in Europe, Holyrood, International | 23 Comments

If the First Minister won’t take legal advice on EU accession, Better Nation will get some on his behalf – in this case advice contrary to one of the editors’ perspectives on the issue.  

Stuart MacLennan teaches European Union Law at Trinity College, Dublin, where he’s a doctoral researcher. He is a former advisor to Labour on Europe and External Affairs in the Scottish Parliament.

The debate surrounding the question of a newly-independent Scotland’s membership, or otherwise, of the European Union is, to many, a confusing one. This is likely due, in part, to the fact that two parallel debates appear to be taking place. The question as to whether or not a newly-independent Scotland would be a member of the European Union is often confused with the question of whether or not such membership would be automatic. It is the opinion of this author that while a newly-independent Scotland would almost certainly be a member of the EU, it would certainly not be “automatic”.

It is worth noting that there is five recognized means by which a state can be created:

  • Secession;
  • Dissolution;
  • Merger;
  • Absorption;
  • Decolonisation.

It is important, in the context of the current discourse, to correctly categorize Scotland, as each category tends to attract different treatment under International Law. Some have argued, quite incorrectly, that Scottish Independence would be a dissolution of the United Kingdom. This would have significant consequences for the remainder of the United Kingdom, as it would have to seek recognition as a “successor state” rather than simply being a continuing state.

There is no precedent, nor any unique grounds, to suggest that the forthcoming referendum could result in the dissolution of the United Kingdom through the repeal of the Act of Union. First, Irish independence did not result in any change in status for the United Kingdom, despite being merged by a similar Act of Union in 1800. Secondly, the s30 Order agreed by the Scottish and UK Governments only “unreserves” the holding of a referendum on “The Constitution” under the general reservations contained within Schedule V of the Scotland Act 1998, leaving the Schedule IV specific protection for the Act of Union reserved. A semantic point, but nonetheless significant in that it appears to be a recognition by the SNP that Scottish Independence would be a secession on the part of Scotland, rather than a dissolution of the United Kingdom. It is the opinion of the author that that Scottish independence would certainly be a secession.

Heavy reliance has been placed upon the Vienna Convention on Succession of States in respect of Treaties, in particular by the SNP. It is worth, at this point, making a few cautionary notes about the Vienna Convention however. First, the Convention is principally concerned with decolonization – with “successor states” being colonial powers and “newly independent states” former colonies. The International Law Commission wanted to insert a category of “quasi-newly independent states” to deal with secessions in the non-colonial context, which would apply more specifically to cases like Scotland, however France and Switzerland objected, not wanting to encourage separatist movements within their own territories.

Secondly, the European Union has shown scant regard for the principles of International Law in the past (it began with Van Gend en Loos v. The Netherlands, and just spiralled from there).

Finally, a mere 22 states have ratified the Vienna Convention, only six of which (Cyprus, Czech Republic, Estonia, Poland, Slovakia, & Slovenia) are presently in the EU. However as the SNP’s arguments are firmly rooted in the application of the convention, it is therefore necessary to give it further consideration.

The case on which the proponents of automatic EU membership relied hinges on Article 34(1) of the Convention, which states:

When a part or parts of the territory of a State separate to form one or more States, whether or not the predecessor State continues to exist:

(a) any treaty in force at the date of the succession of States in respect of the entire territory of the predecessor State continues in force in respect of each successor State so formed;

On that basis alone Scotland would surely accede to all of the United Kingdom’s treaties upon independence. However international practice would suggest otherwise. Following the dissolution of the Soviet Union, only Russia was deemed to succeed to most international instruments. Furthermore when Pakistan separated from India, the United Nations (hardly a difficult club to gain membership of) admitted Pakistan as a new member and recognized India as a continuing member – a practice which has been followed in every subsequent case of secession.

International practice was recognized by the International Law Commission in its commentary on the Vienna convention:

In many organizations, membership, other than original membership, is subject to a formal process of admission. Where this is so, practice appears now to have established the principle that a new State is not entitled automatically to become a party to the constituent treaty and a member of the organization as a successor State, simply by reason of the fact that at the date of the succession its territory was subject to the treaty and within the ambit of the organization.

