My expert's bigger than your expert

Sunday 4-11-12

There's been much debate in recent days over the position of an independent Scotland in the EU.
Would it enter automatically? Or would it have to apply as a newbie?
There are expert opinions on both sides, but nothing definitive.
SNP MSP John Mason probably got it right in the Holyrood chamber the other day when he said "we are going into a negotiation on all of this and the lawyers cannot give us definite positions". However such realism appears rare.

Here's a longer version of the story from today's Sunday Herald on the SNP's favourite experts. 


THEY are the SNP’s holy trinity, the “eminent authorities” who apparently said an independent Scotland would be an automatic member of the EU.
 
In media interviews and in Parliament, Alex Salmond and Nicola Sturgeon have repeatedly relied on quotes from Lord Mackenzie-Stuart, Emile Noel and Eamonn Gallagher to make their case.
 
The first was the only Scottish judge to be president of the European Court of Justice, the second the longest-serving secretary general of the European Commission, and the third a former director-general of the commission.

All three were undoubtedly eminent in their day, but their quotes are not all they seem. Most striking is how old they are.

Noel and Mackenzie-Stuart gave their views in 1989 and 1992 respectively, a decade before the euro even came into circulation, and as they’re both long dead they can’t update their position.
Gallagher’s key contribution was also from 1992. And despite Sturgeon calling them “eminent legal authorities”, only Mackenzie-Stuart was a lawyer; the others were bureaucrats, albeit exalted ones.
Nor are their killer quotes from lengthy, densely argued opinions on Scottish independence.
In fact, their views appeared in newspaper articles, with no sign of any underlying working, and in SNP press releases. For instance, the SNP-cited quote from Noel that “Scottish independence would create two new member states out of one” was from an interview he gave in retirement to Scotland on Sunday in March 1989.

Emile Noel interview 1

The journalist, Derek Bateman, now a BBC Scotland presenter, noted Noel’s opinion was “a purist’s one, taking no account of political realities”.
Another Noel quote that “in my opinion the two new states have the same right to be members” was again from a newspaper interview, this time one given to the Scotsman three months later.
He said: “In my opinion the two new states have the same right to be members. The claim would be decided by the European Community.”
However, he also admitted another member state might try to obstruct the process: “Theoretically it is possible but it is more of an academic problem than one of political will.”
But what was academic in 1989 now looks more credible, as Spain may try to obstruct Scotland’s entry in order to deter secession by Catalonia.

Emile Noel interview 2

Lord Mackenzie-Stuart’s famous view that Scotland and the rest of the UK would “be in the same legal boat” after independence and “If Scotland had to apply, so would rest”, also comes from a Scotland on Sunday interview, this time from 1992.
But unlike Noel, he did not argue Scotland and the rest would automatically be in the EU, only that they would start from the same place and that the rest of the community would work quickly to resolve the “administrative hiatus”.
He said the only answer was “an inter-governmental conference to prepare a substantial amendment to the accession treaty that admitted the United Kingdom in 1973.”
In total, his “opinion” ran to 164 words.

Mackenzie-Stuart's opinion

Salmond likes to tease his foes by recalling Mackenzie-Stuart was a Tory, but he has yet to remind parliament Gallagher was in the SNP.
Indeed, Gallagher’s most famous dictum, that: “In my view, there could be no sustainable legal or political objection to separate Scottish membership of the European Community” was first made in a submission to the SNP in March 1992.
It was then reheated in a December 1995 SNP press release after Salmond met Gallagher in Brussels.
Gallagher’s handy view that “Scotland and the rest of the EU would be equally entitled to continue their full existing membership of the EU” - quoted by Salmond in Parliament - was also rushed out by the SNP during the 2004 Euro election campaign, after Commission president Romano Prodi suggested Scotland would have to reapply for membership.
Small wonder that when Gallagher died in 2009, Salmond said he had been “hugely helpful... in developing the case for an independent Scottish role in Europe”.
The SNP’s online tribute to Gallagher notes he was “an active member of the Brussels branch”.
Eminent? Yes. Relevant and impartial? You decide.

Eamonn Gallagher: an "active member" of the SNP