Where is Nicola Sturgeon? This was the question on the lips of her constituents in Glasgow Southside earlier in the autumn when they discovered that the First Minister’s constituency office had moved to a neighbouring constituency, leaving just a telephone number behind. Apparently, it had succumbed to an infestation of rats of a kind all too familiar to her constituents in Govanhill, at which point she legged it. Since then she has been conspicuously unwilling to come and talk to the ordinary people of Govanhill about the rats and the conditions which have allowed them to flourish.
Now the people of Scotland as a whole are asking the same question: where has she gone?
Perhaps she is wrestling with the £14.8billion deficit, that is Scotland’s overall “net fiscal balance” – the difference between overall revenues and overall spending. We might imagine her in an ivory tower at Bute House in the wee small hours doing her sums on the back of an envelope as she tries to work out which of her new powers of taxation to deploy to fix this problem and which spending cuts will have to be made. Or perhaps she is spending her days dealing with the collapse in the oil price and its wider impact on the Scottish economy and people? Given that this factor has completely torpedoed the case for independence set out by the SNP in November 2013, we might expect much of the First Minister’s time to be given to working out how to mitigate this particular catastrophe.
Or perhaps she is just getting on with the mundane business of, well, running Scotland, all those boring but necessary things which go towards making Scotland prosperous and an agreeable place to live in.
Unfortunately for the people of Scotland, our First Minister has other preoccupations. So miffed is she by the double whammy of Scots rejecting independence by a substantial margin of 10.6% followed by the British people voting by a substantial margin to leave the EU that she has been spending time with her lawyers. Or rather, she has been spending time with people who are filling her head with a lot of nonsense about international law.
Starting with the Referendum campaign the SNP has been coming up with a variety of ways in which Scotland, upon independence, will seamlessly remain a member of the European Union or, at least, now that independence seems farther away than it has been for decades, how Scotland might remain in either the EU and its single market or get itself into the European Free Trade Association (EFTA) and thus into the European Economic Area which is a sort of anteroom for the EU.
The end product to all this time spent thinking up new ‘Anything-but-the-UK’ has been a series of fantasy schemes that make Walter Mitty look grounded and rounded.
Fantasy Number One was that peddled at the referendum: that upon quitting the UK, Scotland would seamlessly remain in the European Union. We have heard rather less about this of late, mostly because it is legal bosh.
When a State separates into two, there are two scenarios.
Firstly, one of the emerging entities becomes the successor state to the original state and assumes all its international positions and obligations such as membership of the UN and as signatory to International Treaties. The other entity becomes a new state. This is what happened when the old USSR split asunder: Russia was swiftly recognised as the successor state because of its relative size, population and economy; the remainder, such as the Uzbekistan or Georgia, became new states and had then to go through the process of applying to join the UN and signing up to those International Treaties that either form part of customary international law (e.g. The Geneva Conventions) or which were of advantage to the new state.
The second scenario is when a state splits into two or more states of equal size: think Czechoslovakia or Yugoslavia. The Czech Republic and Slovakia were very similar and thus were both treated as new states. Serbia-Montenegro sought to grab the mantle of the former Yugoslavia as its successor state but the international community would not recognise it as such.
Given the relative sizes of the remainder of the UK and an emergent Scotland, it is unthinkable that the international community would treat Scotland as the successor state to the old UK. If Scotland leaves the UK, its new iteration will be as a ‘new state’. And if at that time the UK was still in the EU, it would be Scotland that had left the EU at the moment of independence.
That simple bit of international law is why we have heard very little of this fantasy since the referendum. If that is what happened, Scotland would, like Serbia, Bosnia and other little states around Europe, have to apply for admission ab initio. This is because Article 49.1 of the Treaty on European Union says that any European State which respects the values referred to in Article 2 of the Treaty and is committed to promoting them may apply to become a member of the Union.
So first, Scotland would have to become a ‘state’, i.e. get independence. Then it would have to negotiate its way into the EU. That would take several years and require Scotland to sign up to the Euro, Schengen and the Brussels Diktat. No wonder it has been taken off even the back-burner.
Fantasy Number Two emerged in a report by The Times at the end of October:
Nicola Sturgeon is expected to publish plans within the next few weeks for Scotland to become the official successor state to the UK and take its place within the European Union.The blueprint will feature plans for Scotland to forge a soft Brexit on its own within the UK. But it is also expected to include plans for Scotland to remain part of the EU if a separate Scottish Brexit deal cannot be negotiated, not just as an independent nation but as the UK’s “successor state”.
