I Go All Academic

Here’s an interesting piece on what Brexit might mean for independence…we kind of take over the UK’s membership! A couple of caveats…we can’t keep sterling, the England border is a live issue again and of course, we still have to win a referendum first. (It’s from the London School of Economics but is easy to understand even for me)

One of the key issues in the 2014 referendum on Scottish independence was the question of how an independent Scotland could join the EU and whether it would retain the same membership terms as the UK. Merijn Chamon and Guillaume Van der Loo revisit the issue in light of the UK’s upcoming referendum on EU membership. They argue that if the UK were to leave the EU, it could simplify the process for Scotland to retain its membership should the country opt to become independent.

In the run up to the 2014 referendum on Scottish independence, a number of posts (by Jo Murkens, Daniel Kanealy and ourselves) appeared on this blog in which the legal and political difficulties of assuring a smooth (re-)accession for Scotland into the European Union were highlighted.

The Scottish government’s proposal to rely on Article 48 TEU (the Treaty revision procedure) was found to be legally flawed and also politically uncertain. The procedure to allow a new state into the Union (Article 49 TFEU) was found to be the proper procedure but it is politically unattractive for a newly independent state, since it would be faced with a temporal paradox: namely, how to make sure that the outcomes of two, in principle, logically successive negotiations (on intra-UK independence and inter-EU accession) coincide perfectly. It was further far from clear whether Scotland (as a new EU Member State) would be entitled to keep the opt-outs applicable to the UK (including with respect to Schengen, the euro, Justice and Home Affairs cooperation, and the UK’s rebate).

Given the outcome of the referendum, these questions need not be resolved at the present time, but the upcoming referendum on the UK’s continued EU membership could open up a third way to EU membership for an independent Scotland. Interestingly, unlike the options discussed in the run up to the 2014 referendum, it would be both legally and politically more sound, allowing for a less cumbersome transition from an EU region within the UK to an independent state and EU Member State in its own right.

Scotland’s EU membership

Drawing from the previously cited articles, it should be recalled here that the problem for a Scottish accession under Article 48 TEU is that Scotland would not be a party to the EU Treaties where this is a prerequisite for being a Member of the EU. The problem under Article 49 TEU is that it cannot guarantee Scottish EU Membership taking effect on the same day as Scottish independence from the UK. In addition, Scotland would be a new Member State which, just like the Member States from the 2004 enlargement, would enter the EU with an obligation to participate in the entire acquis.

Paradoxically, at first sight a Brexit could address all these difficulties. The gist of the reasoning would be as follows: if the UK as a whole votes to leave the EU, while in Scotland a majority votes to stay, the procedure of Article 50 TEU could be used to allow the UK (minus Scotland) to withdraw from the EU, while Scotland would be entitled to pursue the UK’s EU Membership. Both issues would of course have to be negotiated by the (still unified) UK government. While the Article 50 TEU solution would not do away with all legal and political obstacles, it would be less uncertain than the options of going through Article 48 or 49 TEU.

Expanding this argument, it is clear that a first precondition is that a ‘fault line’ within the UK would manifest itself on 23 June following the referendum. In this regard, Scottish First Minister Nicola Sturgeon remarked that ‘a vote to leave the European Union against Scotland’s wishes would “almost certainly” trigger another independence referendum.’ Supposing then that the second referendum on Scottish independence would result in a vote for independence, the necessary preconditions for using Article 50 TEU as a backdoor to EU membership would be met.

Although Article 50 TEU only prescribes the procedure for a Member State (e.g. the UK) to leave the EU, this provision can also serve to govern the withdrawal of only a part of a state (e.g. England, Wales and Northern-Ireland) and as a legal basis to keep an independent Scotland in the EU in the context of a Brexit – under the condition that there is a political consensus for this among the three parties involved (i.e. the EU, Scotland and the UK minus Scotland). The negotiations foreseen in Article 50 TEU would then have two main aims: defining the EU’s relationship with the UK (minus Scotland) post-Brexit and adapting the terms of the UK’s EU membership to Scotland (i.e. adjusting them to Scotland’s size).

While under international law, Scotland would become a new legal entity, in the EU legal order it could remain being regarded as the Member State that joined in 1973. At least one remaining difficulty (under international law) would be the succession of obligations in relation to the many mixed agreements concluded between the EU and the Member States (on the one side) and third countries (on the other side). For each of these treaties, an agreement should be reached with each third state concerned on the proper identity of its ‘UK’ counterparty. Still, from the perspective of the EU legal order this solution would allow Scotland to keep the UK’s opt-outs (subject to a possible renegotiation in the Article 50 TEU procedure) and it would allow for a smooth transition between being part of the EU as a region of a Member State and as a Member State in its own right.

