UK Constituent Parts (EU)

Mike Weir Excerpts

Wednesday 21st November 2012 Westminster Hall

[Ann McKechin]

My hon. Friend makes a good point. If Scotland were not part of the EU in a post-separation scenario, obviously its trading relationship with the rest of the UK would be in question—what criteria, tariffs and so on would be in force? Scotland’s economy relies heavily on having a stable export market, and many thousands of jobs depend on foreign trade, but the manner in which the Scottish Government have twisted and turned at every corner to avoid a clear answer as to what legal advice they had on such questions can only corrode public trust. I shall give way in the hope that the questions may be elucidated.

[Mr Mike Weir (Angus) (SNP)]

I am listening carefully to what the hon. Lady is saying but, given the increasing Euroscepticism in the UK population and what is happening in this Parliament, how can she even be sure that the UK—with or without Scotland—will be a member of the EU in the next five to 10 years?

[Ann McKechin]

The hon. Gentleman may be surprised to know that on that issue I am united with them. The quality of our alliances and partnerships is what will allow Scotland to succeed, which is why I want to be part of a strong European Union, as much as I want to be part of a strong United Kingdom.

Let us return to the question of our status in Europe. Every time that the Scottish Government have been asked about the question of status, they have always sought to give the firm impression that continued EU membership was guaranteed and that no real material change in membership obligations would result from separation. One example of that sorry story is the interpretation of the Scottish Government ministerial code. That document was apparently altered—in a way that begs even more tricky questions—between the FOI request being made and the truth being forced out last month. Paragraph 2.35 of the code states, and I emphasise the first sentence:

“The fact that legal advice has or has not been given to the Scottish Government by the Law Officers and the content of any legal advice given by them or anyone else must not be revealed outwith the Scottish Government without the Law Officers’ prior consent. The only exception to this rule is that it is acknowledged publicly that the Law Officers have advised on the legislative competence of Government Bills introduced in the Parliament…Views given by the Law Officers in their Ministerial capacity are not subject to this restriction.”

I am grateful for the comments made by Ian Smart, the former president of the Law Society of Scotland, in a recent blog, which points out the revelation that legal advice given by “anyone else”—not the Scottish Law Officers—does not require the consent of the Law Officers; only the content of that advice must not be disclosed. Ian Smart said:

“And that is, on any view, deliberately the way the code reads for otherwise the first sentence would be the much simpler.”

The First Minister, however, in his interview on “Scotland Tonight” four weeks ago stated:

“That’s quite clear in the Ministerial code. It’s both the fact of whether it exists, and the content. I would need to clear it with the Lord Advocate if I wanted to say that I had not sought legal advice.”

That is simply not the case if we read the code accurately. Given the outcry about his remarks in the now famous TV interview with Andrew Neil back in March, we might have thought that the First Minister would have taken the opportunity to reread his own ministerial code before rushing into the TV studio. The tricky question that needs to be answered now is whether the First Minister sought legal advice from “anyone else” before that FOI request or his interview with Andrew Neil in March. If so, who was that from and what was said?

There may be some clues. On Tuesday, 30 October, the Lord Advocate wrote to Ruth Davidson, MSP. The third paragraph of that letter contains an interesting statement:

“As was made clear by the Deputy First Minister the Scottish Government has now requested specific legal advice from the Law Officers on EU membership. As you will be aware legal advice on many issues is provided by the lawyers in the Scottish Government Legal Department…but in relation to certain matters the Government will seek a legal opinion from the Law Officers. That is what is happening in relation to the matter of EU membership.”

That same afternoon, Nicola Sturgeon, the Deputy First Minister, summed up a debate on this very matter and, soon after 16.38 in the Official Report, said:

“Clearly, if ministers have sought legal advice, the law officers will provide that legal advice, so to reveal that legal advice has been sought from the law officers reveals the fact of such advice and puts us in breach of the ministerial code.”—[Scottish Parliament Official Report, 30 October 2012; c. 12755.]

Both of those statements cannot be true, however. Catherine Stihler’s inquiry remains whether the Government have been given any legal advice, and on that point there is still deafening silence.

