Freedom of Information, Scottish Government, Transparency and Clarity by David

Are we sitting comfortably? – then I’ll begin…

Once upon a time, a Scottish MEP asked the Scottish Government (SG), under Freedom of Information (FoI) for any legal advice it had received on the issue of an independent Scotland’s position in the European Union (EU), were they to become independent….

There had been, and there continue, exchanges in Holyrood and wider debate, over the question of whether Scotland would be automatically a member of the EU upon independence – or whether there would have to be an entirely new application, vulnerable to a veto from existing EU states. The First Minister (FM) is adamant that EU membership would transfer to Scotland automatically and with no need to newly apply, which has led to requests to produce evidence to back up his position (assumed automatic transfer of a membership – where have we encountered that before?).

This is not intended as a political piece, but a short summary is … opponents of Independence want to sow doubts in the minds of the voters with regard to the independence project: on the economy, on defence, on the EU. The FM wants to project clarity and assurance.

Ministers refused to reveal whether the information was held. The Scottish government cited Section 18 of the FoI Act in this refusal to reveal whether the information was held. The Section 18 is used when the authority considers information would be exempt from release or the authority considers its release would not be in the public interest. One of the principles behind this is that to make any legal advice available to the public under FoI, inhibits full and frank advice being given by legal advisers/civil servants.

But Scotland’s FoI Commissioner ruled otherwise – that release was in the public interest – ordering the SG to reveal whether it holds legal advice on the status of an independent Scotland within the EU.

The FoI Commissioner said: “In the commissioner’s view, the role of [the FoI Act] is important not only in ensuring transparency in information held by public authorities, but also in enabling transparency in information about process.”

She continued … that an independent Scotland’s position in the EU “could have a bearing on how people vote in the referendum”.

And that … “In this case, the commissioner considers that it is in the public interest to know the type of information that the ministers were taking into account in developing policy in relation to such a significant issue as independence.”

At this point the information simultaneously both should and shouldn’t be revealed, in the Public Interest.

After the decision, the Scottish Government decided to appeal. A spokesman for the Scottish government said, “…It is the longstanding and usual practice of the Scottish government to neither confirm or deny the existence or the content of legal advice… The approach we have taken on this issue is consistent with the UK government position in a similar case they dealt with under equivalent legislation. We therefore intend to appeal and contest the decision.”

The FoI commissioner is, thus, being taken to court over her decision that the SG should disclose the existence of the information requested – a case that commences imminently, indeed it may well have commenced.

[BBC’s Political Editor, Scotland, Brian Taylor’s blog is an enjoyable read and is due credit for some of what appears above]

This situation raises a number of points of note as well as questions.

Notes:

It’s notable that there is no ruling on release of what the legal advice is, but simply on its existence or otherwise.

It seems that the ‘neither confirm or deny’ position is there because either answer has political implications for the subject/holder of information.

Without wanting to get political, there is irony in the SNP position that ‘…approach we have taken on this issue is consistent with the UK government position’, as there is irony in the Unionist parties opposing it.

Questions:

Which position holds legal precedence?

FoI commissioner’s position that release of the information is in the public interest, or

the SG’s ‘legal advice may not be full and frank now’ position protecting the fullness and frankness of civil service advice, and that release of the information is thus, against the public interest.

How might this affect other FoI requests, should a precedent of the FoI commissioner above the longstanding principle protecting the fullness and frankness of civil service advice, be established?

If precedent such as this is established in Scotland, but not in the rest of the UK, how will an FoI request regarding a discussion/consultation/advice given across the border be affected (such as an FoI request re a discussion between the FM (SG) and HMRC (UK parliament))?

I understand that FoI requests have been made re the FM’s discussions with HMRC on the Rangers Saga, and if any intervention was made/attempted. There are implications of there has, as there are rules in place preventing political assistance to clubs.

There are broader issues more generally with FoI and the Scottish public Sector. The Scottish Commissioner recently publicised the increase in incidences of refusal to release information, but noted that it is not known if this is due to a higher rate of refusal within a similar number of requests, or if it is down to a higher number of requests overall (there was an interesting interview on BBC Radio Scotland a morning earlier this week). I would suggest that public servants are getting a bit more savvy re the grounds for refusal or the public are getting more intrigued by subjects that are more sensitive to the public servants or the public is getting more savvy at how FoI can be used to make public sector activities more open to the electorate (or any combination of these).

Whichever the precedence is in the case discussed, or how broader FoI issues are developing, I will be watching with interest. In the case discussed IMO the SG should bow to the wishes of Scotland’s FoI commissioner, release the information, and the civil service throughout the country, legal or otherwise, should adjust to ‘the new normal’. I would be interested in the views of the Random Thoughts blog and contributors.

Posted by David McCloy

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69 Comments

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69 responses to “Freedom of Information, Scottish Government, Transparency and Clarity by David

  1. kennymccaffrey

    Excellent point to raise David, and very well put. Thanks for that. I’m obviously no expert, but I’d imagine that the freedom of information guidelines would not have foreseen a problem of this type. But surely, in the SPIRIT of FoI, it should be released – particularly if the request comes from a governmental department?

    Of course, it could also prove rather embarrassing – although it would hardly surprise me – if there is absolutely nothing to back either side’s case in the records. A very British dilemma, even…

  2. Thomas

    David,
    Thank you, a great read, enjoyed that! Keep it up.

    Thomas

  3. Marching on Together

    A couple of years ago I made an FoI to the Scottish Executive requesting details of who if anyone had provided legal advice to the Scottish Ministers on the subject of the legality or otherwise of minimum pricing of alcohol. All I was after was who, when and how much it cost, but not what the advice was. I was interested to see if the lawyer providing the advice actually had the necessary expertise in the field. That got refused on the basis (if I remember correctly) on the basis that I had asked for information and not a copy of the documents in question, and the SE were knocking back a lot of requests on that basis under the SNP at that time. At the time I did not have the available time to pursue it via the Information Commissioner.

    The SNP have form on spurious refusals, including their refusal to reveal the briefing paper prepared no the subject of a local income tax, which despite being ordered by the then Information Commissioner to release, Salmond & Co went to court to stop it, until after the 2011 elections were out of the way, and the SNP’s cyberhacks subjected Kevin Dunion to an absolutely disgraceful smear campaign.

