The UK could soon join Belarus which is the only state not to recognise the
European Convention on Human Rights
Scottish independence: Human rights threat and the Edinburgh Agreement
Today's intervention into the independence referendum debate by leading European advocate Scott Crosby, raises a number of questions of a profound democratic nature for Scots as they decide how to vote next September.
Should the UK government continue to threaten withdrawal from the European Convention on Human Rights (ECHR), then, when it comes to voting in the referendum, it will be viewed by many as more of a referendum on whether or not Scots want to have their basic human rights guaranteed or risk their removal.
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If Scots vote 'no', then the nation will apparently be bound to that result by the Edinburgh Agreement signed between First Minister Alex Salmond and Prime Minister David Cameron. The possibility that the peoples of Scotland will be shackled to a state which does not guarantee basic human rights will rightly attract outrage.
The implications of Scotland being trapped in such a predicament are incalculable.
However, there is another disturbing dimension to the binding nature of the Edinburgh Agreement. The issue was raised by Dr Jim Cuthbert in a recent economic report titled 'The Mismanagement of Britain'. Cuthbert expresses concern over Scotland's limited power to leave the Union should there be a 'no' vote next September and the UK subsequently suffered an extreme economic shock which he argues is “likely”.
Dr Cuthbert warns "imagine that a few years later the UK suffered the profound economic crisis which, as the analysis in this paper suggests, is likely [...] the final clause of the Edinburgh Accord would be used to stop any move towards Scottish self-determination. What this indicates is the nonsensical nature of the final clause, which should neither have been offered nor signed, and which should now be declared a dead letter. Scotland doesn’t need that clause to secure the right to self-determination: but the clause could cost Scotland dearly."
Cuthbert's economic analysis of the UK takes no prisoners: "the present UK economic model has profound, and growing, problems. In addition, the current UK political leadership (of all parties) appear utterly paralysed in the face of impending catastrophe: and have no credible strategy for rebasing the UK economy."
The repercussions of Cuthbert's assessment are unfathomable but would, one might imagine, help fashion a compelling case for a 'yes' vote next September. However, Cuthbert argues that Scotland would also suffer from said calamity post-independence because of the SNP's plan for Scotland to continue using the British pound. His recommendation to the 'yes' camp is unambiguous: "In the light of this analysis, nationalist strategy on the 2014 referendum needs to be rethought, and current tactics reversed."
Should Cuthbert's dire warnings come to pass and the UK economy suffer a profound shock with Scotland trapped either inside the sterling zone or by the Edinburgh Agreement then what do these futures hold for Scots?
In circumstances of economic shock, extreme forms of politics can and do emerge and the state may increase its power over the citizen as the population agrees to reforms of their rights and freedoms in return for promises of personal security. However, an independent Scottish state would be bound by the ECHR and the human rights of our people would be protected - our English, Welsh and Northern Irish cousins would be less fortunate.
With the current ruling UK government threatening to leave the ECHR, a 'no' vote would create a perfect storm scenario for the Scottish population. Not only will our human rights be at the "mercy" of unlimited Westminster government power from which we apparently could not extricate ourselves but we may, if Dr Jim Cuthbert and others are to be believed, simultaneously face the very type of economic conditions in which states transform into dictatorships.
Under normal circumstances most reasonable people would find it highly improbable that Britain could ever come to resemble a former Eastern European communist dictatorship however the recent Guardian revelations over the UK’s surveillance infrastructure and how Government Communication Headquarters (GCHQ) has sought to keep it secret from the public will serve to infuse such concerns with feelings of threat.
The revelations provide grounds for believing that withdrawal from the ECHR may now be considered necessary and urgent by GCHQ should they consider that the current challenge in the European Court to the legality of their surveillance programme seem likely to prevail.
As the referendum draws closer and these concerns increasingly focus the minds of Scots' voters, it is conceivable that growing public alarm could force Westminster to perform a U-turn on its ECHR withdrawal policy. However, it is not clear it will do so as that would mean its intelligence agency giving up its extensive and expensive surveillance apparatus.
