Gloves off in Scottish sovereignty debate

WORLD VIEW:A lot of skirmishes, noise and thunder off, but at last the campaign is on. The run-up to next year's referendum on Scottish independence has experienced a first heavyweight exchange of political fire on the substance of the issue rather than procedures between the UK government (with no constitutional restrictions on government spending on campaigning) and Alex Salmond's Scottish Nationalist Party (SNP).

Although polls suggest that independence still only has minority support – as low as 23 er cent in one recent poll – no one is taking any chances.

Expert reports have been published by each side, one on the implications for an independent Scotland of membership of international bodies, and the other from a “fiscal commission” on the macroeconomic framework within which an independent Scotland would operate.

Both implicitly address, with different conclusions, the realism of Salmond’s cautious vision for waverers of continuity and a relatively simple transition that could be quick and largely seamless, with the potential for only minor dislocation, not least of the two economies. Stay in the EU, and sterling, and Nato . . .

His contention that Scotland would remain part of the EU while it negotiated its new status, has largely been sunk, despite protestations by his deputy Nicola Sturgeon, by the UK government’s published legal advice from two academic lawyers, James Crawford of Cambridge University and Alan Boyle of Edinburgh University. They argue that Scotland would be forced to renegotiate its EU and UN membership and that of scores of international bodies – not to mention many of the 14,000 treaties to which the UK is party – in a process that would take years to complete.

The Crawford/Boyle opinion argues that there is a presumption in international law that a secession like Scotland’s does not create two new states, but one new state and a “continuator” state to which all the previous state’s international relationships adhere. “The presumption of continuity despite even drastic territorial change is illustrated by imperial powers that have lost territory – including the UK, whose continuity is not questioned despite its loss of not one but two global empires. Likewise, Turkey was regarded as the continuator of the Ottoman empire.”

The report also cites the “the separation of 26 Irish counties in 1922 to form the Irish Free State, which was treated just as a change in territory rather than a break in the UK’s continuity. There is no indication in the articles of agreement for a treaty between Great Britain and Ireland of December 6th, 1921, that either party questioned the UK’s continuity.”

European Commission president José Manuel Barroso has also insisted that part of an existing member that split off would be treated as a wholly new state and new applicant. But some experts, including Scottish former European Court of Justice judge Sir David Edward, believe he is wrong. They insist the EU is pragmatic and flexible enough – particularly since there are no clear rules – to devise a mechanism that protects Scotland’s de facto membership while it thrashes out its precise terms.

Membership of most of the organisations it would want to rejoin would be relatively simple. In the EU case, however, despite the reality that Scotland already is committed to the “acquis”, the 80,000 pages of common laws and administrative procedures that is a prerequisite of membership, it would require unanimity of member states – not guaranteed – and would have difficulty negotiating its right to British opt-outs and its “share” of the UK rebate.

While a commitment to working towards euro membership is expected, albeit not required, of new members, the SNP’s fiscal commission is in no doubt that a currency union with Britain must be retained, not least because exports to the rest of the UK are about 140 per cent bigger than overseas sales. Among its authors are the Nobel prizewinner Prof Joseph Stiglitz, along with our own Frances Ruane, director of the Economic and Social Research Institute .

On growth it argues: “It is clear that over the long term, Scotland has not completely fulfilled its economic potential.” And that “fundamentally” the problem resulted from the current constitutional arrangements, which meant “the full range of economic policies cannot be tailored to the specific structure, opportunities and challenges of the Scottish economy”.

But the trouble with an argument between Salmond and London about how little would or would not change is that he risks undermining his own base. As one small business nationalist supporter put it in a letter to the papers last year: “On every issue raised, from Nato membership, to currency, to Europe, the SNP closes down discussion by saying nothing will change. A vote for independence seems to me to resemble a vote for a Little Britain. What is the point of that?”

psmyth@irishtimes.com