  4. andrakeith

    It does seem to be a difficult one. The SNP clearly believe that a full on discussion of the likelihood of Scotland joining the EU upon gaining independence could backfire on them, especially if the advice they have been given is not watertight.

    Liberal instincts lead me always to disclosure and so to support the FoI Commissioner. Republican instincts lead me to support the SNP in playing their political cards carefully – and who wouldn’t trust Alex Salmond’s political judgement?

    On balance though, political judgement or rather political bad judgement and the subsequent cover-ups and obfuscation is what got us the freedom of information act in the first place. Without it we are hostages to the sometimes amazing self-servingness of politicians.

    One interesting point comes to mind though. If the Labour party were in power in Westminster and Holyrood, do you think we would be having this discussion. I suspect not, as the party would make sure that the Scottish government did nothing to embarrass the UK government. As it stands the UK government is buggered if they do insist on disclosure (because it will then lose the option of using the same defence in future) and buggered if they don’t (because then the assertion that EU membership is a given will continue to be made).

    I am not sure how this precedence, if that is what it turns out to be, would affect the HMRC Rangers case. The difference is that neither the party holding the information (HMRC) nor the party insisting on the release of it (FoI Commissioner) have any ‘political’ interest in it. Only the party requesting the information is likely to be doing it for political reasons.

  5. John Burns

    SNP – the chameleon of politics

  6. Richboy

    Speaking on a purely personal basis, I class politicians of all persuasions in the same class as shonky car salesmen, fairground operators, “find the lady” cons in a back alley etc. In fact I really rate them lower than all of the above.

    FoI was introduced to ensure these people do not continue to lie to us and feather their own nests at our expense, as they have done in perpetuity. These people are not to be trusted.

    The Commissioner was put in place to ensure these people could not deny us information when we try to find out what scams they are up to. The fact that they can deny the Commissioner is disgraceful and shows their utter contempt for the voters.

    In short, unless it is against National Security Interests, tell us what you are up to and allow us to enjoy a free and open society and not one that is manipulated by such hypocrites and low lifes.

    Sorry if this is OTT but politicians make my blood boil.

  7. Ignatius

    @andrakeith “Liberal instincts lead me always to disclosure and so to support the FoI Commissioner. Republican instincts lead me to support the SNP in playing their political cards carefully – and who wouldn’t trust Alex Salmond’s political judgement?”
    Slightly confused why your republican instincts should lead to SNP support as at every opportunity Salmond states Queen should be head of state and what a wonderful job she does. Now if he were to propose a second question along the lines of “An independant Scotland should have an elected head of state” that would be another matter.

  8. Ernie

    Good article and thanks for that. As a layman I have been finding the story a bit difficult to understand, perhaps I should give Brian Taylor’s blog a go?
    I’m a bit dubious about this whole referendum lobbyfest we’re entering; there are two diametrically opposite political camps, not unusual, and that does not reflect reality. From the one side we’re getting the Armageddon scenario i.e. nothing at all will ever be any use again under independence and from the other free beer and loads of dosh as Ecosse rules Europe.
    It would be good if the story was to be led by the keyboard warriors rather than the political branch of the usual MSM jokers but I suspect not in this case.
    On topic; release the information in this case IMO as it will make no difference. If the FM plays it right any newsworthiness will be over in a month or two and a lot of right of centre Scots (funnily enough probably the most vocal unionists) may even back a cause that means a future vote on EU entry. In the long term; keep the protocol, otherwise we have nothing left in political decision making that is not entirely public soundbite oriented.

  9. I suppose the dilemma here can be that (1) legal advice does not have to be acted upon, it is advice, (2) if ministers follow legal advice that is appealed and overturned, are the Law Officers then to be dismissed, saving the skins of the ministers?
    The Ministerial Code (Section 2.35) is the first level of protection for legal advice:
    http://www.scotland.gov.uk/Publications/2011/12/01141452/0

  10. ecojon

    I have never understood the argument that: ‘One of the principles behind this is that to make any legal advice available to the public under FoI, inhibits full and frank advice being given by legal advisers/civil servants’.

    Looking at the Nimmo Commission report does that mean that the SPL could have insisted in going to the hearing stage without admitting the initial report existed?

    In any case why should full and frank legal advice not be tested or are the experts and civil servants involved such duds that it wouldn’t stand-up to external scrutiny. The issue here should not be about gaining political advanatge but in ensuring that the best advice is given even if that means that the original advice is amended in the light of external examination by others not part of the ‘political process’ and perhaps with a diametrically opposed political agenda. Anything less creates a barrier to arriving at the best informed conclusion.

    I have recently been involved in a case involving Holyrood civil servants and lawyers and to be quite frank not only did they not have a clue as to the law involved but spent most of their time and efforts trying to cover-up their inadequacies. Needless to say they did not prevail 🙂

    But it isn’t just Europe where we have problems – the same situation holds with Trident, Faslane & Coulport and Nato IMHO. And then there is the currency issue which I realise is linked to EEC membership possibly – but who is our Lender of Last Resort as I really wonder if the Bank of England will pick up the baton on that one.

    So many conundrums and so little information – to use an in-vogue term – we are all being treated like plebs and basically being told our political masters not only know what is best for us but will give us no say in it. All they want from us is not opinions just a blindly cast vote.

    • Ernie

      Clearly I’m not competent to argue the legalities but as you raised LNS look at the outcome of the open statement released last week. Did it clear the air and lead to frank and open debate? On here it may have but the news on the wires was either LNS gives one to Greene or LNS is obviously biased against sevco/oldco dependant on the existing view of the messenger. However, that’s only fitba so not really in the same ballpark.
      IMO the vote for or against independence should not hinge on whether or not we will be 10% better or worse off or on how we deal with EU, NATO, DVLA (someone gave me that one as problem area recently!) or the Queen etc. I do however believe that the no campaign has made a great start, will continue to present lots of reasons why not to do it and will win. Not my personal best outcome but so be it.

      • ecojon

        @ Ernie

        I think you have to accept that the LNS report was never going to be judged in a totally balanced way and that goes for Rangers and Celtic supporters although it appears to me that Celtic supporters, in the main, made a stab at reading and understanding the statement.