This practice was therefore recognized in Article 4 of the convention, which states that:

The present Convention applies to the effects of a succession of States in respect of: (a) any treaty which is the constituent instrument of an international organization without prejudice to the rules concerning acquisition of membership and without prejudice to any other relevant rules of the organization;

(emphasis added)

It is clear, therefore, that both customary norms of international law, as well as positive international law, would not see an independent Scotland as a continuing member of the European Union.

However, it has also been suggested that EU Law is different from all other instruments of international law, because it purports to be directly effective. In particular, it has been suggested that the “EU citizenship” rights enjoyed by Scots would continue by virtue of the doctrine of direct effect. This is quite incorrect. The concept of “EU Citizenship” is often confused with citizenship of Member States of the European Union. While it is the case that the Treaty of Maastricht establishes the concept of citizenship of the European Union, it is by no means clear that such citizenship exists independently of citizenship of the Member State. One cannot, therefore, rely upon EU citizenship rights as somehow creating or continuing EU membership – they are the product of a state being a member of the EU, not the cause.

EU Law is, of itself, only directly effective by virtue of EU membership. It is not a super-sovereign authority that is effective without the consent of the governed (Member States). EU Law is only effective because the authorities of the Member State give effect to it (through the courts, administration, police, etc.) even if the legislation itself originates from Brussels. Without its own means of enforcement, the purported “supremacy” of EU Law over a territory is dependent upon continuing membership and acquiescence of Member States. Membership, therefore, marks both the beginning and the end of the direct effect of EU Law. It is, therefore, a fallacy to suggest that the direct effect of EU Law over the territory of Scotland exists in perpetuity.

Of course, the foregoing discourse is merely one of European and International Law – perhaps the sort of discourse that might be contained in legal advice from the Lord Advocate to the First Minister. Given the body of evidence that suggests that Scotland would not be a continuing member of the European Union, it is perhaps hardly surprising that the Scottish Government has not sought formal legal advice on the matter.

That is not to say that just because Scotland would not automatically be a member of the European Union, that it would not be a member at all. International law is inherently intertwined with international relations. It is the opinion of the author that – while not a continuing member of the European Union – Scotland would find itself in the position of a candidate state that satisfies all of the accession criteria. In that circumstance, it is entirely possible that immediate accession could be achieved through negotiation. However such matters of European politics are beyond the scope of this discussion.

Is it time for more left Euro-scepticism?

Jun 13

Posted by James in Europe | 6 Comments

I’m radically pro-European. You should like your neighbours, ideally, and I do. Consider every country in Europe in turn and you should be able to access a wide range of positives, politically and culturally, about each. Sure, some may be stereotypes, but this is an extraordinary and diverse continent to be part of. I also feel more European than British, frankly: happier spending time in Greece or Holland or Croatia than in much of England.

But does being pro-European in that sense mean you necessarily have to support EU membership no matter what? The crisis over the single currency is part of a broader crisis around the structures of the EU, including the regularly-described “democratic deficit”. The expansion of the directly democratic element of EU politics has come in baby steps, with the European Parliament’s greater but still inadequate powers being handed over begrudgingly by the Commission and by member state Ministers on the Council.

The weak argument is also still made that those Ministers represent a democratic element, despite a complete absence of public accountability for their decisions as Europe’s second chamber. In this country, at least, the European Parliament’s day-to-day decisions are almost always ignored by the media and the public, partly because no serious effort is made to explain them or even produce a clear website. The best-known MEPs are typically those from parties not at Westminster: Nigel Farage and Caroline Lucas (prior to her 2010 win in Brighton Pavilion).

Overall, it’s hard to avoid the idea that the European Union is a quintessentially elite project, at best a vehicle made by those elites as a representation of profoundly pro-European but relatively vague attitudes that have been a majority across much of the continent since the Second World War. There have been no protests against the nation-state as previously constituted, though, no substantial ginger groups distributing petitions for more integration – “what do we want? a reduction in qualified majority voting! when do we want it? before the Lisbon Treaty comes into force!”

