Thursday, 1 December 2016

Paging Nicola Sturgeon

I don't normally blog about Scottish politics because I don't live there and worry that not having to face up to the consequences will cloud my judgement.  To be honest, I've always felt it a bit cheeky of Alan Cumming to turn up in Edinburgh on his annual holidays and immediately start banging on about what Scots should and shoudn't do.  He can sit back and watch events unfold from his fancy New York apartment eating artisan shortbread without ever having to accept the inherent risk of constitutional change.  I can do exactly the same thing from my modest Zurich abode, even if artisan shortbread is a bit harder to source here.  Don't worry about me, though, because I have access to craft Stollen and organic Lebkuchen aplenty. Yum yum yum.  Despite everything I just said I'm going to blog about one aspect of Scottish politics that has been troubling me.  I'm afraid there are some uncomfortable truths coming up if you support the SNP and their Brexit strategy.

They're deliciously gingerbready.  Get them now before the tariffs hit hard.
Nicola Sturgeon has made a huge play of trying to formulate a deal that allows Scotland to remain in the EEA (Single Market) while still remaining part of the UK.  The uncomfortable truth is that this is just as ill-judged and dangerous as Boris Johnson's assertion that the UK can abandon the obligations of single market membership yet still remain a full participant. Moreover, it is equally as clueless as appointing Liam Fox as Secretary for International Trade without first announcing a formal policy on the UK's future membership of the European Customs Union.  It pains me to say this but it is just as bewilderingly dopey as announcing The Great Repeal Bill without understanding that it will lead to the UK being unceremoniously kicked out of the Single Market, assuming we don't formally leave it first.  To understand why Nicola Sturgeon has taken a wrong turn we first need to understand the principles of limited harmonisation and mutual recognition that define the single market.  It's a short hop from there to see why only independent nation states could ever hope to achieve membership.

The EEA is different from almost every other trading partnership because it prioritises fairness and enshrines that principle into legal obligations for all members.  The idea here is to make sure that the market operates with a level playing field for all participants.  This is achieved by issuing directives that are absorbed into the domestic legal framework of each nation in the EEA.   It's worth noting that there is no attempt to harmonise the legal systems of European states because that would be absurdly complex, overly prescriptive and doomed to fail.  Instead, the implementation of each directive is left to each member because the EU doesn't understand the inner workings of all 28 states and has no particular interest in meddling where it isn't needed or wanted.  Directive 2004/38/EC, for example, governs the freedom of movement of people in the EU and EEA.  That one seems to get the ideologues hot under the collar but it is just one of thousands of directives that define the operation of the single market.  Let's look at another, shall we?  Slightly more banal but equally as valid is Directive 2001/113/EC, which describes the sale of jam, jellies and marmalades.  At some point in time a UK civil servant will have been given the job of legally asserting that jams with 3 or more fruits can be marketed as mixed fruit jam.  Ponder on that for a second if you think your job is a bit boring.

All that limited harmonisation sounds great but it seems to depend on mutual trust.  I'm a particularly suspicious character and don't even trust my own family with a fiver so how could I ever trust Norway to play fair with their fruit jelly legislation?  The answer is that every member of the EEA is accountable to European institutions that check on the technical aspects of the adoption of directives.  Moreover, every member is accountable to European courts that adjudicate on suspected infractions.   This is all laid out in treaties that establish the operation of the European Union.

It should hopefully be clear that a Scotland-in-UK does not have the power to sign up to the obligations laid out by the single market.  Migration, for example, is a reserved matter controlled by Westminster.  As a consequence, the Scottish Government simply has no authority to implement Directive 2004/38/EC.  I very much doubt if it even has the authority to implement its own jam policy. I'd be surprised to learn that food labellling is a devolved matter but if anyone knows more about this please leave a comment.  The EEA could simply never accept Scotland as a member if it remains in the UK because it would be unable to uphold the membership requirements. 