        The vast majority of the Rangers posts I read showed that bits had been picked out and pounced on as evidence of bias and hatred towards Rangers. Sometimes it is all quite depressing.

        But I wouldn’t be too quick to dismiss the similarity with the referendum camapign as we have very entrenched positions and although I will vote NO I really do hope that whichever side wins that the margin is decisive so that the will of the people is clearly shown. Whether politicians will take the slightest notice of that will is, of course, another matter 🙂

        • Marching on Together

          ” really do hope that whichever side wins that the margin is decisive so that the will of the people is clearly shown”

          What is scary is that say the yes vote gets 51% of the votes cast, then that will be taken as a mandate for an independent Scotland for all time coming. If the no vote gets 51% of the votes cast, then that will be taken as a mandate for the SNP to have another go in a few years time.

  11. Good to see such a reasonable assessment of this issue devoid of the usual emotive baggage. What a pity the same cannot be said of many of the comments. In their desperation to attack the SNP and/or the Scottish Government some people have a tendency to throw Occam’s Razor right out of the window. They are so fanatically driven by the need to portray their perceived political enemies as “evil” that they are completely blinded to all but those interpretations which feed their mindless prejudice.

    Not for them the very simple explanation that confidentiality of ministerial advice is in and of itself a principle worth defending. Indeed, a principle that MUST be defended and would be defended by any Scottish Government of whatever hue.

    Not for these knee-jerkers such nuances of analysis as asking glaringly obvious questions about the nature of the request and the motives behind it. Do not pass GO! Do not collect your thoughts! Just go straight to the assumption that it is a perfectly valid and reasonable request motivated by an entirely worthy dedication to the “public interest”.

    One is struck both by the gullibility involved and by the necessary double-think required to believe that the SNP must have an ulterior motive because they’re politicians without extending that same cynicism to the politicians making the FoI request.

    The reality is that political parties and their spin-doctors have learned how to use FoI legislation in the service of their petty politicking. And the FoI request relating to advice on EU membership illustrates this perfectly.

    In the first place, even supposing the Scottish Government has acquired legal advice this cannot tell us anything we don’t already know. The matter of the post-independence status of Scotland and RUK in relation to the EU is a political question and not a legal question. There is no definitive legal statement to be made on the issue. There are only the limited possibilities already fully set out in, for example, Commons Library Standard Note SN06110.

    So one is entitled to ask, in what way is the public interest served by discovery of information which is already in the public domain?

    Secondly, those making the request knew with absolute certainty that the Scottish Government would be obliged to refuse and to take the matter to court if necessary. They knew this because they knew that it is precisely what they would be forced to do if they were in power.

    Because the legal aspects of the issue are already well known there cannot possibly be anything politically embarrassing in whatever advice the Scottish Government may have obtained. So to posit that as a motive for refusal to acknowledge or release the information is patently ridiculous. There can be only one reason for refusal and that is the imperative to defend the principle of confidentiality of ministerial advice.

    Likewise, there can be only one motive for pursuing the matter. It is a motive which has nothing whatever to do with public interest and everything to do with puerile partisan point-scoring.

    • Marching on Together

      I have been making regular FoI requests since the legislation came in. All I know is that the incidence of refusals from the Scottish Executive to my requests has been higher since 2007. I suspect that the figures would back that up in general.

      I also know that the amount of money the Scottish Executive has spent on legal fees fighting disclosure must be much higher since 2007.

      • Empty assertion.

        One thing we do know is that 14% of all FoI requests were made by a single British Labour “researcher”. And even if there is some truth to what you suppose, looking at the matter absent the prism of prejudice, we know that there may be many reasons why refusals may have increased. One such reason might be an increase in politically motivated frivolous or vexatious requests.

        • Marching on Together

          “The reality is that political parties and their spin-doctors have learned how to use FoI legislation in the service of their petty politicking.” Empty assertion.

          “even supposing the Scottish Government has acquired legal advice this cannot tell us anything we don’t already know” Empty assertion, unless you know what the advice says.

          “those making the request knew with absolute certainty that the Scottish Government would be obliged to refuse and to take the matter to court if necessary” Empty assertion.

          “there cannot possibly be anything politically embarrassing in whatever advice the Scottish Government may have obtained” Empty assertion, unless you know what the advice says.

          “There can be only one reason for refusal and that is the imperative to defend the principle of confidentiality of ministerial advice” Empty assertion.

          “It is a motive which has nothing whatever to do with public interest and everything to do with puerile partisan point-scoring” Empty assertion.

          “we know that there may be many reasons why refusals may have increased.” Yes, and one reason was the drive to find ridiculous ways of refusing requests, such as the whole batch that were refused a couple of years ago on the spurious ground that information was being sought and not a copy of specified documents.

          • Not exactly adding to the discussion, are you?

            I do know what any advice given to the Scottish Government says. We all know. Or, at least, all of us who don’t have our heads firmly embedded in our own fundament. As has been endlessly explained in terms accessible to pretty much anything above the intellectual level of a mollusc, there are only so many possibilities in relation to Scotland’s post-independence EU status. These options are very well understood. There are no new options. If there were, somebody would have described them by now.

            And if FoI requests are improperly submitted then it is quite right that they should be refused. It is a legal process, after all.

            • Marching on Together

              I respond in the same tone as you. Your first response to mine did not exactly add to the discussion either.

              “I do know what any advice given to the Scottish Government says.” I don’t, and those of us not privileged to in receipt of SNP briefing for cyberhacks do not do either. We can make informed guesses, but that is not the same as knowing.

              “And if FoI requests are improperly submitted then it is quite right that they should be refused.” The Scottish Executive refuses properly submitted requests regularly, or delays complying which is the same thing, as the story in the Daily Telegraph today demonstrates.

              You also seem to have a fundamental misunderstanding about the whole concept of FoI – it is completely irrelevant the identity of the person making the request or the purpose for which the request is being made. Nowhere in the legislation are these made factors which can be taken into account in processing an application. It is our right to know, subject to certain defined exceptions, whether it is me, you, or a Labour Party researcher.

              It is also irrelevant what the opinion on the EU accession actually says, whether it will add to the sum of human knowledge in the slightest, as to whether a request should be made or acceded to.

