Jim Sillars: Why you shouldn't blindly follow the Scottish Government's post-Brexit strategy

Former deputy SNP leader Jim Sillars sets out his concerns about the EU and explains why he doesn't want an independent Scotland in it  

MY opposition to Nicola Sturgeon’s positions on Brexit (the plural is accurate) has been criticised as damaging to the independence movement. It is far from it.

I have been trying to save the movement from folly: a folly not emanating from deep discussion or careful analysis, but from decisions made by a tiny group of people in the Scottish Government, if not one person.

The response to the EU referendum vote on 23 June last year was an immediate move by the first minister to deliberately mis-read the question that had been on the ballot paper (whether the UK should leave the EU or not), and start punting a second referendum. Careful thought was required. It was missing.

Read more - Scotland's response to Brexit: Sturgeon outlines request for #ScotRef in letter to May

For example, people like me, some 400,000, including many who voted Yes in 2014, did so despite being in a Scotland where every major political party, and the full PR machine of the Scottish Government, trumpeted out a Remain message. 

Was no assessment made of whether we would vote to re-entangle ourselves in the EU? To take another example, could she rely on the 1.6 million Remain voters to follow her, when a good part of it was a Tory bloc loyally following the advice of Prime Minister Cameron and that of Ruth Davidson?

There was no dispassionate, objective assessment of the respective hands the UK and EU would hold in negotiations. Every SNP statement has been predicated on the "catastrophe" of a hard Brexit, with scarcely any credence given to the final deal being a good one.

The SNP position since 24 June 2016 has been PR driven, not brain driven. That is not a sound foundation for the Yes movement to stand on.

Independence in the EU is now an oxymoron

It is difficult to know just what the SNP policy on Scotland’s future relationship with the UK and the EU is. Continuing to be part of the EU Single Market while being part of the UK is fantasy. 

Its delusion arises from an inability to distinguish between the Single Market as a product of the Single European Act, a legal document setting out internal EU rules, and the consumer market represented by the 27 states. They are different. The USA, China and every non-EU state that sells into the EU are not in the SEA Single Market, but have entry to the consumer market through WTO rules. They do quite well, as does the EU in its exports to them.

But let us take the possibility of an independent Scotland applying to the EU for membership. Spain has now said it would not impose a hard veto on such an application. Instead, if you read the statement by its foreign minister, it will wield a soft veto – getting put in the queue.

I do hope SNP ministers will not be taken in by the new Spanish tactic. It, along with others who have allowed junior ministers to flirt with Nicola and others, are simply making mischief for the UK as part of their negotiating ploy. Just ask the question why Scotland, which has all the EU laws in place, should go into a queue for membership? There is no rational reason. It should be easier for Scotland than when East Germany was slipped in. That the "queue" is mentioned should give the game away.

Let me explain why I will not vote for re-entry to the EU as a Scottish member state.

We have to start at the beginning, and see how independent powers have disappeared

The genesis of independence in Europe is to be found in a speech I made in the House of Commons during the passage of the Bill taking the UK into the EEC. 

I set out what seemed the logic of Scotland going straight to Brussels rather than through Westminster. No one took any notice. More substance was added to that principle in a policy paper immediately after the 1975 referendum.

Again, it was ignored.

In 1975, with only nine members, each state had veto powers over a vast range of policies. These were emphasised by the Luxembourg Accord, levered in during de Gaulle’s time to underline that that the EEC could do nothing if a member state thought it was against its national interests.

A policy adopted in the 1980s by the SNP when there were only 12 member states, each armed with a veto underlining their essential sovereign relationship with the centre, is not the basis on which today’s EU can be judged, especially on the issue of independence.

The gestation period of independence in Europe was a long one. It took my membership of the SNP and much internal discussion before the party finally adopted it as central to its constitutional policy.

When it did, there were only 12 EU members and again each had a veto over a wide range of policies. The veto was extremely important as it was not only a symbol but a fact of sovereignty, and a bulwark against the erosion of essential components of independence.

