Friday 14 September 2012

Pseudo-legalistic bunkum

I’ve seen a few references recently to the question of EU membership for an independent Scotland.  According to some opponents of Scottish independence, any territory seceding from a member state would have to apply for membership anew, with no guarantee of acceptance.

They may be right about that as a conclusion, in legal terms at any rate.  Whether “secession from the UK” is the right way to describe Scottish independence is another question entirely.  Since the UK only came into existence as a result of the union between Scotland and England, there’s at least an arguable case that Scottish independence amounts to the dissolution of the union; leaving, in effect, two (or more) new countries, both (or all) of which might then have to apply for EU membership.
The situation with Wales is rather different.  Since Wales was incorporated into England, secession may well be a more accurate description (notwithstanding possible arguments about the legality of that original incorporation).
In reality, however, I’m fairly confident that realism rather than legalism would prevail in either case.  Whilst one or two member states might do a bit of huffing and puffing because of their own problems around territorial integrity (and of course Spain leaps to mind here), the member states would in practice accept the will of the people, and the details would be negotiated during the period (I’d guess at around three to five years) between a “yes” vote and actual independence.
EU membership is but one of a whole host of international agreements and structures which would require negotiated change.  The assumption that one part of the then former UK would automatically inherit all rights and obligations whilst others would need to start from scratch is an interesting perspective but seriously flawed.
More interesting to me is the political thinking behind the raising of this particular bogey.  Do opponents of independence really believe that they can counter the arguments of independence supporters by appealing to pseudo-legalistic arguments, and suggesting that the EU will somehow block the democratic will of the people?  It demonstrates a lack of understanding of what’s actually happening in Scotland as well as of the realistic attitude which tends to prevail in the EU - and a failure to engage with the underlying arguments.  It’s almost as though they are trying to lose.


Anonymous said...

Good point John. The pseudo legal argument is big in Spain. As if constitutions are written by god and can't be changed.

It's peculiar, to say the least, to hear Spanish policitians and Labour politicians in Wales such as Glenys Kinnock and Eluned Morgan, claim Wales couldn't have independence because the Spanish won't allow it. And the Spanish won't allow it because it's against their constitution.

Peculiar as the left wing have consistantly changed the constition on other matters - women's rights, gay rights, secularisation of society etc. So, changing the constitution on somethings is OK, but legally impossible in others.

There's also ETA's old argument which is the Spanish state would never allow the Basques to delcair independence. In this repsect ETA were partly right as the Spanish constution does charge the military with keeping the integrity of the state. The Spanish have also refused the Basques the right to hold a referendum - even a watered down one such as Ibarretxe's 'free association' plan a few years ago.

However, the Spanish were able to paint the Basques as hot-headed extremists, tarring every person in favour of independence (including Ibarrexte, of the Basque PNV party - a kind of SDLP in Northern Irish terms) as a supporter of ETA.

They can't do that with the Catalans because they are so obviously 'boring' and 'sensible' - in fact, that is their image within Spain.

In the end, as you say, John, the Spanish state can't stop a nation demanding a referendum on independence and recognising it. If they do they will have proven ETA right, but, more importantly they will have gone against the democratic will of a nation with pre-dates the emergence of the state.

It's the end of 'Spain' as a unified state, but not the end of the Spanish language, or Spanish football team, or Spanish culture. Spain will just be a smaller state. But Europe will be enriched with two or three new states - Catalonia, Basques and Galicia.

Anonymous said...

Looks like the hand of The Bilderberg Group is involved in this!

Pete said...

John; I normally would only respond to your posts but I'm appalled by what Anonymous reveals.
Anonymous states that some politicians are arguing that neither Wales nor Scotland can have independence because the Spanish won't allow it. What has happened? Is this what membership of the EU means? The will of the people must not upset Spain?
How can anyone, with any notion of the history and struggles of the people of the island of Britain accept that Spain must determine our future?
I don't suppose anyone has used the word "Spain" so many times in one post, but John! for God's sake, Spain?

Anonymous said...

What's the Bilderberg group and what's it got to do with this blog?

Anonymous said...

The Bilderberg group consist of influential people who meet in secret. They come from government, politics, finance, industry, labour, education & communications to plan/conspire for a world government. Check them out on wikipedia together with Trilateral Commission.

Anonymous said...

The latest comment on this theme came not from Labour politicians but EU Commission president Jose Manuel Barroso, who was reported in 'The Guardian' as suggesting that any state seceding from a member state would not automatically be a member of the EU.

On the one hand, the SNP argues that the UK would be dissolved by Scottish independence, and Scotland would be classed as a successor state automatically inheriting the UK's rights under international law. On the other hand, unionists argue that Scotland would secede on a similar basis to the Irish Free State in 1922: the UK would continue to exist in international law, albeit in truncated form. You pays your money and you takes your choice.

Secession from, or the break-up of, an EU member state is unprecedented. The possible fallout is so legally and politically complex and open to interpretation that most comment is pure - and usually partisan - speculation.

John Dixon said...


I agree; it's basically the point that I was making in the original post. The precise legal situation is open to debate and dispute, and will remain thus until tested.

"Secession from, or the break-up of, an EU member state is unprecedented."

That's entirely true, of course. Currently, it rather looks as though Belgium might turn out to be the trail-blazer here.

Personally, I'm convinced that political reality would ultimately outweigh the legal considerations; the other member states would accept the democratic decision of the people, and a sensible solution would emerge which matches their aspirations. Given the EU's recent history, there has to be a presumption in favour of enlargement (even if that's 'internal enlargement') rather than expulsion, although a lot of hot air might well be expended before getting to that point.

Having said all that, my real point was that trying to respond to a growing demand for independence in Scotland with legalistic arguments rather than debating the substance seems to be a pretty silly unionist response.

Anonymous said...

I think honestly we will have to wait and see. But the EU is not going to want to lose Scotland (or indeed the remainder of the UK). The EU is an expansionist organisation. It will bend over backwards to accommodate Scotland. An injection of democracy might also be what the EU needs. For too long the key decision-makers in the big states have had an arrogant view of Spain's integrity for example.