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Wings Over Scotland

Some EU ado too

Posted on October 23, 2012 by

We’re going to be pretty brief on this one, because it’s literally a story about nothing. The Scottish Government has just revealed, after a long back-and-forth battle over a Freedom Of Information request, that it hasn’t sought the advice of law officers over an independent Scotland’s membership of the EU.

Expect much fuss in the Scottish press tomorrow, although the SNP cunningly releasing the advice on the same day as the resignation of two MSPs will give editors and frothing columnists a headache over which to concentrate on. (There’s also the small matter of the referendum consultation results being published.)

But where’s the meat here? We genuinely don’t get it.

The facts are pretty simple:

1. There is no definitive answer possible on the issue of EU membership. The EU will not, and indeed CANNOT, give an authoritative reply, because it’s up to member states to decide and they won’t do that on a hypothetical basis – only as and when it becomes reality.

(Nevertheless, it remains the case that there is no mechanism in EU law for expelling people who are already EU citizens, as Scots are.)

2. Therefore there’s absolutely no point in the Scottish Government wasting time and money by asking. (The only thing that surprises us about the story is that they’re doing so now, although we suspect that’s a kick into the long grass.)

3. The well-established principle of maintaining confidentiality over advice to ministers is a sensible and honourable one, followed by all governments of all parties in all parts of the UK. The practice extends to revealing whether advice exists, as well as what it is, except where overwhelming public interest is ruled.

4. It seems self-evidently preferable for the SNP to have been protecting that principle ON principle – as it turns out they were – than that they were trying to hide advice they didn’t like. Now the Unionists are revealed to have wasted a big chunk of public money chasing a phantom, while the SNP has acted properly and in accordance with precedent at every turn.

The media and opposition would have spun the story negatively whichever way it had gone. Had the SNP been attempting to conceal negative advice, the outcry would have been enormous. Now that it turns out they weren’t, they get attacked for upholding standard practice. (Sure enough, Severin Carrell on the Guardian immediately tweeted that the Scottish Government was “admitting” it had nothing to hide, an oddly pejorative way to describe being not guilty of anything.)

The opposition will undoubtedly be beside themselves with glee this week at a hat-trick of “victories” – the screening of “You’ve Been Trumped”, the resignations of Finnie and Urquhart, and now this. And yet, none of them amount to even a flesh wound outside of the Holyrood/Pacific Quay bubble.

The Trump affair damages mostly Trump himself and Grampian Police, and Labour can’t make much of it anyway as Jack McConnell is tangled up in Trump’s web too. The resignations won’t affect anything in the Scottish Parliament, and may even benefit the Yes campaign by emphasising its broader membership than just the SNP. And the EU advice issue is a powderpuff, despite clumsy (and strongly rebuffed) attempts by the opposition to attack the FM over an interview with Andrew Neil.

Stand by for a day or two of faux-outraged squawking, and then business as usual.

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    35 to “Some EU ado too”

    1. Marcia says:

      Quite – a very good summary indeed.

    2. The fact that 2 MP’s resigned for me is an unfortunate non issue.Why they resigned at this important phase on Indy I don’t know as NATO & nuclear weapons is a policy for future Gov.   Donald Trump issue is embarrassing,I watched the video & it did not portray Scot well, especially for the little people. Hopefully the SNP is more careful in who it does business with. For example I read Bahrain was hoping to invest in Scot, are we desperate. On joining the Euro,Why AS had to pretend he had saught advice on Euro I can’t fathom.Who knows what’s for the best 2 yrs from now. Rather he was up front & honest. We can take I even if we don’t like What we hear. CM 

    3. tartanfever says:

      Did the SNP say that they had sought legal advice over EU membership ?

    4. Andrew says:

      The issue is about honesty. Salmond explicitly said that the government had sought advice and now we know that they hadn’t. There is no logical explanation I can think of for why they kept up this charade.
      The problem is that to people like us, who already know our views on independence, it doesn’t matter, but to people who are undecided it’s just confirmation that ‘all politicians are the same’ and the feeling that a lot of them will understandably be left with is that the SNP lied about this so what else will they lie about?

    5. Adrian B says:

      Quiet news week then. If the opposition can find comfort in that little lot then it only goes to show their position is one of complete disarray. 

    6. Aplinal says:

      No they didn’t.  What they DID say was that they refused to say whether they had sought or been given advice,which is entirely in accordance with ministerial code.  If you follow my clumsy ‘clarification’.
      Seems that even following proper process is a faulty IF it is the SNP.