After all, Article 50 TEU allows for the postponement of the actual withdrawal (as long as necessary, given the need to first conclude an intra-UK agreement on Scottish independence) if the European Council agrees so unanimously. This unanimity requirement should not be too problematic, since Scottish EU membership would be linked to the UK’s withdrawal. Even if some Member States might have (domestic) reasons to hinder Scottish EU membership, it is in everyone’s interest to have the UK withdraw in an orderly fashion. Forging a package deal between the two issues could then be Scotland’s easiest road to EU membership.

Note: This article gives the views of the authors, and not the position of EUROPP – European Politics and Policy, nor of the London School of Economics or the CEPS. Featured image credit: First Minister of Scotland (CC-BY-SA-2.0)

Shortened URL for this post: http://bit.ly/1UalBDo

Merijn Chamon – Ghent University

Merijn Chamon is post-doctoral Assistant in the Ghent European Law Institute of the University of Ghent (Jean Monnet Centre of Excellence). He is especially interested in the broader realm of EU institutional and constitutional law.

Guillaume Van der Loo – Ghent University / Centre for European Policy Studies (CEPS)

Guillaume Van der Loo is post-doctoral researcher for the Flanders Research Fund (FWO) in the Ghent European Law Institute of the University of Ghent (Jean Monnet Centre of Excellence) and a researcher at the Centre for European Policy Studies (CEPS). His research interests are the EU trade policy and the Union’s proximity relations.




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We’re Not Worthy

I’ve just got back from Argyll and I’m catching up with my electronic mail to find I’m under attack by some Unionist nutter who calls me a tribal SNP apologist. It’s a really sneery, hysterical piece as you’d expect from an anti-SNP bam. Oh, hang on. I’m wrong. It’s actually written by the editor of Bella Catetonia, the pseudo intellectual website. So that’ll be Noam McChomsky, then.

Noam is very angry. It seems that in the highbrow world of Bella Intelligentsia nobody is allowed to disagree with Noam. If they do, it turns them into establishment trusties to be denounced. Not just me but anybody who agrees with SNP policy – and I think that’s quite a lot of people – isn’t a supporter but an apologist. We just parrot government news. That means that we all know the SNP is wrong but we haven’t the bottle to speak up. Not like Noam. He’s a supporter/apologist of a different party and will get round to telling us which one. Sometime. Soon. Just not in this sleekit whine. There are many interesting items in Bella Encyclopaedia and I always read them – as soon as I get them back from Google Translate.

Noam has many radical ideas. He wants to win back No voters – essential to winning a referendum – by spray painting Saltires on their door and when they come out shouting at them: ‘Away and live in England, ya Tory bastards.’ I think this will work, don’t you?

In Noam’s world support for the governing party is for pansies. Even if you’ve spent three years regularly challenging SNP decisions, it doesn’t count because he didn’t read them. Even when you explained how Alex Salmond was ready to settle for a deal less than independence, or told how he ignored advice from colleagues on Europe, or you opposed his policy on the pound, wrote how anti poverty plans were inadequate and criticised the glorification of Nicola, it’s not relevant because you’re objections aren’t as good as Noam’s. And he has a better route to achieve independence than the dreary SNP. (See future issues for explanation).

That’s me being unthinking and unquestioning again, stuck at the foot of the ivory tower.

Those of us proud to be foot soldiers in the march to independence and without delusions of grandeur sometimes think Noam is, like his motto, getting above himself. He doesn’t hesitate to tell other sites what they’re getting wrong and who should and shouldn’t be allowed to write for them and having meltdowns. The tortuous business of his dealings with respected James Kelly lost him kudos. (Was he a teacher in another life?)

In my apparently unchallenging way I regard independence as the single most radical idea in British politics, one that scares the establishment witless and we all know, online editors apart, that the SNP is the only way to achieve it. Everything else is distraction. I think it’s a good thing to disagree with each other on ideas and policy but I do just wonder how productive it is to denigrate folk who are on the same side using derogatory and insulting language. (As I am now. Was I to comply and shut up?)

Surely a professor will pop up on Bella to explain how this helps a) solidarity and b) our own argument just head of an election. But that’s just me being boring and conventional again. So here’s a radical idea – Noam could send back all the donations to his crowd funder that came from SNP ‘apologists’.