Despite that, there is much the European Union has been responsible for that I admire, typically exactly the sort of thing that makes Farage go red in the face. Environmental regulations, the “social chapter” and limits on the working week (which the UK should have signed up to), free movement of citizens and their right to work across the Union, consumer protection legislation, all that good stuff. If it weren’t for the very obvious price to pay, it’d be great not to have to change money while travelling across the continent.

The flip side is substantial, though. What if we wanted to renationalise the railways? EU rules require at least an accounting separation of rail infrastructure and train services, a substantial part of the problem, and this is enforced by an aggressively pro-competition Commission. Same with postal services – it’s possible that it would prove hard even for an independent Scotland to undo the three-party consensus Royal Mail privatisation within the EU.

In fact, if you could sum up the politics of the pre-crisis European establishment in one word, it would be “competition”: it’s perhaps more central to the Union’s operation than it was to Thatcherism itself. There is no ill the Commission doesn’t think can be fixed by more market liberalisation, and no institution too important to jeopardise with this ideological drive.

But all of that is being eclipsed by the single currency debacle. The mainstream left, right and centre all backed this project (less of the right, admittedly), but not the Scottish Greens – although I have to admit my concern about stability was based on the effect of a single interest rate on divergent economies, not about the combination of deregulated banking sectors combined with divergent fiscal policies and bond rates.

And the fact remains that the EU establishment’s response to the Eurozone crisis has been threefold: dither, slosh public money into banks rather than bailing out innocent depositors (where the right’s concerns about moral hazard are also valid), and impose massively regressive anti-cyclical cuts on the public sector. We also have to watch the unpleasant spectacle of Germany in particular benefitting from the Euro’s low value (as far as German exporters are concerned), at the direct expense of the poorer nations for whom the single currency remains an over-valued albatross.

The solutions being touted to this failure to integrate is, as always, further integration. The much-written about Eurobonds would mean the richer nations, not just Germany, would cover the loans to the broken banks while also effectively setting fiscal policy throughout the EU. There would be virtually no point Syriza winning the Greek elections on Sunday: much of their agenda to protect workers’ rights would be subject to an Angela Merkel veto.

Just last night it transpired that Commission President Barroso is proposing a union of banks to go with the bankers’ union we already see in effect: a more efficient way to fleece the public on behalf of the markets than European Union policy has perhaps never been devised. Like many of the Eurozone sticking-plasters, this will have a substantial impact on the non-Eurozone members of the EU too.

And can this deeper and closer political union, a union with internal financial transfers and two speeds in the same direction, even be delivered before the Euro collapses under the weight of its own inherent contradictions? Will public opinion across the EU permit it?

For now, most of the organised party-political scepticism about the project is on the right: not just the Blimpish UKIP but also harder right elements in European politics like Wilders’s PVV. The reasons for centre-left support for the project vary from member state to member state, but are often rooted in a laudable desire for international solidarity.

For the Labour party, specifically, and the parts of the UK-wide left which still believed in Labour during the 1980s, there’s also an emotional link: Jacques Delors was an effective opposition to the Thatcher administration in just the way Neil Kinnock and Michael Foot weren’t. But that’s no basis to determine our position in international structures, especially given the market fundamentalism set out above. EU membership does come with a limit to how right-wing your government can be, but it’s pretty slack: neither savage austerity nor such abominations as the recent Hungarian media legislation seem to be offside.

The point is that membership also limits how left you can be, especially economically. It’s explicitly a market project, not a popular project, and where I’d expect to agree with the smarter part of the Tory right (Douglas Carswell, Dan Hannan etc) is that it should be up to the voting public to determine where national policy lies on that spectrum. The alternative is to accept a distant backstop in the direction you don’t want to see the country go, the price being a limit to the ambition with which you can head in the other direction.

Greens in this country have spent long enough saying “yes, but reform” to the EU. Is it time to take that to “no, unless”, at the very least? Should we really abandon healthy scepticism about this floundering project to the right? It may well be time to look at the alternatives, and to start setting out how more independent nation-states might cooperate on labour and environmental standards, as well as working together in other ways that could preserve the EU’s wins for the people but stop putting the thumb on the scale for deregulated speculative capitalism.