    7. Rev. Stuart Campbell says:

      “Salmond explicitly said that the government had sought advice”

      No, he didn’t. My emphasis:

      Andrew Neil: Have you sought advice from your own Scottish law officers in this matter?
      Alex Salmond: We have, yes, in terms of the debate.
      Neil: And what do they say?
      Salmond: You can read that in the documents that we’ve put forward, which argue the position that we’d be successor states.
      Neil: And what do they say?
      Salmond: You know I can’t give you the legal advice, or reveal the legal advice of law officers, you know that, Andrew.

      No documents have ever been put in the public domain regarding legal advice over EU membership – that’s what the entire FoI wrangle was about. Therefore he’s clearly not referring to any such advice in the interview.

      This will certainly be spun in the media, but since when were we surprised when they misrepresent and lie?

    8. Cuphook says:


      The part of the interview dealing with the advice

      Andrew Neil: Have you sought advice from your own Scottish law officers in this matter?
      Alex Salmond: We have, yes, in terms of the debate.

      There is definitely a qualifier there which Andrew Neil failed to notice or pursue. Not so much a lie as obfuscation. While I would also expect better it’s what all politicians do.

      I was talking to a Tory today who said that Salmond was the YES campaign’s biggest liability. When I pointed out that Blair Jenkins ran the campaign he was taken aback and remarked that BJ was a good man. When the YES campaign moves up a gear and people realise that it’s not politicians but people who are involved I’m sure that they’ll see the difference.


    9. scottish_skier says:

      Given that the UK and Scottish governments have agreed a binding referendum where the result will be respected by both parties and both are successor states (in effect that’s what Dave signed up to), then the EU should be able to state its position. Doing so before could be seen as interfering. That’s why we kept hearing from various sources/places across the channel that the referendum was an ‘internal matter’.

      I am content that we will know the EU position quite soon as it needs to make it clear for both Scotland and the rUK which will both be ‘new countries’. The huge numbers of EU citizens living and working in the UK alone is reason enough that what happens after a yes vote is decided before the ballot. Then there are all sorts of trade issues.

      People must remember that Scotland would be in effect ‘independent’ the instant a yes vote is announced. The rUK, EU and wider world would far better be ready for this than try to cobble something together just after. I mean what if I want to go visit France? Will I need a visa? Could cause huge problems for industry, e.g. the north sea (so shutting down the UK and causing massive loses for TOTAL, Shell etc) if people are suddenly no longer EU citizens. Likewise, the EU not stating a position could be seen as it being biased towards London, ergo interfering in the internal politics of a state.

      Nope, we won’t be voting on an unknown EU. That would be nuts. That’s why the SNP are so confident on the matter. They’ve had no ‘official’ advice, but plenty of off the record discussions I’d imagine. Remember, they do have MEPs over there!

      In the end, we are not fighting our way out or holding a ‘rebellious’ / illegal referendum. 

      For e.g. Catalonia, things are a bit different as the Spanish Government refuse to recognise their right to self determination. We instead, have the amicable ‘Edinburgh Agreement’.  

    10. Cuphook says:

      You beat me to it Rev – I answered the phone.

    11. Davy says:

      Aye “Rev” a fair analysis, the unionist and BBBC rattles are fair birling in their prams just now. You would think the SNP-titantic had sunk again on the BBBC Scotland news site, they even have a quote from Willie Rennie.

      Doomed aye wer’e doomed.

    12. Andrew says:

      Rev. Stuart Campbell
      So he refers to docs put forward that haven’t really been put forward? what is he refering to? He goes on to state that everything published is consistent with advice received, which definitly implies that advice has been received. Surely you would have to accept that people could understandably sfeel mislead?
      The big problem is that as long as self inflcited own goals are dominating the news agenda it only makes it harder to get over the positive case for independence.

    13. Rev. Stuart Campbell says:

      “So he refers to docs put forward that haven’t really been put forward?”

      Eh? No, he refers to the documents the SNP has previously published containing various legal and academic opinions saying they think Scotland would be an automatic EU member.

    14. Juteman says:

      @ Andrew.
      This isn’t a ‘self inflicted own goal’. It’s more of a dive in the box by the unionist media, and others who are trying to deliberately make it into an own goal.

    15. Michael Neil says:

      EU membership? I’m pretty sanguine about it. The SG should hit the nail on the head and say after a yes vote they will hold a referendum with the question : If Scotland has to re-apply for membership, should we bother ?

    16. Andrew says:

      I’m sorry but from having watched the whole interview i’m pretty sure that a large number of people must have left it assuming the SG had advice which could categorically lead them to conclude that EU membership would be automatic, but they weren’t going to release said advice because of parliamentary rules and precedent.
      In reality the situation appears to be that there is evidence to suggest that membership would be automatic but there is no proof, in which case people would have the right to feel mislead. Perhaps Neil should have asked a follow-on, but I also think the FM is a canny enough politician to be aware of how he could be interpreted.
      I’m not suggesting membership wouldn’t be automatic, but i’m certainly not a constitutional lawyer, however what did seem like a dead cert this morning now appears to be disputed. In pure PR terms if nothing else this could become a big problem and could lead a number of peole to feel mislead.