To sum up, and in the words of Chomsky himself (from Syntactic Structures. 1957) ‘Get tae – ya balloon’

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A Poor Do

The SNP is not the party of social justice after all. They’re letting everyone down and are no better than the Tories. (Two sentences that sum up 10 days of derivative onslaught from our loyalist media echoing the plodding propaganda from the losers in our imminent election).

As we’ve commented often here, you have to wonder why die-hard Unionists – and makeweight columnists with a living to earn – constantly urge the Nationalists to be ‘more radical’. Most of them represent a political interest that hasn’t had a radical idea since 1945. Although, to be fair, the Tories’ underhand and insidious dismantling of the state as we know it and their retribution on the vulnerable do qualify as radical, if only in the sense that Hitler was a social trailblazer.

It used to be said, with some justification, that it was the alternative media that operated in an echo chamber. But a cursory examination of commentary in Scotland reveals the reality – 99 per cent of voices are either Unionist and by definition, anti-SNP, or they are politically aligned with Greens or RISE. I’m glad about the latter because these are new voices and do genuinely offer a different viewpoint that challenges so many standard assumptions. Good luck to them. They are the spear carriers in what looks like a gradual rapprochement with the mainstream. My point is rather that we have a country with an SNP government of nine years standing which had a successful period in opposition before that…so about 10 years of high profile parliamentary politics. They have just scooped 95 per cent of all the seats in Westminster. They are averaging somewhere north of 50 per cent of all votes for the next election, crushing the combined opposition. They will form the next government.

Now count the number of regular commentators you know who (broadly but not uncritically) can explain and (mostly) justify SNP policy. Think hard, because I had to. I don’t mean an SNP version of the kind of slavish and embarrassing parroting of a party line that you get in the Record or the British Empire despatches in the Telegraph. Just a columnist or regular on-air voice that mostly stands up for the SNP line.

Any luck yet? I thought first of Andrew Wilson but he’s lost his spot in SoS. I suppose you include Andy Nicol of the Sun who often dispatches the twisted drivel from the usual suspects with aplomb. (Hope he doesn’t mind being included). Then I remembered Kevin Pringle who writes in the Sunday Times – which I don’t read. He’s a recent staffer and I imagine is unlikely to deviate from general policy positions. Apart from anything, he’s hired by a lobbying outfit because he has close links to the party.

So possibly a single political hack and a once-a-week columnist could be said to represent the view of the party of government and its membership of over 100,000. That is barely believable in a modern democracy. Given that it is same people whom the BBC invite to pontificate in their taxpayer-funded studios – whether they actually know anything or not – you can see why a democrat would regard Scotland’s political landscape as distinctly warped.

I don’t just enjoy other voices and views, I used to make a living arguing to get them on air and debating with them. But the skewed nature of Scotland’s media today is a disservice to our democracy. I don’t want the SNP ‘making programmes’ or running a national broadcaster. I want the BBC to do what it was set up to do – to represent ALL of Scotland and reflect our country back to the Scots. If the papers don’t hire people able to do that, then it isn’t good enough for the BBC which takes our money only to reflect the one-sided view of the press. It should be searching for people who can at least articulate why, despite doubts about aspects of policy, they think so many of our people do continue to back the SNP.

Still, the BBC’s output does at least give us a laugh. Our old Unionist chum Jim Naughtie has been having dinner with Ming Campbell again, I think. He had a report on Radio 4 which leant heavily on Willie Rennie’s input and which informed the British people that there is growing concern at the SNP’s one party state. This is astonishing propaganda from a once fine journalist who totally failed to explain what that means. The very fact he’s reporting on an election should be a clue even to doddery Jim. I saw six leaders on television and I hear RISE are also standing candidates. By whose definition does that constitute a one party state? Should the BBC send Morningside Jim to North Korea for re-education on one party states?

When he was publicly supporting Labour did he miss them having a majority of Scottish MPs, the MEPs, almost every local authority followed by the lead in the early Holyrood administrations? Ach, you know the arguments… It’s just embarrassing to hear that flammed-up nonsense misinforming the English voters. Some of us are proud of the parliament and our political culture – and it’s proportional voting system (somewhat rare in one party states). Naughtie demeans it and Scotland.

But to return to the SNP failing to live up to others’ expectations. If one of the 99 per cent of hacks says they’re not radical enough, discount it immediately as they’re programmed to find complaint and would like nothing better than a chance to paint the Nats as socialist extremists ‘after your money’. Kenny would commission Alex who would commend David who’d be flattered by Stephen and they’d all tweet JK.