I worry that the First Minister is playing a dangerous game.  First, she is not telling the harsh truth about the EU and the EEA.  Pretending that European institutions have powers or structures they could never have is not helping the debate.  Her position might even be worse than Boris Johnson's because while Boris refuses to accept the obligations, Nicola Sturgeon doesn't even have the power of refusal.  I'm guessing she is playing a game that frames the UK Government in a bad light by promoting the idea that they are getting in our way.  If Nr 10 was any wiser they would just tell her to go to the EEA, work out a deal and then the UK will work out the constitutional arrangements to make it happen.  That's what I would do because we all know that she is going to get absolutely nowhere in Europe.  The UK Government would then look as though they would have bent over backwards to help the Scots, while the EEA would suddenly look like the real enemy.  It's only the utter incompetence of the UK Government that stops this happening but sooner or later they're going to work it out.

I'd far rather Nicola Sturgeon just came right out with it and said that EEA and EU membership are only on the table if Scotland becomes an independent nation.  If it's not enough to swing the population behind her then that's just the way it is.  Perhaps spelling out the pitfalls of leaving the EEA would be an effective strategy because that is guaranteed to happen on the current path.  Really, it's time somebody took a rational approach to this mess.  I don't support any political party but I have quite a lot of respect for the First Minister so it's a bit disappointing to see her playing the same game as Liam Fox and David Davis.  Scotland needs to face the fact that the UK is forcing it out of the EEA.  Given that certainty, Scotland then needs to work out where it stands as soon as possible because time is not on its side and it doesn't get to dictate the schedule for departure.

Over and out,

Terry

PS I know this post is a bit of a repeat of a repeat but the principles of EEA membership are so poorly understood that the public stance of almost every politician and public pronouncement needs to be corrected.







23 comments:

  1. I think that the purpose of the First Minister has been to try to demonstrate to those Scots who still hang on desperately to the idea that they can in some way have it both ways that this is not in fact possible, by being seen to try and fail.
    You wouldn't believe how many middle of the road voters still think it is possible....

    However, timing is key, and I think the time has come to say it loud and clear what you (and I) have been saying all along....
    It's a binary choice. If a majority of Scottish voters are serious about staying in the EU, or even the EEA, then independence is the only way. The only other option is right wing xenophobic clowns at Westminster destroying Scotland.

    It's time for Ms Sturgeon to say so, and begin the fight. It will be a hard and dirty fight. If independence loses this time I plan to become either a hermit or one of those drunks who makes rambling speeches on the streets predicting inevitable doom.

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    1. You might indeed be quite correct about her current strategy. I can see the goal but I am worried about the method because it can unravel quite easily. This needs facts and reasoning rather than the kind of message management we've been seeing of late from everyone on this issue.

      I'm already a bit of a hermit, especially in the winter, but not yet a rambling drunkard. Either way, good times lie ahead.

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    2. It's not quite time, I think. In March or perhaps February.

      I hate this because it forces independence to be viewed through glasses with a Brexit lens over one eye and an Europe lens over the other, rather than viewed in its own light. But realistically, Sturgeon can't openly commit to IndyRef2 until Article 50 has been triggered.

      She could try earlier, but it'd be a gamble and it might hand Theresa May an awesome weapon - a means of averting Brexit and blaming it on the Scots.

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    3. Alan, I totally see your point. She can't commit until A50 is triggered and the UK Gov's plan is clearer. She could still lay down the conditions of a 2nd indy ref right now and then play the waiting game to learn if the conditions are fulfilled or not. I'm probably just a bit fed up with Brexit lies, and here is another example of someone not being utterly truthful with the public about the set of achievable outcomes.

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  2. Really interesting post.

    I'm guessing that the First Minister, a lawyer by training, is probably aware of the facts you laid out.

    So what is she playing at?

    She may be, as you suggest, taking advantage of the fact that no one in Westminster or Whitehall or whatever they call themselves has a clue what they are doing. However, that's a risky strategy. Who knows if among the new very expensive staff they have had to lay on, someone might have come across this blog!

