UK Constituent Parts (EU)

William Bain Excerpts

Wednesday 21st November 2012 Westminster Hall

[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.

[Mr William Bain (Glasgow North East) (Lab)]

My hon. Friend is making a powerful argument. I remind her that the most recent entry to the EU, Croatia, had to satisfy stringent tests about guaranteeing bank deposits, the independence of its central bank, monetary policy and financial security. Does she see anything in any of the plans produced by the Yes Scotland campaign that deals with any of those points?

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[Mr William Bain (Glasgow North East) (Lab)]

I congratulate my hon. Friend the Member for Glasgow North (Ann McKechin) on securing this debate and on speaking with such authority and passion in her opening remarks. One of my best decisions since being elected to this House three years ago was last November when I asked the Commons Library to publish a paper on the implications for Scotland of the debate around separation, in particular what it meant for continuing—or perhaps not continuing as we have uncovered in this debate—EU membership. Indeed, many of the points in that document will form the basis of the rest of the debate today.

As a member of the Labour Movement for Europe, I care passionately about our having a positive engagement with the European Union. Scotland can best protect, embrace and progress its national interests as part of a large state—the United Kingdom—which has a good degree of influence, and which, under the new arrangements, will have proportionately more votes within the Council.

The process for new accession countries—which Scotland would clearly be, according to the consensus of advice coming from the European Commission and the important statement from the Foreign and Commonwealth Office a couple of weeks ago—is arduous. As we explored in a debate in the main Chamber a couple of weeks ago, Croatia went through stringent steps in establishing the independence of its central bank, to show that proper procedures were in place to control its financial system, and to prove that it had a system to regulate and guarantee deposits. None of those concepts has been dealt with in the proposals from those who argue for Scotland to separate from the rest of the UK. Indeed, none of the countries that has acceded to the European Union has relied on the central bank and financial institutions of another state to show that it has sufficient financial independence in its own territory. The position put forward by the Scottish Government simply does not add up.

I want to put on record a couple of points that are important in relation to international constitutional law—perhaps a reference back to my old life before I became a Member of this House. The Scottish Government have relied on a couple of arguments: one in relation to the Vienna convention; and the other in relation to EU citizenship.

First, on the Vienna convention, the Scottish Government have said that Scotland would sign up to all the treaty commitments that the United Kingdom has at the moment, but, frankly, that is fatuous. The Vienna convention is primarily concerned with the process of decolonisation. Indeed, the International Law Commission withdrew a category of quasi newly independent states to deal with cases of secession. A new state is not entitled automatically to become a party to the constituent treaty and a member of an organisation as a successor state simply because at the date of secession, its territory was subject to the treaty and within the ambit of the organisation. That principle, which is recognised in article 4 of the Vienna convention and is the declared legal opinion of the International Law Commission, is entirely contrary to the position of the Scottish Government.

Citizenship of the EU is not distinct from being a citizen of the member state. It does not provide a legal basis for re-entry to the European Union. As other Members have said, that must come about as a result of a process of negotiation and unanimity with what will soon be 27 other member states. When the Soviet Union was dissolved, only Russia was able to succeed to most international agreements. [Interruption.] I am not saying that the United Kingdom is remotely like the Soviet Union. It would be absurd for any Member of this House to make an assertion that the two states were in any way comparable.

This debate matters hugely. The referendum must proceed on the basis of fact and law, not assertion and bluff. The debate has been important in distinguishing those two characteristics this morning. I care passionately about our future. If we want Scotland to thrive within Europe, that means that we will continue—and I hope that people will vote to have us thriving—within the United Kingdom.

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[Mr Swire]

The hon. Gentleman was not even in the debate.

The voting weight, capability and credibility of the UK’s negotiations in the EU are mobilised in the service of all UK citizens. However, that does not mean the devolved Administrations are involved in EU policy only when we are coming up with an agreed negotiating position for the UK. The Government have been open to having Ministers from the devolved Administrations in the room, where appropriate, during the negotiations themselves.

The current devolution arrangements allow the special circumstances of Northern Ireland, Scotland and Wales to be championed by one of the largest and most influential member states. Scottish independence, with a complex accession negotiation and no guarantee of favourable terms of membership at the end of it, would inevitably put a stop to that. Those advocating splitting off from the UK need to be clear about what that means in practice and to use evidence to set out their position.

As we have heard this morning, some advocate a fundamental reworking of the existing constitutional settlement that so benefits the people of the UK. Those who argue for an independent Scotland suggest that only independence will give their nation a voice in Europe. Their argument is underpinned by the assertion—it is only an assertion—that an independent Scotland would simply continue in membership of the EU, automatically inheriting the same arrangements that pertain to the UK now.

We learned only a few weeks ago, and we heard again this morning—the SNP was forced to reveal this following a freedom of information request—that it had not previously commissioned any legal advice on an independent Scotland’s place in the EU. Yet, the SNP has been making assertions that it had for several years while in government. Many will find it absolutely astonishing that while seeking to make its case for splitting Scotland from the UK, the SNP has been basing its case on unfounded assertions, rather than cold facts.