The one voice that made a telling point was Loki whom I know and whom we commissioned to write for Newsnet before he became the anti-SNP brigade’s poster boy. Darren is talented. A one-off. Authentic. And I’m glad he’s getting a gig with STV. In his recent blog there he said more in one article than two years of poncy drivel from the journalistic crew mentioned above. He’s upset with the SNP having voted Yes and, as I understand it, will be giving both votes to RISE. I’m not surprised. He and I were on a programme during the anniversary of the indyref and he’d already moved away from the SNP, and possibly even independence, at that time. (I jokingly called him a Unionist).

But there is a flaw running through so much of this Nats-are-too-timid narrative. First of all, vote your own way and don’t be put off by anyone. Just don’t expect to get anyone elected by voting RISE. The electoral math means you’re more likely to usher in a Labour MSP, if you think that will help fight poverty. It is exactly the generational failure of Labour to address fundamental issues when in power that lost them the trust of voters. (They still did much but not enough). They were still at it in Smith – trying to keep welfare reserved and opposing employment law devolution.

If you accept the SNP case that a higher rate of tax would lose money, reduce a much-needed tax base, or at best deliver very little revenue, why play the Tories’ game of forcing Scots to pay more while they tie our hands with only a single principal tax power – the one most people understand best and which is regarded as toxic? Isn’t it Labour that has walked wide-eyed into the trap demanding that everyone pays more to cover Westminster cuts? That just makes Mundell’s day.

I agree that symbolism matters in politics but there’s a difference between that and tokenism. To play politics with taxes when it’s at best revenue neutral verges on gimmickry when Scotland is a long way from having the kind of control that allows our economy to diversify and grow. Even the powers we do have are undermined by market theology in London, so for example, our burgeoning renewables are sabotaged by the nuclear-mad Tories. And despite the best efforts of the excellent Iain Macwhirter and Dave Watson of Unison, who wrote a brilliant blog on it, I don’t believe the Scottish voters are queuing outside Waterstones to read Thomas Piketty.

Look, I know there are disappointments and policy shortcomings. The truth is that no government anywhere gets it all right and none is above criticism, including this one. But people don’t vote on individual policies. If that were true how would Labour have lasted so long? Folk used to say they’d stick with Labour no matter what happened because they felt comfortable, like buying the same newspaper. It wasn’t about individual issues. How could it be when they treated the unions with contempt, traded honours for money and ignored international law?

Most of us vote out of habit knowing our party isn’t perfect but regarding them as the best of a bad lot. Cynicism prevails and rightly so but eventually we have to choose. Scots will vote SNP in that knowledge and trust the judgment of Sturgeon and Swinney.

Just don’t let the siren voices trick you into thinking the decision on upper rate tax means the SNP are doing nothing about poverty. Instead of disinformation like KidsnotCuts – dishonest nonsense since not a single school will close and not a single child will lose out – do what I did and see how public services actually work where you are.

First I admit I’m glad about the council tax being fixed because my income is fixed too. I’m ready for a change in the system but am scared how much it will cost me.

Our kids attend a new school – built without PFI contracts – which is so good it attracts parents from across the city.

When I go to my health clinic, I cross the road and get a free bus journey on my over 60s card.

It takes me to one of the best hospitals in Europe where, once I’ve worked out how the lifts work, I meet the same expert consultant I’ve had for five years.

I get four drug prescriptions that I collect free from Mr Jandoo, the pharmacist.

Round the corner they’re building a new housing block for students attending our world-leading universities where I hope my kids will go one day – free of charge.

I pay £6 a week as a community member of the brand new university gym.

I drive through a north Glasgow transformed with new housing, an impressive joint campus school at Ruchill – from the council that says it’s short-changed by the government – past a successful college and into what many (sorry, you weegies) would call sniper’s alley…Saracen Street is the centre of one of the worst health blackspots in Europe. But on the right hand side is a gleaming new building that houses a full array of social health services which is working to transform the lives of the poorest. Two female doctors are the heroes who make it tick. Read about it here.


Another centre like it is going up off Maryhill Road. Further down that same street there is an early years centre which is run as a charity but has direct government input and has been adopted by them to introduce a version of what was England’s, and Labour’s, successful SureStart system. It engages with families even before the birth of a child to begin helping to improve their life outcomes in what is still a largely depressed area. The government, with our tax pounds, is fighting poverty on the ground in a programme to lift the next generation up. They do this with the voluntary sector, with local government and other organisations through 116 voluntary groups to tackle inequalities and poverty, support parents and carers, improve learning and build skills and help thousands of children, families and communities across Scotland.

