The anti-democrats in Brussels have been ramping up their offensive against self-determination in direct contradiction of their once-pervasive mantra of subsidiarity. Instead of trumpeting the policy of making decisions at the most appropriate level, both the Commission and the Council are now joined in a resistance to the small nations and regions demanding recognition and equal status with the big boys in the club of member states.
Manuel Barroso’s dismissive comments – and deliberate snub to the Scottish government – have been reiterated by Hermann von Rompuy, the president of the Council of Ministers, the body that will actually decide on Scotland’s membership. Previously there had been a background turf war between Commission and Council with the latter letting it be known that the Commission’s hardline was not a unanimous view within the institutions. So it seems now that the two key bodies are aligned behind the united front of the member states who feel threatened by democracy in their own countries, fearing an independence contagion which uses Scotland as a precedent.
This is a hardening of the opposition to democratic independence which makes it harder to convince voters about Scottish membership and will turn attitudes in Scotland against the EU itself. The reason I say this is that these opinions are statements only, not legal opinion. They are the statements of politicians which is what both men are. It means they are of course deeply relevant and cannot be dismissed. Further, they are the antithesis of the constitutional role of both institutions which have no place interfering in the domestic affairs of a member state, a position which Barroso continues to aver while at the same time making a political statement implying Scots would be thrown out of the EU on independence, thereby contradicting himself.
Barroso has been obliged to find a formulation that pleases the members and appears to relate to the treaties because there is a constant pressure across Europe to get clarity on what happens when a member state splits democratically. The irony here is that he could indeed request a legal scenario from the EU lawyers if he was interested in treating the issue with the respect it deserves. He is not and neither is the UK as member state. The combined weight of the EU institutions is now directed squarely on persuading the Scots – and down the line the Catalans – to turn against self determination and subsidiarity in a direct interference in political affairs of a member country.
But let’s look at the wording they have chosen to defend the status quo against the wishes of a democratically elected European government with a mandate in Edinburgh. It is: “If a part of the territory of a member state ceases to be a part of that state because that territory becomes a new independent state, the treaties will no longer apply to that territory. In other words, a new independent state 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 any more on its territory.”
Read the first phrase again. If a part of the territory…ceases to be a part of that state because that territory becomes a new independent state…then at the end…the treaties would from the day of its independence…”
That is exactly what won’t happen on September 19 next year the morning after the referendum. Scotland will not become independent overnight and therefore the above statement is meaningless to the referendum. Scotland will remain in the UK and in the EU. It will remain there for as long as it takes to agree a termination deal with London which will end with both capitals recognizing the other as representing the two new states. Throughout those disaggregation discussions, Brussels will be present, guiding, advising and maneuvering so that the deal complies with the treaties – and the interests of the institutions. They will after all have to make sure it is watertight and that it can be sold to the other 27 members. It is only after an agreement between Edinburgh and London that Scotland becomes independent and that agreement will have been conducted in the full knowledge of and in consultation with the European Commission. Will they turn round when the ink is dry and point Scots to the exit door? Part of the deal will be mutual support between Scotland and rUK in which each will back the other’s continued membership because it is in their joint interest to do so. (I also expect London to immediately endorse Scottish membership of the UN as a mark of ongoing partnership).
What the Barroso/Van Rompuy anti-democrats are saying really saying is: Please don’t vote for independence because it will make life tricky for us and our political masters in the big nations hate the idea of losing power as sparky and wealthy parts of their countries break away. We can’t control things if they do and we’ll struggle to adjust to a changing world. Everything is fine as it is. And if you don’t play our game, we’ll threaten you.
This is political interference in a member state’s affairs and do you find it interesting that it hasn’t brought a single complaint from the British government? This is the anti-European Tories, remember, playing to the Little Englander gallery who threaten to come out of the European Convention on Human rights, who objected to the rules of justice applied to Abu Qatada and who want to renegotiate the terms of membership because of EU “meddling” in Britain’s affairs. So why no warning to the eurocrats about Britain’s internal affairs?
Perhaps because they are part of an orchestrated campaign to deny the truth to the Scots before they vote. I asked the Foreign Office why they refused to ask Brussels for legal advice which the Commission has stated will be given if a request is made from London with a “precise scenario”. Here is the key part of the reply: “The ‘precise scenario’ referred to by the Commission can only be presented following negotiations on the terms of Scottish independence from the UK, which can themselves only follow a ‘yes’ vote in next year’s referendum as there is currently no democratic mandate for undertaking such negotiations. The legal position outlined above is in any case clear, and has been confirmed by the Commission. The UK Government therefore has no plans to approach the Commission further on this issue.”