              Or are you one of the coterie surrounding the Dear Leader who thinks that only officially approved information should ever be released to us mushrooms?

            • Ernesider

              “On 2 January, 1080, Gregory VII wrote to the Duke of Bohemia that he could not allow the publication of the Scriptures in the language of the country …….The pontiff feared that the reading of the Bible in the vernacular would lead to irreverence and wrong interpretation of the inspired text”
              The online Catholic Encyclopedia article on SCRIPTURE, by A.J. Maas

              “As it was in the beginning, both now, and always, and to the ages of ages. Amen”

            • Marching on Together

              It seems that Pope Gregory VII had a point, even though it took several hundred years for it come to pass. 😉

    • andrakeith

      Excellently put Mr. Bell. If a little scary. Are you always that strident?

      Isn’t it just possible though that a government would naturally wish to keep a tight grip on an issue which it felt was important for the fulfilment of its goal. Isn’t that suspicion, however slight, not enough to merit an equally self-serving FoI request, if only to test it. Fight political interest with political interest. If they can withstand the pressure put on them by other politicians then their reasoning and position are proved all the stronger.

      I agree that many of the comments here, mine included, probably credited the FoI request with a degree of saintliness it might not have merited. On the other hand, your argument that the issue is a political one and that there is nothing to be gained by the Government disclosing the advice it received might also be questioned. Were the Government claiming that the issue was as stated in Commons Library Standard Note SN06110, then that would be fine. However, the Government claim a little more than that. Almost that it is, more or less, a done deal. If they also claim it is because of advice from civil servants, I think we, at least, might want to know how they arrived at their conclusion. Did they poll all EU member countries for instance. Did they poll EU citizens. I am not sure how else you achieve a degree of confidence as to how a political decision will go at some point at least two years in the future.

      For the record, I am passionately pro Independence, pro Europe, and since I read your comment, pro you. But not in ‘that’ way, obviously.

      So just where do you stand on the whole Rangers business?

      • I prefer to think of my offerings as “robust” rather than “strident”. But you are, of course, free to infer whatever tone you see fit.

        The Scottish Government’s position on post-independence Scotland’s status in relation to the EU is, in my view, simply explained as a reasonable assessment of the relative merits of the options available – as set out in Commons Library Standard Note SN06110 and bearing in mind that this is a political and not a legal decision.

        Coming at the matter from this perspective we need only consider what would be the least problematic resolution from the point of view of the EU and its member states. We can safely discount the “dissolution” scenario, in which both Scotland and RUK become accession states for what I would hope are obvious reasons. Why would the EU want a debate and referendum on membership anywhere in the EU – far less in England where there is a significant amount of euroscepticism? Obviously, they wouldn’t! So the onus is on those who suggest they would to spell out what exactly is the overriding imperative which might compel the EU to open this can of worms. Some have suggested other secessionist movements in Europe as a reason. But that doesn’t hold water. In the first place, the circumstances are different in each case. And these secessionist movements exist anyway. They are not going to be created by Scotland becoming independent. And any encouragement these movements might get from Scotland’s easy transition is marginal. Certainly not enough to outweigh the disruption of a major debate about EU membership.

        Pretty much the same argument applies in the case of the “continuation and secession” scenario. The fact that the debate and referendum around an accession process would only relate to Scotland hardly makes a difference. It is still something the EU would do pretty much anything to avoid. Because it would still be perceived as an INTERNAL debate on membership – which is quite a different thing from the matter of accession states such as Turkey.

        And then there is the issue of citizenship. People in Scotland are EU citizens. There is simply no provision to strip them of this status. If the EU is reluctant to have internal debates about continued membership can we really see any possibility of them legislating to deprive Europeans people of their citizenship? It’s a whole new can of worms.

        On sober reflection, the “two successor states” option is the most likely outcome by such a massive margin that the SNP is perfectly justified in presenting it as a firm position. Bear in mind that, lacking any positive arguments for the union, anti-independence campaigners are relying on poisoning the referendum debate with fear and uncertainty. It is not generally a good thing for governments to appear uncertain in any circumstances. In relation to the independence debate the Scottish Government is required to work doubly hard to counter the appalling negativity of the British nationalists.

        On the “Rangers business” I stand at a distance which never quite seems sufficient. I have less than no interest in the shady business and tiresomely convoluted politics of football. But I am unavoidably aware that Rangers was (is?) an important part of what is, by some measures at least, an important part of Scotland’s cultural and commercial environment. That being so, I would regard it as perfectly proper that the First Minister should take a certain interest in the affairs of the club. Whether he then did anything improper remains to be seen. But I very much doubt it. Alex Salmond just isn’t that kind of fool. And If he did cross a line, perhaps it was a small error committed with the very best of intentions. Although we can hardly expect that it will be portrayed thus by an almost universally hostile media.

        • andrakeith

          I agree with much of that. Except the bit about other states not wishing to open up the secessionist can of worms. Some countries may well take the view that a relatively peaceful and straight forward secession for Scotland would encourage their own secessionist movements to up the ante a little. If we use the Occam’s razor principle, surely, the calculation will be to publicly oppose Scotland’s assertion and to ultimately use their veto on EU membership at a cost of next to nothing as opposed to possibly spending lots of money and political capital on keeping a secessionist movement in their place.

          I think the real reason many countries will not stand in our way though is the fact that Scotland would be a net contributor country. The real opposition would have come from countries who feared another competitor for CAP handouts.

          On the Rangers thing. I too would like to see the government getting more involved. Not specifically for or against one club or another, but to help all of us find a better way to organise our national sport. What is happening is shameful on so many levels.

          • There is some validity to the argument that countries such as Spain might have concerns about Scotland’s easy transition to independent membership of the EU and the “encouragement” that this might give to secessionist movements in, for example, Catalonia. The question is, how big are these concerns? Are they great enough to outweigh other political considerations?

            Given that 1.5 million people turned out to support Catalan independence recently I don’t think that’s a movement that needs much encouragement. Any “ripple-effect” from Scotland could only be relatively tiny. Much the same argument can be made for other secessionist movements – although probably to a somewhat lesser extent.