The mounting pressure from Scotland’s pro-independence campaigners could prove so potent as to be overwhelming for Cameron's government and the Better Together campaign. With the frightening message that unless their fellow Scots vote ‘yes’ they risk losing their fundamental human rights, nationalists will find converting legions of Scots from ‘no’ to ‘yes’ voters much easier than previously imagined.
It would then be for David Cameron’s government to choose between surrendering Scotland and its oil reserves or its GCHQ surveillance programme. Or, perform a policy U-turn as a temporary expedience. At this stage Scots would want a hard guarantee that the UK will remain bound by the ECHR and so be at odds with Britain’s intelligence community with all that that might mean..
So, how likely is the UK government to relinquish its surveillance programme?
GCHQ works closely with other Western intelligence agencies, most notably America’s National Security Agency (NSA). As many as 850,000 US private contractors and NSA employees have access to GCHQ databases, according to the Guardian. Documents analysed by the Guardian show that GCHQ had, by last year, tapped 200 fibre-optic cables and was processing 600 million ‘telephone events’ each day. The newspaper equated the amount of tapped data to “sending all the information in all the books in the British Library 192 times every 24 hours”.
As part of the UK’s Tempora programme, Britain is still building a £1bn hub somewhere in the Middle-East to hack and analyse emails, telephone calls and internet access on behalf of Western spy agencies, The Independent recently revealed.
Relinquishing such powers and dismantling such a vast surveillance infrastructure is bound to be strongly resisted by the UK’s GCHQ. And the idea that a change of UK government might avoid Britain leaving the ECHR is not so clear cut considering that Tempora’s Middle East station was originally established by a warrant signed off by David Miliband, who was then foreign secretary.
Public anger across Europe over the US/UK spy programmes are mounting, increasing the likelihood of further legal challenges. Over the weekend the German weekly magazine Der Spiegel alleged that the NSA has been spying on German Chancellor Angela Merkel's cell phone since 2002 and that President Obama lied when he assured Merkel that he was unaware of it when he has known since 2010. The Chief of Staff of the German Chancellery, Ronald Pofalla, recently assured German citizens that their nation's rights had not been violated. These new accusations will therefore enrage German public opinion – their people, after all, have some recent historical experience of a secretive and intrusive state.
Some suggest that the UK government’s posture is insincere as a state cannot be a member of the EU without being signed up to the ECHR. However, it is now Tory policy to have a referendum on EU membership if they form the next UK government in 2015.
Were David Cameron’s government to persist with its threat to withdraw from the ECHR, pressure may mount on Alex Salmond to perform a U-turn on his party's sterling zone policy and to have his government revoke the Edinburgh Agreement should Westminster refuse to remove clause 30 which appears to place Scotland in a constitutional bind.
The document though, appears to contradict international law which guarantees the right to self-determination. The irony of the Edinburgh Agreement being honoured by the Political Studies Association with their Democratic Innovation Award for 2013, would be lost on our political class as the gravity of such a constitutional impasse and the related ECHR concerns screamed across press headlines.
Certainly, the Scottish government would win outward sympathy across Europe with a demand to have Clause 30 removed as the entire continent would face instability if the ECHR continues to be flouted by the UK government.
Given the incalculable implications for Scots of the UK government’s ECHR policy, it will seem to many grossly irresponsible for the Scottish government to continue with the present arrangements provided for under the Edinburgh Agreement.
If the SNP government takes no action, Alex Salmond’s legacy may not be that he delivered Scots to the Promised Land but to something of a very different nature altogether.
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The Scots, as a “people” entitled under the United Nations definition to make their own decisions on their internal and external political status, did not require permission from anyone, in London or elsewhere, to hold a referendum on the issue.
The Edinburgh Agreement was therefore just a sop to save faces, to give the appearance that the UK Government had graciously given permission for the holding of a poll that they had no authority to prevent anyway.
The final clause may or may not have been inserted for nefarious reasons, but the weakness of the situation is that the Scottish Government did not immediately pounce on it and refuse to countenance it. I nevertheless agree with Jim Cuthbert that we must never allow it to be used as a weapon in future constitutional negotiations, and that has to be made crystal clear right at the present juncture.