The First Minister and his colleagues may argue that, when they make contentions on EU membership, they are speaking about evidence from a variety of experts—“in terms of the debate” is the phrase most commonly used—but that is not the same as legal advice. They know the difference. Some of the people quoted are not lawyers; some have died; and most of the statements seem to have been made prior to the Lisbon treaty, which made fundamental changes to the European Union’s constitution. None of those represent a legal opinion, and just as many eminent people disagree with those expert opinions, including no less a person than the current EU President.

Here is one simple question the Scottish Government should clarify urgently. Have they already had legal advice from their legal directorate? It is difficult to imagine that, when the Scottish Government issued their White Paper, “Your Scotland, Your Voice: A National Conversation” in 2009, they did not run it past their own legal department. That document contains examples of ambiguous phrasing in its comments about EU membership. I draw hon. Members attention to page 110, paragraph 8.12:

“Settling the details of European Union membership would take place in parallel to independence negotiations with the United Kingdom Government”.

That phrase sounds as though it were written by a lawyer, and as I am a lawyer and a member of the Law Society of Scotland, I speak with some experience. Will the Minister confirm whether his Department has received any information about whether the legal department was consulted on that document, and whether it asked his office for advice or information about EU membership if Scotland were to separate?

That brings me back to volatility. As other hon. Members have said this morning, the EU is undoubtedly experiencing the most challenging and volatile period in its history. Its fiscal policies are under constant stress, there is significant unrest in many regions caused by massive hikes in unemployment and cuts to public services, and there are major differences of opinion in the political leadership. That is where legal opinion hits realpolitik.

Yes Scotland’s latest leaflet states without reservation:

“We can all see the one thing holding us back—we let someone else take decisions for us.”

lf the Scottish Government want our country to remain part of the EU come what may—that seems to be what the hon. Member for Angus (Mr Weir) said—the painful truth is that other people will make decisions for us on how long the application process will take, the conditions for membership, the size of our contribution, our entry into the eurozone, and our entitlements under the common agricultural policy and the common fisheries agreement. As one small nation in 28, our negotiating position, at best, will be fairly weak.

[Mr Weir]

That is all very interesting, but has the hon. Lady bothered to listen to the news from Europe, where the Prime Minister is going to discuss the European budget? It seems that the rest of the EU is ganging up to cut the UK out of the EU, and to cut the famous rebate that everyone goes on about.

[Ann McKechin]

I thank the hon. Gentleman for proving my case about volatility and disputes in the European Union. Any union or partnership that lasts a long time has difficult phases, and this is one. He has proved my point that the negotiations will not involve simply providing a list—that is what the First Minister always seems to suggest—saying what Scotland would like and expecting people to nod and say, “That’s fine. Don’t worry. That’s okay with us.” That will not happen, and any attempt to try to prove the opposite shows the weakness of the argument.

On the national central bank and financial regulators, Croatia’s recent entry negotiations show that they are not tick-box exercises, and again there is no guarantee that other EU members would be attracted to the solution that the Scottish Government prefer at the moment of relying on another EU member to provide both important institutions, and that is if that EU member agreed to that in the first place.

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[Iain Stewart (Milton Keynes South) (Con)]

It is a pleasure to serve under your chairmanship, Mr Crausby, and I congratulate the hon. Member for Glasgow North (Ann McKechin) on securing the debate. Although it may not be a regular occurrence, I concur with a lot of what she said.

I confess that I have always been puzzled by the Scottish National party’s policy of independence in Europe, or whatever its particular slogan is at the time. Although I profoundly disagree with independence for Scotland, there is logicality in believing that Scotland should be a master of its own destiny: that it should break away from a currency, a monetary and fiscal union, and a political union, and decide matters for herself. I do not agree with that, however. I think that the union has been one of the most successful political, social and economic entities that the world has ever seen, and it would be a tragedy if Scotland split away from it. There is, however, logic in saying, “We want to be masters of our own destiny and decide policies for ourselves.”