    She is, of course, doing her damnedest to comply with the stated wishes of the Scottish people. By 55% they want to stay in the UK; by 62% they want to stay in Europe.

    How can it be done? Ms Sturgeon has to try every possibility. Even if these possibilities aren't really possible.

    She might argue that if the EEA would accept Scotland, and there are nations that have stated that they want to do everything they can to help Scotland do this, then more devolution... federalisation, might be the answer?

    We are in uncharted territory here. Scotland has its own legal system. It's maybe not beyond possibility that Scots Law could incorporate EEA directives into law. That already has to be done separately from English law. All that would be required is the necessary powers to be devolved to Edinburgh. Free movement of labour would be possible, and could be controlled by NI numbers (as it was when we had the right to allow students to stay on and work in Scotland, but not in the UK).

    It would all require enormous change, I know, but leaving the EU is the biggest change imaginable, and by comparison, new powers for Holyrood seem small.

    It may be that Gibraltar and Northern Ireland will get new powers too. Certainly the Northern Irish government is putting an argument to the Supreme court, backed by a professor of Irish Law, that they, the UK, have no right to remove NI citizens from the EU against their will, under Irish law.

    Likewise similar arguments are being made by the Scottish Government. I hear that the Mayor of London is demanding special exclusions.

    http://www.irishlegal.com/6012/uk-supreme-court-to-hear-arguments-against-brexit-for-northern-ireland/

    http://lallandspeatworrier.blogspot.co.uk/2016/11/ane-absolute-power-to-cass-annull.html

    Ireland and Scotland don't want to leave the EU. It is unlikely that the morons we have in charge of Brexit have given the least thought to the fact that Scots and Irish law exist. It's what WE live under, but on a daily basis it doesn't impact on them. These arguments are serious, and I'm pretty certain that the Supreme Court will take them into consideration.

    Cameron and his incompetent little scheme to put one over UKIP may well have signalled the end of the UK as it currently is.

    I'm a hermit. And I ramble. But it's not usually alcohol that is responsible for it, just daftness.

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    1. This blog is made for rambling.

      I've seen numerous reports outlining how Scotland could remain in the EEA. My view is that they all hinge on arcane legal theory, could-bes and might-bes. The situation is that the UK gov will not grant Scotland the necessary constitutional powers because it would lead to the absurd situation where a German worker could have the right to reside in Scotland but still require an entry visa to go to Carlisle. It would mean that jam made in Scotland and sold all over Europe could not be sold in England. It would require a customs border to check that non-compliant English marmalade doesn't end up in Scotland or any other part of the EEA. Even if these were all politically acceptable (to UK gov and EEA) the timetable of departure means the constitutional arrangements will not be in place until it's too late. I suppose the point I'm making is that the UK could never be tweaked in a way that keeps Scotland in the EEA. A problem always pops up somewhere that can only be solved by independence.

      The arguments to prevent Brexit or force conditions upon it will certainly have their day in court. I just don't see any prospect for special deals for Scotland or any specific region. Bank passporting, for example, might be negotiated but I don't see how it could only be applied to Canary Wharf. What if I wanted to set up a pension firm in Huddersfield? Doesn't sound right, does it? That's not how developed countries typically work due to the principle of equal rights for all citizens.

      The citizenship question is interesting. My instinct is that EU citizenship is a status derived from nationality. Our rights under the EU are only guaranteed by the UK being a signatory to EU treaties and the ensuing regulations and directives. My relationship with the EU is mediated through the UK - I don't directly have EU status. Any rights I have in the EU are rights that derive from laws adopted or recognised by the UK gov. With this argument the UK is free to diverge from the EU as it likes after Brexit and I just have to live with that. This is quite depressing, really, but it's probably not helpful to cling to unrealisable outcomes.

      Hermits of the world unite and take over!

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  3. I see your point(s).