            We should also bear in might that the Spanish Government’s line to date has been to stress that there is no equivalence between the circumstances of Scotland and Catalunya. They have emphasised this by stating that there would be no objection from Spain to Scotland becoming an independent EU member state. It is hardly credible that they would undermine their own position by using a veto which would inevitably be seen as motivated by fear of the very parallels that they deny.

        • ecojon

          @ Peter A Bell

          I think you raise an interesting point over citizenship when you state that: ‘People in Scotland are EU citizens. There is simply no provision to strip them of this status’.

          I would dispute your interpretation on citizenship as I believe that the vast majority of Scottish residents regard themselves as being either Scottish or British Citizens. Even say French residents resident in Scotland would, I believe, regard themselves as French Citizens first rather than a EU Citizen. Btw I’m sure you will forgive me for being unable to reveal the secret legal advice that leads me to my conclusions – you’ll just need to take my word for it that the legal advice is correct 🙂

          However, back to the majority: If independence happens then I would assume that even if EEC format passports are issued by the newly independent state that those who apply for one will regard themself as Scottish rather than as a EU Citizen whether we are allowed to enter that currently creaking institution or not. I am pro-EU btw although I have no more wish to live on Euro handouts than UK ones.

          And, for people like myself, I will retain my British passport and nationality and will still not regard myself as an EU Citizen. If that should ever become a problem for an independent Scottish government then I will remove myself south of the Border.

          I also think that you have failed to take into account the way in which the current economic situation will affect the future structure of the EU with it almost inevitable that there will be an inner core of northern european members and an outer fringe of southern european countries. Will there continue to be free movement between these countries and whatt about the accession states. Without free movement I can’t see how there can be such a thing as EU Citizenship as I don’t think a Schengen-style solution would cut-it.

          I also detest strident SNP supporters who dismiss people like myself who would like to see some answers about how the many very complex issues of State will be dealt with in an independent Scotland. I am afraid that I do not have trust in many politicians and in no political party to accept glib reassurances as to the future without it being spelt out in detail and what legal enforceable safeguards will be put in place.

          That is an absolute minimum requirement and without it an independent Scotland might well be very surprised at the wealth in people it stands to lose in its brand new venture or perhaps gamble.

          • @ecojohn your opinion that “I would dispute your interpretation on citizenship as I believe that the vast majority of Scottish residents regard themselves as being either Scottish or British Citizens.” in reply to Mr Bell does not alter international law or European law. People born or naturalised into a member country of Great Britain and Northern Ireland (and a few others) are British Citizens AND European Citizens. You can regard yourself as a Scottish National but that does not on its own (for the present) confer citizenship. The European Commission states the following –
            ” Any person who holds the nationality of an EU country is automatically also an EU citizen. EU citizenship is additional to and does not replace national citizenship. It is for each EU country to lay down the conditions for the acquisition and loss of nationality of that country.
            Citizenship of the Union is conferred directly on every EU citizen by the Treaty on the Functioning of the EU .” http://ec.europa.eu/justice/citizen/
            If you decide to remove yourself south of the border and retain your British citizenship (assuming that the rump UK accepts that position, which is likely but not certain) you will continue to be an EU Citizen.
            It is worth pointing out the the word “nation” does cause some confusion here as both the EU and the UN accept that Scotland is a nation due to its separate existence as a nation for over 1000 years and by virtue of its separate legal systems, it is not a “State” however, it is part of a unitary state.
            No one can state a definitive legal position for the continued membership of the EU, either for Scotland OR the rump UK unless it is tested in the courts however the various legal and political arguments are exhaustively examined here – http://eutopialaw.com/2011/11/14/685/ , which concludes that ” Scottish independence is unlikely to provide either Scotland or the rest of the UK with a “get out of (EU-) gaol free” card.” as there is no provision for secession from the EU in the treaty and therefore any secession would be subject to political negotiation. (Finland is the given example)
            My conclusion (not definitive) is that, on the basis of probabilities, Scotland and the rUK would remain members of the EU in some form but the exact terms for Scotland AND the rUK would be subject to negotiation and therefore a political rather than a legal process.

          • You are confusing people’s individual sense of identity – of which nationality is a component – and their legal citizenship status. The people of Scotland ARE legally EU citizens regardless of how they choose to identify themselves. And there is no process by which this citizenship can be stripped from them. Were the EU to seek to block Scotland’s succession to independent membership of the EU they would be creating a massively anomalous situation where EU citizenship, with all that this implies, was held by the people of a country which was not a member of the EU. Any move to implement a process whereby EU citizens could be stripped of their status en masse would be fiercely opposed across the entire EU and could conceivably run into problems at the UN.

            We come back to the core question. Why would the EU give itself such a headache when it is not necessary? Why would it get itself entangled in such a legal morass when there is a very obvious and relatively cost-free alternative?

            Notwithstanding your foolishly facetious comments regarding supposed “unanswered questions” on independence, the foregoing illustrates the fact that there are at least as many questions to be answered by those who insist on continuing to withhold from Scotland its rightful constitutional status. The difference is that British nationalists stubbornly deny that these questions even exist while the independence movement, despite your unwillingness to listen, has constantly sought to elucidate matters to the fullest extent that this might be possible.

            But there comes a point where people like yourself just have to be a wee bit grown-up about things and recognise that not every situation is amenable to the simple answers you demand. Sometimes it’s complicated. Being mature means dealing with the complexities of life and not simply stamping your feet in a petulant tantrum because it’s all to confusing for you.

            Sometimes it all comes down to a matter of personal judgement. And if you are among those who judge the people of Scotland to be less capable and less worthy than the people of other nations then don’t be surprised is those people are offended by by your contemptuous attitude. Don’t be surprised if they want to know the basis of your low opinion.

            I, for one, will not be surprised if you decline to respond.

            Personally, I have total confidence in the people of Scotland. I am perfectly certain that we will deal with the problems and possibilities of independence at least as well as any other people. I’m sure we’ll get by somehow even if those who despise us choose to go and live elsewhere.

      • Ernesider

        andrakeith

        “So just where do you stand on the whole Rangers business?”

        Has this question become the latest Shibboleth?

        • Marching on Together

          I prefer to sit on the whole Rangers business, or perhaps even squat. 😉

        • andrakeith

          You think maybe I have caught the dreaded Old Firm disease.