What I find illogical is the argument that being in one union is so disadvantageous to Scotland that we should split away, destroying 300 years of shared history and experience, and then rush straight into an even bigger one. That is illogical, and I contend that in such a union, Scotland would have a far weaker influence than it currently has in the United Kingdom.

[Mr Weir]

I do not understand the hon. Gentleman’s argument. The UK is part of the European Union and has surrendered some sovereignty to joint decision making, but that is different from an encompassing political union, which some in the EU want. I presume that he is very much against that, but that is the position in which Scotland finds itself within the EU, and there is nothing illogical in seeking to get out of the United Kingdom in order to join together with other nations in the EU, to a restricted degree.

[Iain Stewart]

I am tempted to go down the path of having a debate on the wider issue of the EU’s direction—I am sure that my hon. Friend the Member for Stone (Mr Cash) would be only too happy to join in—but I think I might exceed my five-minute allowance. The point is that if Scotland became an independent member of the EU—I will come on to why that will not be a straightforward process—it would be joining an ever-deepening union. I do not want the United Kingdom to be part of that, but that is what Scotland would be forced to sign up to. Under the terms of the EU treaties, all new member states are obliged to make the political and legal commitment to join the economic and monetary union, and to adopt the euro as a currency.

[Mr Weir]

That is simply not the case. Under the EU treaties, a nation has to join the exchange rate mechanism II before moving on to the euro. ERM II is voluntary, and in the case of Sweden, it has made it clear that it is not moving towards the euro, although it joined the EU later. Scotland would be in the same position. There is no obligation on Scotland to join the euro.

[Iain Stewart]

I profoundly disagree with that analysis. Sweden is obligated to join the euro once it has satisfied the economic conditions. That is the position, and I disagree profoundly with the hon. Gentleman’s position. He has said nothing that dissuades me from the view that an independent Scotland would be sucked in to a full economic and monetary union, and that would not be in Scotland’s interests.

It is far from certain that Scotland would become an automatic, independent member of the EU. There is no precedent for a current EU member state splitting up into constituent parts, with the part that broke away becoming a separate member. Therefore, we must look at what the treaty on European Union says, and article 4.2 is clear that the EU must respect the fundamental, constitutional and political structures and the territorial integrity of a member state, which has exclusive competence in such matters. The EU cannot therefore recognise a unilateral declaration of independence by part of a member state. Furthermore, according to article 49, the hypothetical new state would need to request membership and attain the unanimous support of the European Council for that request, and have its membership approved through an accession treaty, to be ratified by the Parliaments of all member states.

If one looks at the political reality of other member states in Europe, that is far from a foregone conclusion. Would Spain, for example, agree to it with its issues in Catalonia and the Basque country? Would Belgium, whose constitutional integrity is under question, agree? I do not believe that that process would be automatic. I am not suggesting that Scotland could not become an independent EU member, but I ask at what time and at what cost. Croatia’s accession to the EU has been mentioned, and that has been going on for over 10 years. Slovenia made an objection to that process, and although it was overcome, it took time.

I ask again what the cost to Scotland would be. What uncertainty would be created for business at a fragile time for the global economy? What else would she have to surrender to get membership agreed? I believe that euro membership would be inevitable. What about Scotland’s budget contribution, which is a topical issue? The SNP contends that Scotland has a budget surplus in the United Kingdom. I think that issue is far from settled, but for the purpose of the argument, let us accept that the SNP is correct and that Scotland pays more into the United Kingdom coffers than she receives from it. Does that not mean that Scotland would be forced to pay a much higher contribution to the EU budget? Has that been factored into anyone’s calculations? I do not believe so. What about other issues, such as Schengen and the common fisheries policy? What influence would Scotland have to protect her current freedoms? It is all uncertain.

As the hon. Member for Glasgow North said, the Scottish Government are making it up as they go along. There is no certainty, which I believe we should have. The United Kingdom should remain strong and intact. The debate about our position in the EU is a broader question; personally, I want to get us back to more of a common market, and certainly not into a deeper political and monetary union. However, we are better off fighting this together and not splitting up into component parts, when we would have no certainty and Scotland’s interests would be subsumed into the wider interests of Europe.

