All of these quotes are from the Lords Committee on the Economic implications of Scottish Independence on 11th December 2012. This is my personal selection from a wide-ranging discussion. I hope to cover the full session in later blogs.
The 2013 White Paper
The culmination of the information we shall put into the public domain will be our White Paper next autumn, setting out our proposals clearly for the people of Scotland.
The process of transition
From a YES vote in 2014 though to independence in 2016, Scotland will remain part of the United Kingdom as we put in place the structure of an independent Scotland. That will be done through the Edinburgh Agreement and in particular Clause 30, which states that the two governments are committed to work together constructively in the light of the outcome – whatever it is – in the best interests of the people of Scotland and the rest of the United Kingdom.
(Lord MacGregor made it clear in his introduction that his committee was not considering the political and non-economic aspects of the referendum but solely the economic implications for both Scotland and the rest of the United Kingdom (rUK). To what degree the Lords present remained within the letter and spirit of those terms of reference in their questioning of John Swinney is something that must be judged by those viewing the full Parliament channel broadcast.)
John Swinney in responses to questions on EU
On Scotland’s EU membership re Barroso’s letter -
There is no provision within the Treaty on European Union that provides for the scenario that President Barroso has cited in that particular paragraph of his letter.
The course of action that we are proposing to take [the creation of an independent Scotland] is an unprecedented case – it is not something for which the Treaty has provided.
I don’t agree with the content of President Barroso’s letter for the reason that I do not see the basis within the treaty upon which that remark is founded.
On engaging in discussions with EU on the matter of an independent Scotland’s membership -
The Scottish Government accepts the importance of continued membership of the European Union for Scotland.
That is why we have continued to assert the belief that we have that Scotland is a part of the European Union, and we wish to remain part of the European Union after independence.
The Scottish Government has taken forward informal dialogue with the Commission, but the Commission have been very clear for some considerable time that they would only consider a particular scenario if that particular scenario was put to them by a member state government.
We certainly would be very happy to participate in dialogue with the Commission around the question of resolving, in response to a request from a member state for clarity from the Commission on this point – and the very material point that I advance in that respect is the comment that I make about President Barroso’s comment not being founded in any part of the Treaty.
That therefore says to me – and this has long been a view that we have taken - that this is a process which essentially would ultimately become a process of political dialogue and discussion between relevant member states to be resolved as a consequence of a YES vote in the referendum.
The referendum will take place in the autumn of 2014. We have always made clear there would have to be a process of negotiation transition that followed that decision in principle by people in Scotland that they wished to proceed to independence.
In that window, between a decision in the referendum in the autumn of 2014 and the establishment of an independent country – which we believe would be possible through the elections to the Scottish Parliament in May of 2016 – there is the opportunity to essentially resolve that particular question.
In response to query from Lord MacGregor as to whether it was to resolve the question of whether an independent Scotland would have to make a new membership application or the terms in which it would be made.
The terms of Scotland’s membership of the European Union. We are currently part of the EU .. through our membership of the UK – and we would making it very clear that we wished continuity of that membership to be available for Scotland, and as a consequence of that, we would be negotiating the details of terms around that membership.
Lord MacGregor offered his view that it was “a bit late to have come up with this answer overnight in response to Mr. Barroso’s letter …” He asked if there was independent legal advice to justify John Swinney’s assertion.
There are a variety of expressions of legal opinion. There was one just the other day there which was expressed by the professor of law for the University Glasgow who made the point in a broadcast interview. Professor Tom Mullen says there is no specific provision in the treaty that expressly deals with the situation of a member state breaking up and both parts wanting to stay in, and that confirms the view that I am taking.
I cited the House of Commons library paper earlier … The Lord Advocate of Scotland’s opinion has ben taken on this particular question, and that will be available when the Lord Advocate has completed the formulation of that opinion.
On being asked if he was “absolutely disagreeing with the fourth paragraph of Mr. Barroso’s letter …”
That is point which is the nub of this letter from the President of the European Commission … there is no foundation in treaty for that position to be supported.
Lord MacGregor queried if the Scottish Government had taken this point up informally with the EC. He “assumed that this letter had been extremely carefully considered and drafted.”
Well, as for its drafting by the European Commission – that’s a very interesting point because it seemed to be available to the wider media in Scotland before it was available even to this committee, from the press reports I saw last week – essentially, this reply being available to The Scotsman newspaper one day last week when it was not available to the Committee. So I think the drafting of the letter is a question of some interest I think to the wider debate on how ….