I have remained a student of EU development over the years, and have experience of working with the Commission in Brussels through my job with the Arab British Chamber of Commerce, which involved the promotion of EU-Arab Gulf relations. 

My present position is built upon the study of the EU, experience with the Commission, and watching the role and decisions of the European Court of Justice.

A policy adopted in the 1980s by the SNP when there were only 12 member states, each armed with a veto underlining their essential sovereign relationship with the centre, is not the basis on which today’s EU can be judged, especially on the issue of independence.

A steady ‘federalist’ march to Lisbon

Treaty after treaty first eroded, then with the Lisbon Treaty almost completely removed, the veto power that was and is so essential to the degree of independence that each member state can exert.

Today, the need for unanimity is rare on policy, replaced by qualified majority voting where, if Scotland was a member, it would have just a bit more than the one per cent vote allocated to Ireland.

That parade of treaties has had one object in mind, the creation of a United States of Europe with member states ultimately subservient to a strong centre, in which great power is exercised by an unelected elite. The need for consent from the peoples of its member states was regarded as an inconvenient nuisance. The way found to handle the people was to deny the objective, while moving towards it step by step.

The history of the Lisbon Treaty is a lesson here. To bind the member states into a federalist union, a convention was established which produced an EU constitution. The Netherlands and France had constitutions which required approval. They both voted no to the prospect, but that proved not a problem. The Lisbon Treaty was produced, in an act of the purist cynicism.

Today, the need for unanimity is rare on policy, replaced by qualified majority voting where, if Scotland was a member, it would have just a bit more than the one per cent vote allocated to Ireland.

Valery Giscard d’Estaing, president of the rejected Constitutional Convention, commenting on its replacement, the Lisbon Treaty, said: "Public opinion will be led to adopt, without knowing it, the proposals that we dare not present to them directly... All the earlier proposals will be in the new text, but will be hidden and disguised in some way." Le Monde 14 June 2007

Angela Merkel: "The substance of the constitution is preserved. That is a fact" 27 June 2007

Dr. Garret Fitzgerald, former Taoiseach, explained the truth in the Irish Times on 30 June 2007: "As for the changes now proposed to be made to the constitutional treaty, most are presentational changes that have no practical effect. They have simply been designed to enable certain heads of government to sell to their people the idea of ratification by parliamentary action rather than by referendum."

The Lisbon Treaty, as with the creation of the Euro, marked a major step towards federalist integration, with the EU able to act in the international sphere in its own right. This is brought home in the recent EU statement setting out its draft negotiating position on Brexit. 

"The union’s overall objective ... will be to preserve its interests, those of its members, its citizens and its businesses." Note "its interests" are quite distinct from those of its member states.

Small nations are easy to crush

When the EU’s interest - that is, its project towards further integration - clashes with the needs of small nations and respect for their democracy, there is no contest. 

Recently, old people in Greece were tear gassed by police when protesting against another cut in their pensions, imposed by the Troika – the EU Commission, the European Central Bank and the IMF. Greek workers demonstrating against imposed privatisation, with job losses, were also tear-gassed. 

Portugal, also under Troika rule, has 2.6 million people living in poverty; and is projected to see its population shrink because the child-rearing young have fled austerity.

We have heard a great deal from the SNP leadership about their anxiety over the retention of workers’ rights in the aftermath of Brexit. The only place such rights have been smashed is in Greece and Portugal, by the central power of the EU.

Labour has lower rights than capital

As well as Greece and Portugal, and the dysfunctional disaster that the Euro has become, there is another landmark SNP ministers never mention – the Viking judgement in which the ECJ set out a hierarchy of rights, now enshrined in case law, placing capital above labour.

Viking was a Swedish ferry company employing high wage Swedes. It had the idea of getting rid of them and employing lower wage Estonians instead. Good for profits, bad for the Swedish workers.

The Swedish workers went on strike to save their jobs. The case landed in front of the ECJ. It had to choose between two rights – that of capital to move freely within the EU, and the right of workers to oppose that free movement when their jobs would disappear. 

The ECJ, while acknowledging the right to strike, decreed that capital’s right to move came first.