    17. Gusmac says:

      The only people feeling mislead are the people who wanted to mislead.

    18. Agreed Andrew, we get enough spin & lies from WM & MSM,it would be refreshing if we could trust what politicians are saying. other than thinking all the time are we being lied too.The situation in Europe is still uncertain enough that people are ambivalent to an in out Euro answer. WM hasn’t given UK an answer to being in the Euro. People’s main concerns are NHS & cuts. Our’s is will we manage financially, the rest can wait until Ref. 
      It annoys me that AS misled everyone when he had no need to.

    19. Strathedin says:

      @Cathy McRorie…thank _goodness_ you can spell “misled” in its proper context, Cathy!

    20. scottish_skier says:


      I know you are not a constitutional lawyer, but if you had to hazard a guess, what do you figure the situation would be for the rUK as a new country if Scotland votes Yes? Do you have a link to EU legal advice for the rUK if the treaty of union comes to an end in 2014? I’ve been looking and can’t find anything concrete.

      I figured this would all need to wait until both the Scottish and UK governments had come to an amicable agreement on the terms of the referendum and signed up to that. Surely only then would the EU be able to come to a decision on the matter? 

    21. MajorBloodnok says:

      Seems to me that the Unionists have fallen for yet another amusing diversion whilst the Scottish and Westminster Governments just get on with it.

    22. Embradon says:

      From a few years back – Crit of a festival comedy show in the Scotsman: “A few of the sparse audience thought it hilarious. They should get out more”
      Flier for the show next day: “…. the ..audience thought it hilarious….” – The Scotsman
      Amazing how you can twist meaning by missing out words from a quote.

    23. AndrewFraeGovan says:

      It’s important to pay heed to the actual words that come out of people’s mouths.
      P.S. seeing you’ve pinched my handle I’ve changed mine.

    24. Embradon says:

      Would that be the advice that Stephen Noon asked the UK Govt about?

    25. Andrew says:

      No problem on the handle front, when I comment on future threads I’ll use a different one, but will keep plain old Andrew for this one so not to confuse matters 🙂
      The problem is that even if we assume Salmond’s caveat he still claimed to have spoken to the governments “Scottish law officers for the debate” without contextualising what that means. If we are to assume that he means he has spoken to them for SNP documents then that’s fine, but is not what Sturgeon said. She argues that legal authorities have been consulted for SNP docs but does not refer to the governments “Scottish law officers.”
      I’m sorry if this sounds like me being really thick (and as my Twitter and Huff Post articles will show I am definitly not a troll) but that isn’t entirely consistent. Also, I would suggest that a number of people will feel that they have been lead to beleive that the SG have spoken to their “own law officers” which implies they have taken official legal advice.
      If this is me being thick then so be it, but I can imagine that a lot of people will be in the same position.

    26. Eco_Exile says:

      Personally, I didn’t find it confusing at all. 

      In my opinion, The First Minister has repeatedly said when pressed that the advice is confidential under the ministerial code. No other government can be forced to publish their legal advice. 

      Whether said advice exists or not, is a moot point.

      Today, we learn that there is no such advice – but – that doesn’t change the assertions about the ministerial code.  

      When pressed whether the Scottish Government had sought advice about this
      the First Minister was quite clear when he added the qualifier ” … in terms of the debate …”. That means only about how the questions regarding EU membership  should be framed.  

      Now, the EU themselves have been repeatedly asked to comment on the standing of an independent Scotland.

      THREE senior officers of the EU have commented, paraphrased below;

      – One stated that the EU doesn’t comment on hypothetical situations,
      please wait until there is something solid to comment upon.

      -One has stated that there is no legal mechanism to remove EU membership from existing members.

      -One has stated that there is precedent for this circumstance, but did not wish to be definitive at this time with regard to Scotland, as each scenario must be considered on its individual merit. 

      From where I stand, it’s a non-topic, Mr Salmond has handled those in opposition to his position supremely well by sending them off on a wild goose chase, and, looking rather silly as a result. 

      At the moment, all that has been definitively stated by the Scottish government is that they would have the power to decide on EU membership after a Yes vote in the referendum, and would consult the Scottish people as to their wishes.  


    27. Rev. Stuart Campbell says:

      “I’m sorry but from having watched the whole interview i’m pretty sure that a large number of people must have left it assuming the SG had advice which could categorically lead them to conclude that EU membership would be automatic, but they weren’t going to release said advice because of parliamentary rules and precedent.
      In reality the situation appears to be that there is evidence to suggest that membership would be automatic but there is no proof, in which case people would have the right to feel mislead. Perhaps Neil should have asked a follow-on, but I also think the FM is a canny enough politician to be aware of how he could be interpreted.”