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[Pamela Nash]

No, not the residual UK.

Earlier this year, Salmond declared that

“the negotiation on Scotland’s representation would be conducted from within the European Union.”—[Scottish Parliament Official Report, 19 January 2012; c. 5500.]

That is not impossible, but it is not automatic, and it would be a difficult negotiation. There is no need to take only my word for that; notable members of the European political community and academics have said the same over the past few months.

Accession would need to be approved by all 27—soon to be 28—member states. Although Spain has not confirmed that it would block an application from Scotland, it has said that we would need to join the queue. It is difficult to see how the Spanish Government could reconcile their position on Catalonia with a new Scottish state joining the European Union.

There is also the issue of the euro. Contrary to the proclamations of the hon. Member for Angus (Mr Weir), all new EU member states have been required to sign up to the eurozone. Sweden joined the EU in 1995, but it is still obliged, when conditions are met, to join the euro.

[Mr Weir]

Will the hon. Lady give way?

[Pamela Nash]

No, I will not give way to the hon. Gentleman, because his colleague, the hon. Member for Perth and North Perthshire, did not have the courtesy to give way to any of mine.

The UK is one of only three countries that currently benefit from an opt-out. The SNP has said that a separate Scotland could opt out of the euro, but the evidence suggests otherwise. There is also the small matter of the Schengen agreement, and of many other opt-outs from which Scotland now benefits as part of the UK. The Schengen agreement would involve passport controls at the border with England, as we have heard in the Scottish Affairs Committee. The SNP has simply dismissed that as scaremongering, because that does not fit with its campaign strategy, but the evidence again suggests otherwise.

In conclusion, this issue is too important for the people of Scotland to be continually misled from one side of the debate. I hope that today’s debate helps inform them, and helps them make an important decision in two years’ time.

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[Mark Lazarowicz (Edinburgh North and Leith) (Lab/Co-op)]

I congratulate my hon. Friend the Member for Glasgow North (Ann McKechin) on securing this important debate today. It is not surprising that those who have different views on the relationship between Scotland and the UK should also try to find different arguments to support their position about Scotland’s relationship within the European Union. There are arguments on both sides that draw on various legal authorities. The arguments put forward by people such as my hon. Friend the Member for Glasgow North East (Mr Bain) are much stronger than those that have been put forward by the SNP. None the less, I accept that arguments can be found from various sources to support different positions in the debate. Of course this is not just a legal and constitutional argument. Ultimately, whatever the legal position is, it is also a political issue that the European Union will have to face if Scotland were to become independent. Whatever side of the argument one takes, it is inevitably the case that if Scotland were to be independent, whether or not one regards it as one of the successor states to the UK or as a new state, there would have to be a new treaty. That is undoubtedly the case whatever one’s legal analysis of the position.

The new treaty would require a negotiating process, and we have heard today a number of the issues that would have to be clarified and resolved in that process. There are the institutional relationships and structures of the EU, internal matters such as the rota for which country takes over the presidency, and the number of MEPs and the number of votes. Even those matters have in the past been the subject of many years of negotiation in relation to new treaties.

There are also much weightier issues, such as the UK rebate and whether Scotland would succeed to some share of that, which would require substantial negotiation. There is also the common fisheries policy. Given the SNP’s position on fisheries issues over recent years, one assumes that it would want to see the repatriation of the common fisheries policy towards an independent Scotland. One cannot imagine that that is something that can be simply agreed within negotiations in a matter of weeks or months. It will clearly require considerable and lengthy negotiations as part of a new treaty. The same could be said of many other issues that have been referred to in this debate.

Such issues may eventually be resolved. However, in trying to resolve them, there are two factors that will have to be taken into account. As a strong supporter of UK and Scottish membership of the EU, I can say that the EU does not do things quickly. We all know that it does not resolve outstanding issues quickly, because it is a complex organisation with many member states.

[Mr Weir]

Following the precedent of Greenland, will the hon. Gentleman not accept that even if he is correct and there will have to be negotiations, those negotiations will be done not outwith the EU but within, as happened with Greenland when it wanted to leave the EU. Scotland will still be a constituent part of the EU after independence until negotiations are complete.