Ireland should take a punt on a No vote

May 31

Posted by Jeff in Economy, Europe | 6 Comments

Ireland takes to the polls today to state its opinion on the new EU Fiscal Pact. The country may be in dire straits, but it can still hold its head up high and proudly play its part in Europe, and even lead Europe by voting No in this referendum.

Despite only 12 of the 17 Eurozone countries required to back this Treaty change for it to pass, a healthy challenge to the myopic solutions in place would be beneficial to the debate at this stage. It is likely, however, that the Irish will forego a more Keynesian suggestion and grudgingly continue to accept the austerity medicine that it has been administered by voting Yes.

This would be unfortunate. A lefty solution to the financial storm wreaking its way through Europe has bobbed to the surface recently with Tsipras’ anti-bailout party set to increase its vote share at the Greek elections on June 17th, Francois Hollande’s growth-based Socialist arguments pipping Sarkozy to the French presidency earlier this month and Christine Lagarde urging George Osborne to consider a Plan B to boost British, and European, growth prospects. Angela Merkel is a lady that may yet be for turning if more pressure could be placed on the Chancellor to make Germany take up more of the Euro strain given its trade surpluses and strong credit rating, relieving the burden on the struggling countries in the Eurozone. Ireland is currently best placed to keep this pressure up with its referendum today.

The banks and businesses that have a self-centred vested interest in Greece and Spain and Ireland enduring a more impoverished short to medium term future are against having their loans commuted or written off. However, if you back the wrong horse in any other gambling market you don’t get your money back; so these banks that backed the wrong countries should surely be made to bear the brunt of their mistakes. The Irish are being tricked into a sense of guilt and responsibility in accepting their fate by ‘the markets’ directing them down a one-way street.

How did we get to the position where companies are dictating to countries what should happen? Should we be electing representatives into Greece, Ireland and the UK or JP Morgan, Citigroup and Goldman Sachs? Why shouldn’t countries adopt the Icelandic model of telling banks to ‘get stuffed’ when they ask for their money back?

The whole point of the European Union was to raise standards for all and progress peacefully together as a Continent. Stronger together and weaker apart etc. I don’t see how that works when member states have their noses pressed to the dirt while others continue to enjoy relative luxury. Germany had its house in order for the past two decades, Scandinavian economies are motoring on very nicely and even Britain has built up a nice buffer zone keeping disaster at bay. European solutions for European problems is surely the way forward if we can all just pull together.

This isn’t just a referendum between an onwards march to a European superstate or countries going back to punts, drachma and pesetas. The Irish are also voting Yes for continued slavish obedience to the markets or voting No for a Socialist solution to a Capitalist mess.

It seems an easy decision from where I am sitting.

Scotland should be proud to stand alongside Ireland and Iceland

Mar 3

Posted by Jeff in Economy, Europe | 15 Comments

The Guardian is part way through a commendable series of questions on independence in a ‘Reality Check’ series. I suspect however that a key factor for the dim and distant referendum result is one that may not get picked up in this series – Is there still a Northern Europe arc of prosperity for Scotland to join?

As unfortunate as it is to think that the success or failure of other countries should determine Scotland’s constitutional fate, this is an issue that still dominates the independence debate, so much so that I often wonder whether Alex Salmond regrets uttering the following lines:

“Scotland can be part of Northern Europe’s arc of prosperity. There are three countries (Ireland, Iceland and Norway) there which are all in the top six wealthiest in the world. In contrast, devolved Scotland is in 18th place and the UK as a whole is only 14th. With distant London in charge, Scotland will just keep slipping further behind.”

In the occasional discussions that I get into on whether Scotland should break away from the UK or not, it is not so much an emotional or rational tie with the United Kingdom that makes people keen to vote No but rather it is the fear of being the next Ireland or Iceland. I honestly rather suspect that many such people don’t even stop to consider if that would be such a bad thing.