Lord MacGregor interrupts, saying his question is being ignored …
What I’m simply saying is that I think the point that’s made here is a point for which I do not believe there is foundation in treaty – and that’s the issue – well, certainly one of the issues that we want to discuss very clearly with the Commission.
Lord MacGregor says that it’s late to be discussing this, and it will create even more uncertainty in the business community.
I don’t think it’s late all, Lord Chairman, because the Scottish Government – as I set out in my opening remarks – is going through a process which is about ensuring the public are properly informed about the issues in connection with the referendum in good time for the referendum in the autumn of 2014, and that will involve the production of a White Paper which will be available to people in the autumn of 2013.
That’s the process that we’re involved in – that’s our timescale for making sure that the public are able to form that view. If I look back at the documents that the Scottish Government has provided and produced over time on this whole question - whether it’s the original documents being produced after our election in 2007 or subsequent reports that we have produced – we have made the point that there would have to be a negotiation about the terms of Scotland’s membership of the European Union and that would be pursued with the European Union. We’ve always acknowledged the importance of a dialogue with the European Union on that question.
Lord MacGregor asks if the studies referred to included a Clear study of the views of the Scottish Government to the terms of entry that it might have to negotiate with the EU.
Clearly that would be the material substance of the discussions that we would take forward with the European Union. There would be a range of questions to be resolved about the terms of membership, and a Scottish Government would willingly participate in those discussions.
There followed the exchange with Lord Lipsey, and his contemptible “last refuge of a scoundrel” insult to Scotland’s Finance Minister. John Swinney responded with characteristic restraint and courtesy. On Lipsey asking if the Scottish government’s position on Barroso’s statement “could be sustained for a single second”, the Finance Minister responded -
Yes, because I think the point the Committee should be very interested in is the fact that there is no foundation in treaty for the point that President Barroso has made in that letter. I can’t see where that come from, and I think the sources and comments that I have cited to the Committee are designed to help the Committee to share the view that I have.
And I think it’s very interesting in the presentation of the letter that President Barroso – just on the start of the second page – gives a very clear treaty reference to the terms of a country applying to become a member of the EU (at the top of the page, Article 49 The Treaty on European Union: any European state which respects the principles set out in Article 2 of the Treaty of European Union may apply to become a member of the EU) and I completely accept that treaty reference and that comment.
But my point is that in the preceding paragraph, which is – and I agree with the Lord Chairman – a very significant paragraph – there is no treaty reference; and the reason why there is no treaty reference is that there cannot be any treaty reference because such provisions do not exist in treaty.
Lord Lipsey responds that there is a reference to the treaty as it only applies to member states, so it’s irrelevant whether there’s a treaty reference – of course there isn’t, because you’re not a member state. Now, I don’t understand this , why you don’t take the following line– “Yes, we accept what Dr. Barroso said; of course we wish to apply for membership to the European Community and I’m sure this will be solved politically … “ That seems to me a perfectly straightforward, sensible and defensible proposition. To retreat into what are clearly implausible reference to what’s referred to in the treaty to which you would no longer be signature, because you’re no longer part of the EU – that seems to me to be the last refuge of a scoundrel, if I may say so …"”
I think what that misses, Lord Lipsey, is the point that as Scotland is taking this particular course in the aftermath of a referendum in the autumn of 2014, Scotland remains part of the European Union because we would still be part of the United Kingdom . We would not have enacted the Act of Independence, and therefore in that period – after a referendum, before the establishment of an independent state in the spring of 2016, Scotland would be involved in a process of settling the independence process and conducting negotiations with the United Kingdom government, and also with the European Union about the terms of Scottish membership of the EU. In that context, I think it is an entirely appropriate way for us to proceed with the discussions that we must take forward.
Lord MacGregor asks if the negotiating process was unsatisfactory from his' [presumably meaning the Scottish Government negotiating team!] point of view, would he [they] would withdraw the desire for independence.
MY COMMENT (can’t resist it!) Only a British Lord could have framed and asked such a crass and patently stupid question!
JOHN SWINNEY: The people of Scotland will have decided in the autumn of 2014 whether or not Scotland is going to be an independent country – that decision will have been taken by people in a referendum – and what it is up to the political leaders of Scotland to do is to give effect to the decision the people of Scotland have taken.
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