[Mark Lazarowicz]

That is an arguable position. I will not go into that debate now. My point is that there will have to be lengthy negotiations whatever happens. Moreover, wherever those negotiations take place in an organisational sense, they will be the subject of horse-trading and of give and take. Let us take, for example, the fisheries policy. If the SNP wanted to achieve its objective in relation to the fisheries policy, another country somewhere in the EU would demand something else. If the SNP were to get the opt out of Schengen, which it seems to want, someone else in the EU would want to achieve something else. Even with goodwill on all sides, which may be a matter of some question given that other member states might not wish to encourage easy secession, to put it mildly, from another member state, this is a process that will be lengthy and complex. That is why it is right to point that out and right to ask the question, “At the end of the day, would the benefit from leaving the UK be worth the substantial negotiations and the period of time that would be spent in undertaking those negotiations?” More importantly, it also means that it is only reasonable to ask another question: “What would be the outcome of this process?”

For the SNP to suggest that even asking those questions is in some sense disloyal to Scotland does a disservice to the people of Scotland, who are asking those questions themselves. They want to know at the end of the process what will be the relationship of Scotland with the EU? To know what that relationship would be, we need to ask the questions and we need to try to get some answers from the Scottish Government and the SNP. We then need to find out from debates and discussions with other European states what the likely response would be to the demands coming from the Scottish Government and the SNP if independence were to be supported in a referendum.

Once we have that information, the Scottish people can decide in the run-up to the referendum whether they should support independence or oppose it because of what I believe is the situation—the fact that we would be worse off in a smaller member state, even if that smaller state were able at the end of the day to enter into and complete negotiations, than if we were part of a larger member state, with all the negotiating strength that we have at the moment and that I would not want to see us lose.

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[Emma Reynolds]

That lack of transparency is of concern to all of us, and it has blown a hole in the credibility of what the First Minister has said on this issue.

The hon. Member for Perth and North Perthshire (Pete Wishart) has made a speech today, which I have had the fortune—or misfortune—to have read before the debate, in which he made some strange references to giant pandas and “The X Factor”, but remarkably he made no reference to the European treaties and perhaps more tellingly he also did not refer to any other European Union member state. If he had cared to take a look at them, he would have seen that those treaties make it very clear that new member states must apply for membership of the European Union. Article 52 of the treaty on European Union lists the members of the European Union, including the UK, and article 49 of that treaty states that new member states must apply for membership of the European Union. Moreover, as my hon. Friend the Member for Ochil and South Perthshire (Gordon Banks) has made clear, the European Commission President has also stated the clear facts. He has said recently:

“A new state, if it wants to join the EU, has to apply to become a member of the EU, like any state.”

[Mr Weir]

The hon. Lady keeps going on about new states, but the point is that Scotland is already a member of the EU. We have already cited the position of Greenland. Scotland is not a new state; it is already a member of the EU; we have rights as European citizens, as has been said by other experts; and we will not be starting from the same place as Croatia, which keeps being mentioned by Labour Members.

[Emma Reynolds]

I beg to differ with the hon. Gentleman. The four nations of the United Kingdom are a member of the European Union, by virtue of being part of the United Kingdom. I will quote another European Commission President, Romano Prodi, who was a very respected President. He confirmed that

“a newly independent region would, by the fact of its independence, become a third country with respect to the European Union and the treaties would, from the day of its independence, not apply any more in its territory.”

Beyond the pronouncements of European Commission Presidents current and past, there is the brutal truth that the SNP must face up to—that this decision about a separate Scotland’s membership of the European Union would be a political decision and one taken by all of the other 27 member states, who are soon to be 28.

I have to say to the hon. Gentleman—he should listen to this carefully—that, as has already been stressed in this debate, the pronouncements by the Spanish Foreign Minister are not encouraging. That is hardly surprising. My hon. Friend the Member for Glasgow North has already pointed out that the context in which we find ourselves in the European Union is one in which we are going through the most challenging and volatile period in European history. In September, 1.5 million Catalans took to the streets in Barcelona in an independence rally.