    I think that Nicola will have tried everything that she ca, however impossible or unlikely, to keep faith with the declared will of the Scottish people to remain in both the EU/EEA and in the UK.

    In the end, if lawyers and the imaginary (make it up as you go along) constitution says it can't be done, then I think it wouldn't be unreasonable for the Scottish people to be given the opportunity to decide which one of the two organisations they want to stay in, given that they can't have both.

    At that point no one can blame Nicola for offering a second referendum, which of course, we know, will need to have the permission of Mrs May to have force. Article 30.

    Jeez all these articles!!!

    However, given the fact that Nicola, by that stage, will have bent over backwards to stay in the UK...as the Scottish people want, I think it would be pretty unlikely that May would say no.

    As Alan says above, once she has got her Article 50 (however long it takes) and quite likely ignored completely the wishes of the Irish, Scots and Gibraltarians, then is the time for action.

    Put it to parliament, see if the Presiding officer allows it, and take it from there.

    I'm thinking about becoming a drunken hermit ... so maybe we could unite, sign Article 3.75, and fall over?

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    1. I think the SNP position could also be called "have your cake and eat it". We can't have EU/EEA and UK.

      I guess I'd rather that she lay down the red line on a 2nd referendum now but defer calling it until the conditions are clear. "If Scotland is dragged out of the EEA then I will call a 2nd referendum. The UK appears to currently be on that course but we can't determine fully that until A50 is invoked and UK Gov have a plan that can be communicated unambiguously". Better that than be accused of making it up as you go along. It just seems more honest, admittedly not always the best policy.

      Perhaps my issue is that I don't know what her red line is, exactly. Is it trade? Is it continued migration rights? Is it access to services? Is it EEA membership?

      Alan makes a great point. A50 is the time for action. I also see the advantage of trying to eat and have cake. Who doesn't? It just sort of muddies the waters for me. I'd like to know the UK Gov's position on the customs union. We should know that by now. Similarly, I'd like to know the conditions that would force a 2nd indy ref. We should know that by know, too. Everything else is just soundbites and headlines.

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    2. https://lallandspeatworrier.blogspot.co.uk/2016/12/a-quintessential-matter-of-political.html?showComment=1480620059156#c3442044991935853138

      England has answered Scotland, Wales and Northern Ireland.

      Interesting read.

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    3. That is an interesting blog post. It quite clearly shows the power relationship between Holyrood and Westminster. This is where we need Holyrood to really have the powers of, say, Canton Zurich or Bavaria or Quebec Provence.

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    4. Oh you mean devolution plus like Mr Brown promised us. Yes, that would have been nice.

      I'm reminded that the Walloon parliament help up the signing of the trade agreement between the EU and Canada.

      When Scottish ministers are allowed to go along to EU things, they have to sit quietly behind the English ministers and shut up.

      Speak when you're spoken to, Jock.

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  4. I think I will just go for drunken hermit? Sounds ok. Send for me if things change.....
    Nah, I'll just be out there annoying unionists as usual.

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    1. Are you the guy singing to himself in the park next to the swings? I'd let you know when this is all over but I'll be on the next bench with a 6-pack of Special Brew.

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  6. I think the FM is smarter than you give her credit for, for much the reasons that others have already mentioned so I won't say more on that. But I also think that she is conducting a performance, a piece of theatre of you will, to convince Scots that she is a real head of government, a stateswoman, capable of meeting with other heads of government on an equal footing so that when the time comes for Scots to contemplate being independent they won't have to use too much imagination to picture a Scottish government with a Scottish Prime Minister (though personally I favour the title First Minister) because they will have already seen one in action.