Note the new position – there can be no precise scenario until after the vote and after the discussions as well! So the Scots will not be informed of the official legal position in advance. I’m aware that Brussels has no reputation for democracy but to watch the connivance of our own government, the one that believes in a family of nations in the greatest Union in history, treat the democratic process with blatant contempt is telling Scots the true value of our relationship. In statement after statement, members of the Commission have said they will only answer questions on the legal process for Scotland if asked by London. None that I can find indicated this would only apply after a referendum vote. That is clearly absurd and is deliberate distortion by London to justify their untenable position in refusing to formally ask the question. The Foreign Office is relying on the Barroso statements – no surprise- and their own legal advice which did not come from EU lawyers who are the only ones in a position to give the advice. This is chicanery from the same people who accuse Salmond of being slippery. The so-called precise scenario is simply this… Scotland votes for independence in a legally watertight referendum and the British government recognizes the result. Scotland wants to remain a member of the EU. What happens next? Is it too much for the combined brains of London and Brussels? They give the impression they’re pretty clever at everything else.
You only have to start from a simple proposition – if the EU legal advice confirms Scotland will be ejected and must reapply from outside, why don’t the Unionists ask the question? It would stump the Yes campaign and move us into different, probably EFTA territory. But they won’t ask. Won’t ask because the legal advice will say no such thing. It will in fact say something very similar to this from Professor Dr Roland Vaubel, an adviser to Germany’s economics department: “The legal position taken by Barroso, (Viviene) Reding and van Rompuy has no basis in the European treaties. Nor is there a precedent in EU law. Nor does the UN Charter envisage dispositions with regard to secession… The treaties are also consistent with automatic succession of both the seceding state and the rump state.”
He went on to argue that the EU institutions had a vested interest in centralisation and were therefore biased against separatist movements while also hoping to gain concessions from an independent Scotland in negotiations. So we are being screwed by Brussels acting in concert with our own British government. Truly we are better together.
For further reading this is a link on the same subject by Angus Roxburgh.
and this is the full text of my letter from the Foreign Office. I particularly like the opening sentencewhich came as a surprise.
Dear Mr Bateman,
Thank you for your email.
The UK Government is not making plans to break up the United Kingdom. In order to inform and support the debate on Scotland’s future, the Government is undertaking a programme of analysis on Scotland as part of the UK, and how it contributes to and benefits from being part of the United Kingdom. This work is known as the Scotland analysis programme, and it is examining how Scotland contributes to and benefits from being part of the UK, and how the rest of the UK benefits from its partnership with Scotland. The papers published so far are available to read online here: www.gov.uk/scotlandanalysis.
The first paper in the series, Devolution and the implications of Scottish independence, was published on 11 February 2013 and set out the legal and constitutional issues associated with establishing a new Scottish state, based on an independent legal opinion from two of the world’s leading international law experts, Professors James Crawford and Alan Boyle. The opinion states that in the event of Scottish independence the United Kingdom would continue as before, retaining the rights and obligations of the UK as it currently stands. Scotland would become a new, separate state, and this would have significant implications domestically and internationally, including a need to apply to and/or negotiate to become a member of whichever international organisations it wished to join, including the EU.
The President of the European Commission also stated in his written evidence to the House of Lords Economic Affairs Committee inquiry into “The Economic Implications for the United Kingdom of Scottish Independence” in December 2012:
The EU is founded on the Treaties which apply only to the Member States who have agreed and ratified them. If part of the territory of a Member State would cease to be part of that state because it were to become a new independent state, the Treaties would no longer apply to that territory. In other words, a new independent state would, by the fact of its independence, become a third country with respect to the EU and the Treaties would no longer apply on its territory.
The ‘precise scenario’ referred to by the Commission can only be presented following negotiations on the terms of Scottish independence from the UK, which can themselves only follow a ‘yes’ vote in next year’s referendum as there is currently no democratic mandate for undertaking such negotiations. The legal position outlined above is in any case clear, and has been confirmed by the Commission. The UK Government therefore has no plans to approach the Commission further on this issue.
I hope you find this information helpful.