This is a follow on from Fantasy number one above. Having realised that that wheeze was legal mumbo-jumbo, the next one dreamt up by the SNP seeks to turn international law on its head and have Scotland declared the ‘successor state’ to the UK and thus be the part which remains seamlessly in the EU. The rest of the UK would thus be a ‘new state’ with all that implies vis-à-vis our standing in the international community.
Again, this is so much bosh. The idea that the world would recognise Scotland as the ‘successor state’ to the old UK is, quite simply, ludicrous. The international community is hardly likely to agree to a nation of 5.5. million people and a GDP (nominal) of $245 bn (which would equal 44th in the world, below the Phillipines and Venezuela, another Socialist Nirvana) supplanting the UK with its population of perhaps 65 million (but who knows!) and a GDP (nom) of $2.65 trillion, not to mention its status as a nuclear power and as holder of a Permanent Seat (and veto) on the Security Council of the UN.
If it happened, Scotland, as successor state, would have to assume the bulk of UK international debt and the lion’s share of the UK’s international obligations. It would have to negotiate a new deal on its EU contributions, pending which, as the UK’s successor, it would have to stick to our current terms of membership. Scotland would thus be bankrupt in a few weeks. This would make the Parcel of Rogues look like a respectable financial institution.
Still, it could then have fun as one of the Permanent Members of the Security Council wielding the veto against that awful Mr. Trump. If it could afford the air tickets to New York, that is. But then, the Anglophile Mr. Trump is very unlikely to go along with this nonsense, so it is not going to happen.
Seriously, all that apart, the bibulous Jean-Claud Juncker and the rest of the Brussels Junta may be very, very stupid, but they are hardly likely to be so stupid as to go down this route at the cost of very seriously angering the remainder of the UK which in reality would remain a major trading, political and diplomatic partner of the EU. And that is before you factor in the implacable opposition of such as Spain which does not want to give any encouragement whatsoever to its separatist regions such as Catalonia which seek to breakaway.
So, on to Fantasies Numbers Three and Four. The Times, which clearly has listening devices in the Ivory Tower, now reports that:
Scottish ministers are considering a number of radical plans to give Scotland a more Euro-friendly Brexit deal than the rest of the UK, including Scottish “passports” and joining Norway in a European free trade area.
Nicola Sturgeon has always insisted she would look at every option in trying to keep Scotland’s ties with Europe.
It has now emerged that giving Scots special rights to travel and work in Europe — guaranteed with documents to go alongside their passports — is one possibility. Another option could see Scotland joining the European Economic Area [EEA] and adopting the same sort of relationship with the EU that Norway enjoys.
The first part of this would see Scotland issuing its own National Insurance numbers which would be doled out to every Tomás, Riccardo and Henryk who asked nicely for one as well as to Scots resident in Scotland who would thus be allowed freedom of movement in the EU.
How that would function with Scotland still in a UK which had left the EU, Single Market and all, is not clear. But it is difficult to see how it would work or be policed. And the UK is hardly likely to agree to this, given that it would create a free movement backdoor into the rest of the UK and give rise to a huge market in bogus residents from elsewhere nabbing Scottish NI numbers.
Finally, the EEA wheeze: that too would stumble at the first hurdle. The EEA is the agreement into which some members of the European Free Trade Association (EFTA) have entered to become members of - and to pay into – the Single Market: Iceland, Lichtenstein and Norway.
This scheme would require Scotland to be a member of EFTA if it could not immediately get into the EU. Therein lies the problem. Membership of EFTA is, under Article 56.1 of the EFTA Convention, open to States: “Any State may accede to this Convention….”. Scotland would have to be a sovereign independent state to enter EFTA under its convention. It is not open to regions or parts of States. Scotland is not currently a state.
That means Scotland would have to have a second independence referendum that would reverse the substantial majority against independence in the first one. Right now, there is no obvious enthusiasm – except perhaps in the Bute House Ivory Tower – for either a second referendum or for independence.
None of this rubbish is going to work. Instead of thinking up yet more fantastic schemes, The First Minister needs to get over losing the independence referendum and being on the losing side of BREXIT and buckle down to the more humdrum matters of day-to-day administration and politics in the real world."