The hon. Member for Perth and North Perthshire (Pete Wishart), whom I like very much indeed, referred to his earlier musical career in Runrig. He will remember a song, which he may have written, called “The Message”. It says:

“You take your message to the waters

And you watch the ripples flow”.

Perhaps it is time he and his colleagues made sure that that message was backed up by substance and fact.

I do not need to remind hon. Members that the UK has, over the years, managed to negotiate exemptions from membership of the euro and the Schengen common visa area, ensuring that the UK can maintain control over its monetary and border policies.

[Mr Bain]

Will the Minister give way?

[Mr Swire]

I am afraid I have no time. I will at the end if I have time.

In addition, hon. Members will be only too aware of the importance of the UK’s rebate, negotiated with great skill and determination more than 25 years ago. The rebate continues to ensure that the UK taxpayer is relieved of some of the burden of supporting some of the most imbalanced parts of the EU budget, which is of great concern to us all at the moment.

The UK therefore has a permanent opt-out from the euro and from the Schengen border-free zone; a permanent rebate on our net contributions to the EU budget; a choice whether to join new EU laws in justice and home affairs; and a protocol on how the charter of fundamental rights applies to the UK. However, if Scotland left the UK and applied to join the EU, all those issues would be subject to negotiation, and there is no guarantee whatever that it would obtain any of the special rights the UK currently enjoys.

It is precisely the UK’s weight and influence as one of the largest member states that has helped us to succeed in negotiating such arrangements. Scotland, like England, Northern Ireland and Wales, derives enormous advantage from them. I can see why the SNP is so keen to suggest to those voting in the referendum before the end of 2014 that those arrangements would simply continue in the event of independence, as if nothing had changed. However, the fact is that if Scotland became independent, everything would change. Independence is not simply an extension of the devolution arrangements that have worked so well; it is not merely a further point on the constitutional continuum; it is a fundamental change—a definitive split from the rest of the UK, and an irreversible step. Independence would bring devolution to an end.

As set out in the Foreign and Commonwealth Office memorandum to the Foreign Affairs Committee inquiry into a separate Scotland, independence would create a new state, one that would have to take its place on an already crowded international stage. England, Northern Ireland and Wales would continue the international legal personality of the UK; Scotland, having decided to leave the UK, would start afresh. The overwhelming weight of international legal precedent underscores that point. There are many examples. One is India and Pakistan: following independence, India continued the UN membership, and Pakistan joined the UN as a new state. Another, as we have heard, is the USSR: Russia continued the legal personality of the USSR, and the other former Soviet Union states were treated as new states. There are also Ethiopia and Eritrea, and Sudan and South Sudan.

The new state would need to decide which international organisations it wanted to belong to, in the context of its overall foreign policy. Obviously, it could not simply assert its membership of any of those organisations. The most likely scenario by far is that an independent Scotland would have to apply to join the EU as a new state, involving negotiation with the rest of the UK and other member states, the outcome of which cannot be predicted.

Scotland would no longer be represented through a permanent seat on the UN Security Council. Nor would a separate Scotland qualify for the G8 or the G20. In answer to the question from the hon. Member for Wolverhampton North East (Emma Reynolds) about the WTO, there have been no discussions with the Scottish Government on the issue. We are not in the business of pre-negotiating, as we do not believe the people of Scotland will vote for independence.

The UK Government are not alone in taking a factual and legally based approach to the issue. José Manuel Barroso, the President of the European Commission, made clear:

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

Recent correspondence between the Spanish Government and Commissioner Reding on the issue also supported that interpretation.

In simple terms, an independent Scotland could not just assert that it would be a member of the club; the other members would need to agree as well. The comments of the Spanish Foreign Minister, José Manuel Garcia-Margallo, to the Spanish Parliament on the 23 October must be noted:

“in the hypothetical case of independence, Scotland would have to join the queue and ask to be admitted, needing the unanimous approval of all Member States to obtain the status of a candidate country.”

The Spanish Foreign Minister was referring to the list of candidate countries wanting to join the EU, which include Iceland, Serbia, Montenegro and Turkey. Those are the remarks of a Foreign Minister of a major EU member state with an obvious interest in this issue. The Scottish Government must be prepared to respond and to be up front about the uncertainties surrounding their position.

An independent Scotland would not, therefore, simply continue automatically in membership of the EU. The EU treaties would have to be amended to allow it to join, and that would involve a negotiation. What terms would Scotland secure? Would it be able to avoid the commitment to join the euro or the Schengen area, which every new member state since 1992 has taken on? The simple answer is that we do not know—none of this is clear.

In contrast to the SNP, the UK Government are taking a transparent approach to analysing the legal issues, including by engaging with eminent legal experts. On 2 October this year, the Advocate-General for Scotland—one of the UK Government’s three Law Officers—delivered a speech at the Edinburgh Centre for Constitutional Law, setting out the Government’s initial view on the legal questions. The Government have also made it clear that we will provide detailed evidence and analysis so that people in Scotland can make an informed decision about whether to stay in the UK and about the implications of leaving it. We will publish that analysis over the course of 2013.

It is the clear position of the UK Government that Scotland is better off in the UK, and the UK is better off with Scotland in it. We are backing up that position with a robust programme of analysis and evidence. Those advocating independence for Scotland are making assertions and pursue their argument with no solid foundation in fact.