      This is the thing, Andrew. You might well think Salmond could have been clearer. You might well think his answer was a little ambiguous. You might even be able to stretch that so far as to say that he was happy for it to be a little ambiguous. But that isn’t what he’s been accused of. He’s been accused of “bare-faced lying”, and that assertion is absolutely indefensible. It’s factually wrong, and the people making the accusation know it’s factually wrong, because they understand English.

      Salmond’s words have been deliberately and cynically edited. The context has been removed, and in several cases many of the actual words have been removed, not just from the start and end but even in the middle. That is a hundred times more dishonest than saying something which could be interpreted ambiguously but is nevertheless technically entirely true, and anyone acting so dishonestly deserves to have their motives questioned.

    28. AndrewFraeGovan says:

      How come Paul Martin isn’t being disciplined? I thought there rules about this sort of thing.

    29. Rev. Stuart Campbell says:

      I must admit I’m a little surprised. There’s no question that an MP in the House Of Commons wouldn’t be allowed to call the Prime Minister a “barefaced liar”. They’d be removed from the chamber in a heartbeat. Evidently Holyrood’s rules are rather more lax.

    30. scottish_skier says:

      I must admit I’m a little surprised. There’s no question that an MP in the House Of Commons wouldn’t be allowed to call the Prime Minister a “barefaced liar”

      Well, this is the Labour party we are talking about. They are not exactly polite and principled. Maybe if he’d threatened AS with ‘a doing’ it would have been considered a step too far. Otherwise the electorate are judge and jury. Mr Martin seems to forget that the only people who might have enjoyed his smears are the ones that will never vote yes anyway. Those making up their minds will have just thought he’s a plonker.

    31. Alasdair says:

      Salmond clearly allowed people to believe that advice had been sought and received, regardless of how pro-independence and SNP supporters look at this is has been damaging for Salmond himself, the SNP more generally, and the Independence cause by association.

      I’m really pissed off with the SNP and Salmond for obfuscating on the issue and not being clear from the start.  He may not have lied but ‘we’ have certainly been misled.

    32. scottish_skier says:


      Do you think it will give the Scots Tory vote a boost? 

      If it does not bring them back up to say 30% at the expense of the SNP, then the union’s screwed.

      Only those wanting to feel misled are feeling misled. The ‘still making my mind up’ just want to know what the EU status would be for Scotland and the rUK post independence. It was all two obvious that this could not be made clear until the Edinburgh Agreement was in place. If I had been feeling misled I’d now be feeling a little sheepish at my previous inability to grasp this.

    33. MajorBloodnok says:

      And it’s all a distraction from the published consultation responses which entirely back up the detail of the Edinburgh Agreement, and clearly demonstrate that the Unionists have been well and truely had over the devo-max issue.

      As long as Labour keep putting all their efforts into activities that have no tangible bearing on the outcome of the Referendum (or the SNP’s poll rating) then more fool them.

    34. Rev. Stuart Campbell says:

      “I’m really pissed off with the SNP and Salmond for obfuscating on the issue and not being clear from the start. He may not have lied but ‘we’ have certainly been misled.”

      I really don’t understand why. As we noted yesterday, the truth of the matter is incredibly simple – nobody knows if an independent Scotland will be admitted to the EU automatically or not, or on what terms, because it’ll be up to the EU member states to decide and we haven’t a clue what their circumstances will be if and when that situation comes to pass. There are strong valid reasons to believe either view (mine is that the idea of the EU not wanting Scotland as a member is absurd, and in that situation why would they make it any more complicated than they had to?), but they’re just opinions. Personally I’m glad the Scottish Government has been spending its time on more important things than some meaningless speculation.

    35. muttley79 says:

      Correct.  The unionists and the media have been going on and on about Salmond wanting a second question in the referendum.  This has become their reality, so convinced are they of this.  All he actually said was that, if there was anybody willing to support a more powers option, then he would include it in the referendum.  Salmond has successfully eliminated the possibility of a two-question vote by bringing it up himself, knowing his opponents would now never support it themselves.  The comment about Devo-max being a very attractive idea in the summer probably deliberately sealed the fate of the idea.  Salmond probably knew as well that devolution had reached it limits but wanted his opponents to be seen to be rejecting it, and showing that this had occurred.  His conference speech was about appealing to the more powers element of the electorate.  The unionists publicly rejected this option, so they now have much less appeal to, and leverage with, this group than before.  Whether the unionists and the media have now realised this is debatable.  They would not be able to admit it publicly because they would be admitting that they have been peddling nonsense, and have been duped all along.

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