It's no wonder that I will not vote to go back into the EU.

The sensible Scottish response to Brexit negotiations

What Scotland needs, and the Scottish Government should aim for, is a UK-EU free trade deal, with a protocol attached that acknowledges Scotland may become independent and will, in that event, inherit its terms. 

Nationalists may not like it, but rUK takes 64 per cent of Scottish exports of goods and services, and the position of the UK in the final deal will be vital to how we deploy our case for independence.

There is acknowledgment of possible independence by the EU, and the British prime minister has been careful not to reject a second referendum in principle. "Not now" is not the same as never.

Nationalists may not like it, but rUK takes 64 per cent of Scottish exports of goods and services, and the position of the UK in the final deal will be vital to how we deploy our case for independence.

There are, therefore, grounds on which we can argue for that protocol.

We are in the preliminary skirmishes in the respective UK-EU negotiating stances. The UK is in a better position than the EU, in terms of structure and trade facts on the ground.

The UK negotiators only have to bring the small devolved administrations within their single position, whereas the Commission has to accommodate 27 states of markedly different sizes, all with different trade and geopolitical relations with the UK. In practice it will be difficult to harmonise EU member states’ interests, and hold a single line. 

It is one thing for the EU to state that "in these negotiations the Union will act as one", and make that stick over the two years ahead.

Trade facts on the ground are likely to prove decisive

There are those in the Yes movement who believe that the trade relationship will not stop the EU driving the UK into a corner, either to capitulate on EU terms or walk away into a hard WTO Brexit, with British business facing average tariffs of around five per cent on its £628bn exports to the EU. 

That scenario also means the EU walking away as well, with its business facing the same tariffs on its £690bn annual exports to the UK. For the UK, however, the devaluation of sterling means that if that happens, then UK exporters can overcome the five per cent with ease, and profitably.

We have heard a great deal from EU politicians, but if driving the UK into a hard WTO Brexit clearly becomes the aim of the Commission, then you will start to hear the pained voices of EU business and trade unions. 

In that £690bn, to take a sample across the board, we import five million bottles of Presecco a month, 2,000 tons of French cheese every week, and 600 German-made Volkswagens a day.

There is also this factor that has not been taken into account: these are unique trade negotiations. All others all over the world are about lowering tariffs, whereas in the present UK-EU relationship there are no tariffs, which makes it a denial of economic common sense to raise them when there is no need.

Finally, a word on the Scottish Government’s recent threat to scupper the Great Repeal Bill

The threat recently issued by the Scottish Government, using the Sewel Convention, that it will withhold legislative consent to the Great Repeal Bill and thus scupper the UK exit from the EU, is an example of vacuous bluster that does the Yes movement damage.

That threat might have had some anxiety for Westminster if the Scottish Government had not, for PR purposes, intervened in the recent Supreme Court hearing on Brexit – against the advice of people like me, who suggested it was one in which political Scottish angels should not tread.

But in the Scottish Government dived. The result is binding case law which states that the Sewel Convention is purely political, not law, and that "accordingly the devolved legislatures do not have a parallel legislative competence in relation to withdrawal from the European Union". 

The threat recently issued by the Scottish Government that it will withhold legislative consent to the Great Repeal Bill and thus scupper the UK exit from the EU, is an example of vacuous bluster that does the Yes movement damage.

The Court also pointed to Section 28 of the Scotland Act 1998, setting up the Holyrood Parliament, which states that nothing prevents the Westminster Parliament legislating for Scotland on any matter. 

Just to top it off, the Supreme Court noted that: "The Lord Advocate and Counsel for Wales were correct to acknowledge that the Scottish Parliament and Welsh Assembly did not have a legal veto on the United Kingdom’s withdrawal from the EU."

Why did the Scottish Government send its Lord Advocate to London to make that admission when it was not necessary to do so? Good question, eh? 

That’s why I do not follow blindly the policy positions that spill out of Bute House, all of them on Brexit lacking the intellectual rigour that should inform policy.

Picture courtesy of Jim Sillars

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