Treacherous weapons

Newsflash: prominent / eminent / official person expresses opinion / prediction somehow relevant to independence referendum shocker, Yes / No campaigners outraged.

It is becoming a familiar format. The media unearth a suitably credentialled worthy or bigwig, ask them a few prickly questions, and invite an indiscretion liable to wind up one side of the constitutional debate. Which is generally fair game. This Sunday it was Barroso's declaration that an independent Scotland's EU accession would be "difficult if not impossible", for which read, bloody hard, tending towards chuffing hard. Cue salivation in Class 2B, as the Bash Street Better Together kids get their tweets formulated and fire off a series of whizzpoppers about pariah Scotland's hilarious exclusion from Europe, like the plooky teen tapping, ignored, at the form room door. 

On one level, this is a perfectly understandable response on their part.  Uncertainty and risk are the No campaign's favoured instruments.  They want us to see the independence referendum as a jury might a criminal trial, with Yes campaigners' being afforded the opportunity to displace the presumption in favour of union.  Has the prosecution proven its case? If not, the defence need not take to its pins and clear its throat to offer a reasoned account of its own. The proposition falls. 

Where, it seems to me, Better Together go wrong is that they've ceased properly to discriminate between credible and incredible lines of attack.  Does a particular intervention, however wrong-headed, ignorant or loopy favour our position? Then attack, attack, attack. This isn't a phenomenon unique to themselves. Pro-independence folk share the bad habit of enthusiastically promoting congenial interventions in the debate, however objectively dodgy their reasoning or provenance.  The First Minister loves to quote an eminent somebody, pouring icy water on an opponent's position. But we have to try to retain our critical faculties, and resist the partisan logic that every scrap of opinion, prophecy or claim which happens to chime with our constitutional preferences must be right.  That way intellectual bankruptcy lies.

Barroso's intervention this week furnishes an admirable case in point. Whatever your view about the desirability of Scottish independence, his remarks over the weekend were cobblers, and all fair-minded folk who want Scots to vote on the facts instead of distortions should have regarded them as cobblers.  Since, a number of constitutionally unaligned or no-tending voices have offered interesting (and quietly incredulous) responses to the Commission President's opinion. Sir David Edward, a No voter who served on the European Court of Justice and on the Calman Commission, described Barroso's reasoning as "absurd". Professor Michael Keating at the Future of the UK and Scotland blog argues that his intervention "confuses the question" of Scottish accession to the EU and the real and unreal challenges facing it, concluding that:

"None of this is in itself an argument for independence. Unionists can argue that Scotland is better off as part of a big EU state than as a small independent one. It is not consistent, however, to agree that Scots can vote to be an independent state but then seek to deprive them of the basic rights of any European democracy."

While this morning, for the Scottish Constitutional Futures Forum, Professor Neil Walker - "inclined to vote 'no' in September's referendum" - responds to Barroso's comments. He writes that these:

"... recent  events  have fuelled my anxiety about  the climate in which the debate is taking place. They have made me wonder whether the case for independence is getting a fair crack of the whip on the international stage, and have caused  me to ponder the implications of lending my vote to a position that remains so reliant upon negative rather than positive arguments."  

Noting, of Barroso's comments, and asking:

"These remarks have been well publicised. Predictably, they have been seized upon by Better Together as vindicating their long-standing scepticism about an independent Scotland's EU future, and as further evidence of the emptiness of nationalist promises. But why should anyone listen to Barroso on this topic?  Does he have a legitimate political voice in the debate? Does he speak from a position of legal authority?  Or, regardless of his political or legal standing, does he simply have a good insider argument, and one that we should heed? The answer, on all three counts, would seem to be 'no'. Why is this so, and why is it important to the integrity of the debate that the kind of intervention Barroso has sought fit to make should be challenged?"

It is an interesting piece, exploring the complex and contested principles undergirding the European Union, and how these relate to the particular case of an independent Scotland's chance of negotiated EU accession, and the terms of that accession.  

For what it is worth, my own view is that the Nats bungled the early argument on Scotland's EU status, the rhetoric of "automatic" membership offering Better Together an easy and predictable free shot at our vitals on the reasonable basis that (a) there are legal protocols governing EU accession and (b) EU treaty amendment requires unanimity among Member States.  However smooth or rough Scotland's accession to the EU might be, and whatever might be lost or gained in terms in that negotiation, "automatic" seamless and unruptured the process ain't. We have to make informed, prudential and principled judgements about its outcomes.

As Lord Glennie observed in a recent Court of Session decision, "the decision on continued membership will not ultimately be decided solely as a legal question but will, to a greater or lesser extent, involve questions of hard politics." To my mind, taking into account the principles undergirding the EU, and past practice, these hard politics favour some sort of EU accommodation with an independent Scotland. For that reason alone, the demand for certainty emanating from some quarters of the pro-Union debate is absurd. It is like one of David Greig's Yes/No plays.

Yes: Should we go out for dinner, darling?

No: Can you guarantee that the restaurant won't have been booked out, exploded, or become infested with weasels?

Yes: Um. No.  

No: We'll stay in. Microwave mac-and-cheese it is.

Much - too much - of the uncritical response to Barroso's intervention continued to foster this kind of ridiculous shadow-boxing. The temptation to squeeze short term tactical advantage from an intervention damaging to the other side may seem irresistable for the cynical hack.  It is certainly understandable, and a measure of skulduggery and position-taking is to be expected in a political campaign.  But a treacherous weapon is ever a danger to the hand.