The logic goes that Ireland is a basketcase and Iceland effectively went bankrupt so why would Scotland want to risk following suit? So far I have not sensed much consideration over the likelihood of following suit or, for that matter, how bad the situations in these countries actually are. Headlines, unfortunately, are sufficient for conclusions to be drawn.

So, the IMF’s list of countries’ GDP by head for 2011 will make surprising reading for some:

3rd – Norway, $96,591 per head
14th – Ireland, $48,517 per head
21st – Iceland, $43,226 per head
22nd – UK, $39,604 per head
26th – Scotland, $33,680 per head

Norway, Ireland and Iceland may not be in the top six any more but suggestions that they are part of some sort of ‘arc of insolvency’, as Labour’s Jim Murphy once put it, are very wide of the mark indeed.

Even looking at growth for the most recent quarter available, 2011 Q3, makes for interesting reading:

Norway, +1.1%, (2011 Q2: -0.3%, 2011 Q1: +0.5%)
Ireland, -1.9%, (2011 Q2: +1.8%, 2011 Q1: +1.4%)
Iceland, +4.7% (2011 Q2: +2.8%, 2011 Q1: -3.6%)
UK, +0.5% (2011 Q2: +0.3%, 2011 Q1: 0.0%)
Scotland, +0.5% (2011 Q2: +0.2%, 2011 Q1: +0.1%)

I’m struggling to see how the UK is doing significantly better than these supposedly insolvent countries, if we’re even doing any better at all. On an aggregate basis, Scotland and the UK were outperformed by each of Ireland, Iceland and Norway in the first three quarters of 2011 so there is clearly some sort of potential for an ‘arc of prosperity’ to be tapped into for an independent Scotland.

Worthy of consideration here, as it was one of Salmond’s primary reasons for raising the arc of prosperity in the first place, is what the Corporation Tax rates in these countries are:

Norway, 28%
Ireland, 12.5%
Iceland, 20%
UK, 25%
Scotland, 25%

As much as I personally am concerned about a race to the bottom across Europe if countries start undercutting other countries on Corporation Tax, particularly given France and Germany have rates set as high as 33% and 30% respectively, it is clear that Scotland has a difficult challenge ahead of it to compete with London, Dublin and Iceland in attracting investment, whether it is independent or not. London may have the same Corporation Tax rate but it also enjoys closer proximity to the continent and better transport links and can expect to be at the front of the queue. Iceland and Ireland of course just have cut rate deals, while Norway has enough oil revenues to keep its tax rates high.

Perhaps the saddest aspect of Ireland’s current difficulties is the number of bright young things leaving the country for better prospects abroad. One could argue that this isn’t a road that Scotland would want to go down through independence and, yet, that is precisely what is happening now. (I know this from experience as I moved to London strictly because Scotland couldn’t provide the PhD that my partner wished to study. Wales, incidentally, could).

The Irish population in 1961 was 2.8m. The population today is 4.5m.
The Norwegian population in 1961 was 3.6m. The population today is 5.0m.
The Icelandic population in 1961 was 179,000. The population today is 318,000.
The Scottish population in 1961 was 5.2m. The population today is 5.2m.

There is clearly only one stagnant, problem child in the above list and that is because there is an historic, corrosive brain drain taking place in Scotland that is damaging growth from both a population and an economic viewpoint. It is little wonder that ‘London-based parties’, to use an unfortunate phrase, are championing the continuation of the UK when it is London that is the prime beneficiary of this very brain drain.

Kids wanting to get away from it all in Sweden move to Stockholm, kids wanting to get away from it all in Norway move to Oslo and kids wanting to get away from it all in Iceland move to Reykjavik but too many kids wanting to get away from it all in Scotland move to London, and we are haemhorrhaging talent and creativity as a direct result.

This post has largely consisted of financial or demographic related data based on growth, and there is a strong argument that constantly chasing growth is the wrong direction given the global equality and environmental problems that we face. So, which countries are simply the happiest? Surely if Ireland and Iceland are facing such tough times, the arc of prosperity will have been replaced with an arc of despondency instead?