Everything from drug use to school attainment, from healthy birthweight to suitable housing is covered. Every day, every week. You don’t end poverty with a political gesture that at best raises in the short term a few million quid. You do with direct intervention, hands on help driven by political will and in the knowledge it will take at least a generation to reap rewards. The work to rescue Scots from poverty goes on daily in ways you rarely see in the media. It isn’t their agenda when the fun is in kicking the Nats.

So those who think a party still not a blip in the polls will do more than the SNP to end poverty can vote accordingly. The quiet and often unsung work will go on regardless. And don’t dismiss the wider political point that, while it may make you squirm, the unbending middle class Unionists we need to win over to independence are still there. Raising taxes would confirm every prejudice they have imagined about the SNP’s real intentions – to take away their pensions and hard-earned cash. They regard the tax move as sensible and pragmatic economic management – the very characteristics most likely to convert them eventually to the cause. The cause that remains the goal of all nationalists.

If you want an illustration of that No attitude, imagine what those middle class folk made of Sean Clerkin and the Scottish Resistance together with Comrade Tommy reading their updated Declaration of Arbroath on the Concert Hall Steps. That was a vivid reminder of how many of them still like to regard the independence movement…as angry cranks harking back to the past and bereft of any economic competence.

So believe the SNP doesn’t do social justice – as the media commands – or open your eyes to the evidence around you. I’m keeping the faith, and both my votes, for one party.

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Panama? It’s Old Hat

I was going to blog yesterday but instead had to handle an urgent call from my accountant in Panama. Sounded a bit worked up. Seemed to be saying I’d be exposed as a tax dodger. But I said there’s more chance of me being the Prime Minister of Iceland.

I must say I’m with the parody Tory MP account which declared the Panama Papers were only shocking to those who didn’t work hard enough to have tax haven accounts. It’s well known that Tesco shelf stackers work harder than anyone often overnight and all of them have secret hoards of untaxed cash stashed in Jersey. Same with our window cleaner Brian who is so greedy he has three jobs. I await his name appearing alongside Putin’s.

It’s typical of the Left to make a ballyhoo out of wealth genuinely earned and honestly hidden in tax shelters. How do think the poor in Panama survive and what stops them getting on boats and heading for a benefits bonanza in Britain? The toxic mixture of jealousy and ignorance brings out the worst in the Guardian types. And just remember – Polly has a villa in Tuscany.

This story of course is the triumph of capitalism. It brings together in one jungle-covered snake pit famous only for through transit (via the canal) every double-dealing, grasping racketeer from communism, progressive left-leaning democracy (600 Icelanders on the list out of 320,000 population) and from every ethnic background in relentless pursuit of profit. To achieve it they leave their morals at the door, their country in debt and their humanity compromised – imagine knowing that you are cheating everyone you deal with. It is the apotheosis of greed and the ultimate expression of right wing zealotry in which you claim anything and everything you can get away with. It’s a stretch but it is on a continuum along with letting thousands of steel jobs go in awe of ‘the market’, even when the market is rigged as it is in the case of Chinese steel and in the case of those with the means to cheat their fellow citizens by avoiding paying their share of tax.

In normal times the conjunction of these two events – a Tory government caught chillaxing over 40,000 jobs linked to a strategic industry and the proof of global larceny by the rich, including the Prime Minister’s family, should produce a harvest for Labour. But we all know it won’t. Not in Scotland where Labour already lies on the slab awaiting dissection. And not in England where the bitter divisions and clueless leadership make Corbyn, thus far, unelectable.

Britain carries a heavy responsibility as the ‘ruler’ of most of the tax havens but this is a matter now for global oversight by the institutions that always claim world respect for their powers of regulation – the World Bank, the IMF, the G20. There can be no escape from coruscating action now to end the rip off. People around the world struggle to survive while the elite line their pockets and press the No thanks button under Pay Your Taxes. Here we harass the disabled with the bedroom tax, lecture workers about tightening belts and retain as Chancellor someone whose family company doesn’t pay corporation tax.

This is corrosive when pensioners see the state take 20 per cent of their income, or confront the stark truth of paying another 1p in the pound. It is corrosive too because it shakes the faith of populations in the institutions that govern them. By sanctioning responsibility-dodging they make it less likely those minded to criminality will see any point in obeying the rules of society. Fascinating to think how Cameron started by telling us we were all in this together and yet everything he has done since mocks the very idea. They are all in together – every hook and crook with contempt for civilised society.

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