    Hugh Wallace

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    1. I do see your point. My gripe is that nobody in public life is being honest about European institutions, their structures and their powers. It's disappointing to say this but I include the First Minister in that category. Scotland simply cannot stay in the EU/EEA and remain in the UK, no matter how hard she appears to try to make it happen. Brexit is surrounded with so many myths and untruths so I suppose this is just one more. My worry is that it just makes it harder to convince the population to vote for independence if they've been fed the idea for months and months that it isn't necessary in order to retain EU/EEA membership. The truth is that we have an either/or choice to make. I'd rather everyone understood that because not understanding it means a depressing repeat of the EU referendum campaigns (both sides).

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    2. [Take 2] [Actually, Take 3!!!]

      As someone who values the truth I agree with you completely, in principal. However I don't think the message being received by the population is Scotland is that the SG think they can achieve staying in the EU and the UK so much as they are exploring the possibility. Certainly the majority of the news on the subject are (often gleeful) reports of how the SNP/SG/FM has been snubbed or set back (again) in their efforts to achieve a compromise deal and today's edict from Hammond is simply par for the course.

      I think the SG/FM are trying to do two things: 1) they are letting the Scots see that all avenues are being explored but there is no possibility of both states to be achieved which allows the population to reach its own conclusion that the only way to stay in the EU is to vote for independence. This is a far more powerful way of imparting the message than simply stating 'you lot will have to vote for independence'; you know what we Scots are like when someone tells us we have to do something. 'Do we? Aye.' 2) They are letting the population see a government acting like a government so that it requires no imagination for them to imagine an independent Scotland lead by such a government. During Indy1 one of the arguments for No was that we didn't have anyone in Scotland capable of leading a real government (rather than a diddy parliament) and it will be much harder to use that line when it is apparent that the FM and SG are doing more and being more proactive than the current shower in Westminster.

      As for being completely honest, while I like it in theory our opponents are not and if we fight fair and they do not we are doomed to fail again. I'm in favour of speaking the truth but maybe not the whole truth. Does that make me a bad person I wonder?

      HW

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    3. Nobody minds the odd double post here. No hammers at the ready at this blog.

      I do see your point, especially point 2). It's a powerful argument. Point 1) comes back to your final statement about fighting fair, I think. Again, I see your point, though I do worry that the message could be quickly unwound by a more effective opposition. I suppose it's time for me to wheel out a particularly cheesy riposte and say that I'd rather fight fire with water than with fire.

      I certainly never tell my boss the whole truth. He only gets the bits that won't annoy him. I'd say that makes me a good person by not making him unhappy.




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    4. Double posting wasn't my issue but having to re-write that last reply several times because it kept getting lost annoyed me! ;)

      I'll go with us both being good people...

      As to fighting fire with water, I think my experience of doing just that during indyref1 has made me nervous about that approach because I saw the fire from the No campaign being so effective. Of course, that said, we on the Yes side did take support for indy from low 20% to 45% by being positive and who knows if we would have had that success if we hadn't been using the 'water method'. I think I would opt for using both fire and water to fight the other lot next time round!

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  7. Did you notice, Terry, that Nicola went to Brussels and talked to the Commissioners and the EU Parliamentarians.

    UK politicians do not do that. They never have because they have barely left the age of gunboat diplomacy and they think that bullying bluster and backroom deals are the way to go. They even visited German manufacturers to get them to "put pressure on Merkel" for a deal.

    Yes the UK public is abysmally ignorant about the EU, but that is because successive UK Governments and the media have chosen to keep them that way.

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    1. I can't agree with your more. Scotland should have be represented in Europe and I think the First Minister does a good job there. My point is only that Scotland can't stay in EU/EEA and remain in UK. The First Minister is giving the appearance that she is working towards that solution, which is just impossible to achieve. The danger is that people still don't understand the structure and powers of the EU and believe that we can remain a full participant without first becoming independent. I'd rather see someone stand up and actually tell the plain truth. I believe that only facing up to and understanding hard facts will find a path through this mess.

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    2. I I agree. I am currently sober and nowhere near the park bench. However, if we lose, I'll see you down there. You bring the tinnies and I'll bring the cheap vodka, cos reality will be just too much......

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