Well, the UN’s most recent ‘happiness index’ has results as follows:

Norway – 1st
Ireland – 7th
Iceland – 14th
UK – 28th

Is it worth Scotland risking breaking away from the United Kingdom in order to simply be a happier place, even without considering whether it would be better off? It does appear that is worthy of consideration, based on the statistics.

I’m not saying that Ireland, Iceland and Norway’s situations are in themselves a reason for Scotland to be independent but what I am saying, quite categorically, is that their situations are not, as many seem to believe, a reason for Scotland not to be independent.

Too many Scots are considering exaggerated risks while turning a blind eye to the benefits that independence could bring. I don’t know if this is wilful ignorance or simply a resistance to change but it is stultifying the independence debate and, to use the Guardian’s phrase, a ‘reality check’ is long overdue.

An arc of prosperity is still there for Scots to be a part of, all they have to do is want to see it.

Scotland, Europe, the SNP & the Lib Dems

Dec 12

Posted by Jeff in Europe | 51 Comments

The Liberal Democrats, despite holding what I have no doubt is genuine anger, have had a good weekend. 

David Cameron has naively harrumphed the UK out of Europe and Ed Miliband is stuck just outside Brussels waiting for a bandwagon to jump on. All the while Nick Clegg and Vince Cable have argued vociferously and pleasingly unapologetically in favour of the EU, not to mention Paddy Ashdown writing passionately in the Observer (and Will Hutton too, if he counts as a Lib Dem these days?). 

They have, whisper it, looked voteworthy for the first time since the tuition fee volte-face (or should that be vote-farce?), a party that is ready to step away from being the coalition’s punching bag and, bloodied but blooded, argue for what it believes in again rather than apologise for the miserable little compromises that it has made in the past.

And what of Salmond and the SNP? Well, the non-appearance of anyone from the party’s camp on The Politics Show at the weekend spoke volumes really. When the SNP has nothing to say on a subject it tends to mean that it is on the back foot. The party policy is to join the Euro at some point in the future and assume that the UK’s position inside the EU will guarantee Scottish entry. Both policies are not quite in tatters but they are more than fraying at the seams as they drown in a sea of confusion. Even the mighty David Torrance, writing in The Scotsman today, could only ask more questions than he could answer. 

It won’t be enough for the SNP to tease the Scottish public with different European and currency options this side of the referendum though. The Saltire will have to be nailed to the European flag or not and, I’d suggest, that it still absolutely should be. ‘Scotland in Europe’ only carries a little less weight than it did a decade ago.

It’s easy to postulate that Scotland is more pro-EU than the po-faced Middle Englanders who still defend a Britain that died long ago, while making crass jokes about the French and Germans. It’s harder to find polling evidence that backs that up. 

Either way, if rUK is pulling one way then there is a clear benefit to the SNP if it can pull another and take a majority of Scots with it. There’s not even necessarily anything wrong with taking principle out of it. Anything that leaves Scottish Labour in the now familiar territory of trying to oppose the UK Tories and the SNP who are at opposite ends of a spectrum should reap dividends in the battle of who speaks for Scotland.

Not that there’s anything wrong with the principle of being pro-EU. Far from it.

The Scottish Government may have no time for the EU fisheries policy, it may have no time for the Common Agricultural Policy, it may not be interested in eye-watering EU membership fees and it may well ultimately shun joining the Euro and even the EU (that hasn’t had its accounts signed off in donkeys years), but I would wager that it would always want to have a seat at the table with a little saltire on it, be open-minded enough to make the best of the bad deals out there through being in the room, be keen to champion Scotland as open for business and I’d wager that it would want to be as close as possible to the countries that it’ll seek to sell its £2bn/year of renewable energy to. 

The bottom line is, shared problems require shared solutions and, though far from perfect, a European union remains the ideal model for finding optimal solutions to those problems while a shared currency remains the optimal means by which to ensure equality and fairness for workers across the continent. A rising tide lifts all boats.

Furthermore, and this is where we come back to the Lib Dems, the SNP has no space on its left flank to allow Willie Rennie and his Scottish Liberal Democrats to be seen as Scotland’s pro-European party. 

However, if the former continues to shun media invites and the latter continues making passionate arguments in favour of the EU, what is one to do?