First there was legal advice, then there wasn’t, now there is. Ian Swanson explains why it doesn’t matter anyway
LEGAL advice – it sounds important, reassuring and robust, something to be relied upon; something others will trifle with at their peril; a sure defence in time of trouble.
Deputy First Minister Nicola Sturgeon sparked a furious debate with her revelation that the Scottish Government had not sought legal advice on the question of an independent Scotland’s future membership or otherwise of the European Union, despite Alex Salmond seeming to say the opposite in a TV interview earlier this year.
Labour branded the First Minister a “bare-faced liar”, then Mr Salmond set up an inquiry to clear his name. Labour leader Johann Lamont now wants a judicial inquiry and the Lord Advocate has turned down Tory demands to answer questions in parliament.
While Ms Sturgeon now seeks that legal advice, the two sides in the independence debate make their assertions about what a Yes vote would mean for Scotland’s future in the EU.
The No campaigners suggest Scotland would have to reapply for membership; other member states like Spain and Belgium might put obstacles in the way for fear of encouraging their own devolved areas to go for independence; and the opt-outs which the UK currently has, from the single currency and the Schengen free movement area, would be at risk.
The Yes side insists Scotland would unquestionably continue in the EU; the country would for the first time have its own seat at the top table; and there would be no question of being forced to join the euro.
Both sides cite eminent legal and constitutional experts to support their claims. What will the official legal advice to the government say? Who knows. In line with convention, the public will not get to see it – though the government assures us its white paper on independence a year from now will be “fully consistent” with whatever it contains.
But in the end it almost doesn’t matter what the legal advice says because the decision on Europe’s acceptance of an independent Scotland would be a political one, taken at that time, by the 27 member states. Whatever the lawyers have to say will be of only secondary interest in the process.
Both sides accept there would have to be negotiations, if only because Scotland is not currently named in any of the treaties and decisions would have to be made about how many Scottish MEPs there should be and so on. Whatever is agreed would then have to be ratified by the parliaments of all 27 member states.
One European expert says: “It will all be down to the European Council – the heads of government from all the member states – that’s where the decision will be made. And they’re unlikely to tell you in advance.
“People want a cast iron guarantee and they are not going to get one on this issue. All 27 heads of government will have to get round the table to discuss it.”
But that won’t stop the arguments now under way, as each side tries to persuade the public to accept its take on this issue, as on so many more.
The referendum battle is essentially between a Yes campaign, led by Mr Salmond, which is trying to create a feeling of confidence about Scotland’s status and prospects, even if some of that confidence is built on shaky ground, and a No campaign, led by Labour’s Alistair Darling, which wants to raise as many doubts as possible about how an independent Scotland would fare, however unfounded some of those doubts might be.
The row over legal advice has not helped the pro-independence campaign. It left Mr Salmond and Ms Sturgeon on the defensive, trying to explain away apparent contradictions.
But the anti-independence Better Together campaign has to cope with the disadvantage that its message is essentially a negative one.
Exaggerations from both sides do nothing to help voters make a good and lasting decision.
Court out over seeking legal advice?
• November 9, 2011: Scottish Government refuses Freedom of Information request from Labour MEP Catherine Stihler for legal advice on an independent Scotland and EU membership.
• March 4: Alex Salmond is asked in TV interview by Andrew Neil if he has sought advice form Scottish law officers on the issue. He answers: “We have, yes, in terms of the debate.”
• July 12: Ruling by Information Commissioner Rosemary Agnew says the government should reveal the existence of legal advice. The government later begins a court challenge to the ruling.
• October 23: Nicola Sturgeon reveals to the Scottish Parliament that no specific legal advice had been sought, but said she would now seek such advice. She drops the court action. Labour brands Mr Salmond a “bare-faced liar”.
• October 25: Alex Salmond asks former top civil servant Sir David Bell to investigate whether he has breached the ministerial code in his behaviour on the issue.