          Symptoms
          1. Ascribing a predetermined viewpoint on anyone based on their footballing allegiance
          2. Seeing the world only through blue, or green tinted glasses
          3. Believing that nothing else really matters
          4. Loss of sense of humour
          5. Paranoia

          Oh jeese, I hope not. How did you catch it? Or were you joking? Or, hey wait a minute, what school did you go to? I went to Saint Timothy the Ursine College for Delinquent Dundonians. It was tough let me tell you.

          Shibboleth………thank f*** for Wikipedia

    • carl31

      Peter, thanks for your post.
      The request is politically motivated – agreed. I would suggest that were roles reversed and the SNP in opposition, they too would use such political tools and moves as a stick to beat the SG administration (let’s hypothetically say its Labour). That’s the game.

      Not for them the very simple explanation that confidentiality of ministerial advice is in and of itself a principle worth defending. Indeed, a principle that MUST be defended and would be defended by any Scottish Government of whatever hue.

      I agree that the confidentiality of ministerial advice (CoMA) is a principle worth defending. But I also view that the Public Freedom of access to Information (FoI) is also of great worth, in my view greater worth, and this would be pressed by any opposition. Indeed, I could make a fair stab at rewriting your post but swapping round the SNP/SG and the opposition, and swapping CoMA for FoI.

      The thread wasn’t intended as political, but raised questions over the clash of valid principles, and the issues raised over cross-border application of the principle that holds precedent.

  12. Richboy, don’t classify politicians as they whom you see and hear on t.v. They are the word merchants of politics and to most of them its just a career. The real…REAL politicians are well…US in a real democracy we are the politicians. We are the one’s who need to be involved in the day to day debates and the cut and thrust of everyday issues. They…the careerist politicians…are merely our servants or representatives in parliaments. However, as is per usual in this country most of us leave it to them to do all the talking and thinking and gerrymandering of said issues so is it any wonder that we become cynical.
    Politics is too important to leave to the careerist politicians. It’s just a daily game to most of them. My advice is become your own politician and make democracy work. After all democracy is not a flag to be waved its a tool to be used…otherwise we just live in a five year dictatorship…and that’s just not on…is it!

  13. timtim

    Being a long time supporter of Independence I find it amazing that upon achieving this aim our first act would be to surrender our Independence to a Federal Europe . The EEC is controlled by a man unelected by the peoples of Europe

    ecojon says
    And then there is the currency issue

    Indeed ,and this is the real crux of the worlds problems
    First they reduced the silver content in our coinage from 92.5% to 50% in 1919 to pay for WW1 ,then they reduced the silver content in our coinage from 50% to 0% in 1946 to pay for WW2 – then the reserve currency of the world $ cut all ties to it being backed by Gold in 1971 and the FIAT currency system throughout the world was introduced ,this along with fractional reserve banking allowed the banks to print and issue currency at will thus debasing its value on an annual basis. There is no intrinsic value in paper , it is a token that survives only through faith and trust in those issuing it . When that faith and trust departs then we have Zimbabwe Weimar Argentina Hungary and countless other examples of hyperinflation .
    If the people are indebted to the banks through large loans /mortgages etc then the banks repossess the land property and business that cannot meet the ever rising cost of servicing those loans . The currency eventually crashes and a new currency is introduced by the very same people who engineered the collapse in the first place .
    The average cost for a gallon of petrol in the US is $3.80
    If however you still have some pre 1965 90% silver coinage then it will cost you 20c .
    The politicians and the banks have been stealing the peoples money for nearly 100 years and replacing it with tokens ,they are now embarking on stealing the peoples assets and they will finish by stealing their democracy
    What we need is Independence from politicians and banks

    Amschel Rothschild once said
    “give me control of a nations monetary supply and I care not who makes the law

    Thomas Jefferson warned the people
    “If the American people ever allow private banks to control the issue of their money, first by inflation and then by deflation, the banks and corporations that will grow up around them (around the banks), will deprive the people of their property until their children will wake up homeless on the continent their fathers conquered.”

    Alex Salmond was asked ” what did you agree behind closed doors”
    mind your own business said Alex

    The name of the game is control and enslavement of the people
    Independence , freedom,transparency and clarity are not on the agenda

    rant over

    • Andrew Fraser

      Actually mild inflation is a good thing for ordinary people: the years from 1931 (when Sterling left the old gold standard) to the 1970s or later were the best years we have had for growth in living standards – yet as you say with continuous inflation throughout that time. No coincidence. Reverting back to a gold or silver standard or otherwise to a policy of zero inflation would put us back to the society of the Victorians: good for the old established super-rich families, terrible for everyone else. Ireland is suffering now for being shackled into the low inflation Eurozone rather than being able to freely inflate out of depression like Iceland. Paul Krugman and Dean Baker (http://www.cepr.net/index.php/publications/books/the-end-of-loser-liberalism) have much more on this.

  14. aten

    The more I learn of the snp administration, the more I’m reminded of a guid auld Scot’s word…sleekit. Al- Megrahi, alcohol pricing, hmrc/rangers, NATO and now the EU. why the continual reliance upon secrecy and obsfucation? Do they not trust the Scottish people enough to provide us with ALL of the information necessary to make an informed decision?

  15. carl31

    Carl31 is my blog name. My real name is David and I put the above piece together. Thank you for posts and comments on it so far.
    The origin of it came when listening to Scotland’s FoI commissioner on the radio a week or so ago, and realising that one of those ‘Quantum Mechanics of the Law’ situations had popped up. I found it interesting that release of the info in question is deemed both in, and not in, the Public Interest, at the same time, with neither position being ‘wrong’. I then got some thoughts down in text about this, it turned into a couple of pages and Paul was kind enough to post it on his blog when I submitted. Thanks Paul.

    I have sympathy with the position that full and frank advice would not come from civil servants once they know that all that they say could be under extreme scrutiny at some point in future, but IMO the right of the taxpayer and public to know how their money is spent and what their Government is
    up to holds superiority. Also, I view the Government as an arm of the State that serves Civil Society, so in effect it is the Public’s information in any case.

    I also find the cross border issue, that could end up a contradiction, a very interesting quandary. Following the logic that the taxpayer has the right to the info, how does that play when a non-English taxpayer seeks info from Westminster on a subject discussed by their devolved administration and a UK government department, under circumstance where Westminster holds against the release of info, but the DA is bound to release? Without examining the issue exhaustively, it comes to mind that another West Lothian type question might be on its way.

