With the referendum campaign under way, the SNP government entered a new world of realpolitik in which, irrespective of what lawyers might say about Scotland’s position as an integral part of the European Union, raw political power is what matters.
That is now on display in Madrid, a large member state with considerable influence on the commission, which echoes the Spanish line.
I am not alone in being astonished that there has been no diplomatic approach to European Free Trade Agreement (EFTA) as an alternative to the EU.
Membership of EFTA would not only be good in itself, but it would give Scottish negotiators a better bargaining position with Brussels. Some in the media tell us what brilliant tacticians sit at the top of the SNP: there is no sign of that on the EU, and currency, where the lack of a plan B hands the initiative to the No sides. The plural is not a mistake, as Spain’s role demonstrates.
Professor Robert E Wright (Analysis, 28 November) says the likelihood of Scotland being able to retain opt-outs from the Schengen area and the eurozone is “nil”.
Unlike statutes of the Scottish or UK parliaments, EU legislation rarely begins with the substance of the law. Instead treaties, protocols, regulations and directives invariably begin with recitals. These serve to place the law into context and to offer guidance when questions of interpretation arise.
Protocol 20 of the Lisbon Treaty, for example, enshrines the Common Travel Area (CTA) between the UK and Ireland in treaty law thereby effectively exempting both states from the Schengen zone.
Recital 2 refers to “the existence for many years of special travel arrangements between the United Kingdom and Ireland” before the articles of the Protocol detail the opt-out provisions.
This is the context within which the CTA is to be understood. The EU did not agree the opt-out for the two states as a favour or by virtue of their long-standing membership of the European club; it was recognition of the historical, social, geographic and political realities of the situation – of the many years of special arrangements.
Given that Scotland has shared in these special arrangements for as many years as the rest of the UK and Ireland, there would be no logic in the EU demanding Scottish entry to Schengen.
The chances of such a demand are, I would suggest, and in Professor Wright’s own language, “nil”.