    David

    • ecojon

      @ carl31

      I enjoyed the post David 🙂

      I would love to be able to give details about the case I mentioned above but can’t. But it left me with the impression that the bunch of civil servants I saw in action were unable IMHO to form a coherent let alone credible or legally correct argument. Their sole defence was to use FOI exemptions to frustrate and save face.

      Ultimately they baulked at testing their legally threadbare opinions in court but they used every inch of muscle they could – with taxpayers’ money – to defend their position which ultimately proved futile for them and cost more at the end of the day than what was originally requested to settle the matter. But who cares it was only public money being wasted.

      Why should someone giving a legal opinion be frightened of it being subjected to public scrutiny. They don’t need to be identified so what is the problem? Is it because they lack conviction in their ability and, if so, they should find another line of work.

      And as to Peter A Bell I think he must have an alter ego posting on football sites as he displays the necessary paranoia in plenty. It matters not what the government colour is – it’s the transparency that’s important.

      My understanding is that the current SNP position has nothing to do with whether they actually reveal the advice but whether they admit to having received any other than the sources which have been referred to or is it just something swirling around in wee Eck’s heid – and I have to say since the former economic advisor to a bank congratulated ex Sir Fred the Shred on his purchase of the bank that nearly destroyed RBS I have had no faith in his economic judgement.

  16. jeanette doyle

    Not a reply but a question . If Scotland votes for independance and has to apply for membership , surely the rump of the UK would be in the same position and face the same veto ? Might be a fillup for anti-EC campaigners ,

  17. mick

    weather we gain access right away or not should not be a issue if you want the country to be independent then there might have to be small sacrifices at the beginning we would be more than welcome in europe and if not look at turkey they are doing well also when you look at independance dont look at it money wise do it as in whats good for the future coffers of our children after the rfc tax case and there control on the country would it not be saver to stay in the union although not richer theres lots up for debate with it all ,the thing a worry most about is what if you have to go and work in england for 6 weeks ??? no matter what a would vote yes just to make my country my own maybe this would be good or not only the future knows also scotland should be nuke free and like ireland with no army going abroad for unjust wars now that a can grasp and promote

    • lawheid

      “We chose to abolish tuition fees…”

      YEAHHHHH!!

      “we chose to abolish prescription fees in the national health service…”

      YEAHHHHH!!

      “we chose a minimum price on alcohol…”

      um….Yeah!

  18. mick

    http://www.snp.org/contact-us if any1 wants answers to any questions just email and ask also you can get info in taken part in the yes vote

  19. mick

    the scottish frontline services are backing the yes campiagn so if its good for nurses and police then al vote for that

    • ecojon

      @ mick

      Certainly a very encouraging turnout for the NO Vote as 5K for such a heavily-promoted rally in Edinburgh is a real slap in the face for the SNP who must be wondering about the scale of defeat they face in the referendum.

      Perhaps an analogy might be found in the claim that the Old Firm can’t compete to their best when separated. Maybe the SNP can’t mobilise against an unorganised opposition, that doesn’t really exist, which will make the ultimate rejection of SNP separatism for personal gain all the sweeter for ordinary Scots.

      • mick

        @ecojon alexs fabric of our nation did not help what we have to remember is its not a political party were voting for but a change in the system there will be labour men voting yes and lib cons a hope it happens but the worry for me is what happens when we go to england to work and vis versa also passports for non eu people whats the script there is it uk or scottish visa theres lots to answer and debate on it

      • I never fail to be struck by the eagerness with which British nationalists put their ignorance on display as if it were a badge of honour. Which it may well be among bigots.

        The turnout for the March and Rally for Independence was more than double what these British nationalists claim. The lies amply demonstrating how much they fear such public displays of support for Scotland re-asserting its rightful constitutional status.

        The turnout for a NO vote amounted to a couple of hooded BNP/SDL eejits who promptly got themselves arrested. Bitter Together must be so proud.

        And you are so ill-informed as to imagine that the rally was an SNP event. It wasn’t, of course. Neither the SNP nor Yes Scotland had any part in organising the event. But I’m sure you’ll prefer whatever stories the voices in your head are telling you.

        Another of these British nationalist lies which gets an airing in your ill-informed little rant is the one about the rally being “heavily-promoted”. The reality, of course, is that the unionist media turned itself inside-out in its efforts to ignore the event. Only when the turnout proved so much greater than they had feared were they prompted to respond with the kind of lies and disinformation that are swallowed whole only by the pathologically credulous.

        But perhaps the most entertaining aspect of your little “offering” is your determination to declare the result of the referendum two years in advance. That kind of stupidity is really quite hilarious.

  20. mick

    the only issue a have is the fabric of the nation comment but we have the option to vote alex out at elections and change to greens or labourer what rfc managers will take part in no vote a remember alex mcliesh doing a unionist add for the torys when it was the last referendum on power at holyrood it will be hard to listen to tax cheats lol

    • ecojon

      @ mick

      I have listened to the SNP mantra with more than a little wry humour that after independence they will dissolve and stand under their separate political banners.

      Well there are very few instances in history where a ruling elite voluntarily relinquished power as even when goals are attained excuses can usually be found to soldier on.

      I only need to look at the two major parties in ROI to shudder as it’s almost impossible to separate them and seems to stretch back to what side grandparents supported in the Irish Civil War which to the historically-challenged is not the same as the Uprising of 1916.

      • Marching on Together

        Politicians like power and office. Many in the SNP and Labour hate each other. If we are being asked to believe that post-independence, that the SNP will give up power, dissolve itself, and then many of its members will join the left of centre party left standing aka The Labour Party, then they really must think that we are all gullible idiots.

      • Ernesider

        Ej – you wrote

        ” I only need to look at the two major parties in ROI to shudder as it’s almost impossible to separate them and seems to stretch back to what side grandparents supported in the Irish Civil War which to the historically-challenged is not the same as the Uprising of 1916.”

        Not so any more. The greed of the boom years and the hysterical thirst to identify and punish those perceived to be responsible for the bust, seem to have finally obliterated the last vestiges of ancestral enmity.

        “All changed, changed utterly: A terrible beauty is born.”

        Don’t take the Yeats quotation too seriously.

  21. mick

    if your going to vote yes give this comment a thumps up

  22. mick

    if your going to vote no give this comment a thumps up

  23. Marching on Together

    The Dear Leader has been at it again in trying to hid more information from an FoI request: http://www.telegraph.co.uk/news/uknews/scotland/9563343/Alex-Salmond-spends-370000-on-entertaining.html

    It took 6 months to release the information, not the 20 days it is meant to take.

    • ecojon

      @ MoT

      I adopt the line that if you’ve nothing to hide or be ashamed of then publish and be damned and the delay is obviously just part of the stalling process which should be dealt with by punitive fines being included in the FOI legislation.

      However, I don’t worry too much about the amount spent but rather on the detail of who it was spent on and why – the devil’s in the detail I always find.

      But thanks for the link: http://www.telegraph.co.uk/news/uknews/scotland/9533614/Jim-Sillars-SNP-a-totalitarian-and-intellectually-dumb-party.html

      I missed this story and had a good laugh to myself as it seemed I was reading about the Stalinist party that Sillars was in control of in 1976. He actually had the same sort of probs as Salmond in that he demanded the party drop its Nato Out stance as it couldn’t be accepted as a credible party unless it did. Little changes and politicians still can’t be trusted.

  24. mick

    the bill seems well low should it not be more promoting is not cheap and the bill to me shows a lack of entertianing for job creation would it not be in the millions and also non profit work like creating ties in under developed countrys it all seems cheap to me

    • Marching on Together

      It is not the size of the bill which is important, but the fact that the SNP have been trying to hide from the public information, which they possibly might have considered embarrassing to them.

  25. mick

    thats something that should be included in our new constitution transparcy of ever £ spent by gov.

  26. mick

    all the shopfitting is via english companys due to london being the money hub of the uk what if a english company wants a lightbulb fitted at tesco in wick say will the man coming from birmingham to fix it need a passport and pay a fee at carlise its a nightmare for workers that are cross border

  27. mick

    also what will be the stance on far right wing partys maybe were safer in a union as we all know how deluded some are in this country its all got to be answered soon so we can make a decission on it all

  28. carl31

    I did not intend the piece to be a political one but the comments have gone that way. Tuppenceworth…

    On Independence, I have no strong opinion either way believe it or not. I can see the merits of both sides. This is likely because my mother is a staunch NAT and father soundly Labour. I had other family, I was close to when younger, who was involved deeper in active politics for the Labour Party. She always held that the SNP were simply ‘Tartan Tories’.

    I dont intend to vote for Independence, but if the referendum were to return a Yes vote, I would be relaxed about it. My mother is getting on a bit and I would be happy if she lived to see an Independent Scotland in her lifetime. Its unlikely though, IMO.

    Also, with the greatest respect to Alex Salmond and his skill as a political operator, I am not a fan of his. I especially did not like his appearance at Leveson in particular. It was plain to any ‘fair-minded and informed’ observer that News International’s outlets had acted atrociously. Our First Minister appeared and proceeded to offer succour to them, chastised the Observer on flimsy foundation, and made clear he was a buddy of Rupert Murdoch. He’s not all bad, but it seemed to me that he offered testimony for the Orcs that day (and I know plenty of like minded Nat supporters).

    Leaving allegiances aside, I have a suspicion we wont see a referendum at all.
    Why?
    What the Nats need for a true victory is a sound majority – I would say 51% is clearly not it, but instead over 60% is needed. This would scupper any subsequent Unionist challenges of ‘false result’. 51% doesn’t cut it. Given that 60% is wanted, and there is a possibility of ‘cold feet’ voters on the day, they want probably 63% or more in the polls as they approach the referendum. Whilst support for the YES has increased since the launch of that campaign, I would think that its not progressing at the rate needed to make that 60odd% realistic. Consider further that the NO campaign hasn’t even started in earnest, and the picture looks gloomier still. If the situation doesn’t change much through this autumn/winter, the strategy of delaying the vote becomes more attractive. Given that these referendum buses are infrequent and dont come along every 4 yrs, but instead the next one would be at least a generation away, then the risk of ploughing on into a defeat makes the outlook worsen still.

    What price delay under this scenario? The FM could delay and would have to deal with the flak of breaking the promise of a referendum in this parliament, but an operator such as he could easily set the blame at Westminster’s doorstep. On the other hand, Westminster know that the cuts programme progresses and there is a risk of a wave of support for YES on the back of a similar wave of protest against these cuts. Maybe some kind of delay until brighter skies appear on the horizon doesnt look a bad option for the Unionists either.
    This scrum could be collapsed with both sides blaming each other.

    Also, should there be a referendum at all, I think there should be a further choice – a further question in the referendum. My impression is that there is a large body of opinion out there that neither wants Independence nor wants the status quo. As it stands, they will be completely unrepresented on the referendum ballot paper.

  29. Brian J

    I suspect that this is all nothing more than political posturing designed to make the FM look as though he is hiding something when in fact he is simply maintaining longstanding political convention.
    The legal advice, which I have no doubt exists, will not be definitive. It cannot be because their is no precedent. There is no provision in the primary legislation setting up the EU because accession from within was never perceived as a potential scenario. Lawyers will say you might get in because… Then again you won’t get in because….
    It will be resolved by a political decision not a legal battle.
    It strikes me that those who argue that Scotland as an independent state will not get automatic entry to the EU need also to consider whether without Scotland as a continuing part of the UK, the UK can continue in membership. There will no longer be a UK and so the entity that remains will not be one which signed any treaties or is recognised as a member state.

  30. John Douglas Bayne

    The European Community issue is in fact a huge paradox for the Scots Nats.It is difficult to see how independence from the rest of Britain can lead to a freer more democratic Scotland if the alternative is a non sovereign state in a largely undemocratic EC federal superstate.I wonder if the Greeks or Italians think free democracy is working for them at this point in time.The EC direction is clearly towards further dilution of the sovereignty of individual nations.”It is in truth not for glory,nor riches,nor honours that we are fighting,but for freedom-for that alone” are words that should be recalled to Alex Salmond any time anyone asks him about the EC question.

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