European advocate Scott Crosby argues that Scotland must not follow
Westminster down the path to isolationism IMAGE: Scott Crosby
No Man is an Island: Scots should reject isolationism
Opinion by Scott Crosby
In the Financial Times of 24 October 2013, Philip Stephens writes that if England “cut itself off from its own continent the intelligent response of Scots would be to swap union with a diminished England for independent membership of the EU. There lies an irony. Eurosceptics say they are marching in defence of a sovereign UK. Nothing could be more calculated to shatter the union of England with Scotland than Britain’s withdrawal from Europe”.
Withdrawal from “Europe” has to be an issue in the Scottish referendum. So too is tactical voting. Even those opposed to ending the British Union, but interested in constitutional reform, should consider voting yes in the Scottish referendum.
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A majority yes vote would put the ball in Scotland’s court. It would open the door either to negotiating constitutional reform within the UK, and perhaps even to the birth of a proper, written, constitution, or to the re-establishment of the Scottish State, unthinkable without such a constitution. And it would leave the option open for Scotland to claim EU and Council of Europe membership in its own right should the rest of the UK be removed “from its own continent”. A majority yes vote would keep all of Scotland’s options open. A no vote would close them down.
“Europe” means the EU and also the Council of Europe, which is the institution to which the European Human Rights Court is attached. Both are vital for our continent. The broad distinction between them is that the EU caters for Europe’s mercantile interests and the Council of Europe for Europe’s non-mercantile needs.
It is important to make this distinction so as not to confuse the two institutions. But the distinction between mercantile and non-mercantile is important also when considering Scottish statehood because, although economics are important, the question of statehood transcends the economic question. In other words if independence is sought as a means of achieving greater material well-being, the question is what happens if there is a downturn or the expected increase in wellbeing does not come about – would one seek a new union?
The statehood issue is essentially humanistic. It comes from the idea, expounded by Neil MacCormick in Scotland and others elsewhere, that just as individuals mature only once they have learned to govern themselves, so too peoples mature only once they are self-governing. To reach maturity and to fulfil their potential Scots should, so the argument goes, run their own state. That, I submit, is the real issue in the statehood debate.
The Scots would run their own state not in isolation from but in cooperation in the first place with the European family of peoples. It is important then that Scotland does not allow herself to be separated from that family as a result of following England and the rest down a solitary path to isolation. She must retain the rights of the Scottish people as part of the Council of Europe, including the Human Rights Convention, on the one hand and its rights as EU citizens on the other with full access to and full participation in the internal market.
But the sad thing is that, at least in respect of human rights, the UK has already begun to sever ties with “Europe”.
The mere fact that government ministers are decrying the Court of Human Rights and showing impatience to withdraw from the Human Rights Convention not only questions the authority of the Court and diminishes rights protection in the UK but is also part of a process which is already distancing the people of Britain from the European family of nations. There are two elements to the distancing process.
First, the message to the electorate is that the UK does not need the European human rights system, because the “common law” gives equal protection. This is of course untrue. To put it tritely, if the Convention made no difference, there would be no point in withdrawing from it. More seriously, there are in the UK no guaranteed or absolute rights under its piecemeal and deficient constitution, whereas the Convention does provide guaranteed and inalienable rights, which the UK is found to infringe from time to time. So the common law does not give equal protection. But the political point is that this policy of withdrawal encourages the people of the UK to see the European system as something foreign and alien.
Second, the argument that the Convention gives no protection which is not available under the “common law” is not only manifestly incorrect but it has racist overtones. It is saying that our, and here reference is almost invariably to English, common law is so complete that the Convention is superfluous. It is then an argument of superiority – we are better – and it is racist for that reason. The political point here is that it encourages our neighbours to see us as foreign and therefore outside the family, if not beyond the pale.
Scotland should have no part of isolationism and the Scottish Government should say so loudly and clearly.
It could quote John Donne, an English poet, to support the argument:
No man is an island,
Entire of itself,
Every man is a piece of the continent,
A part of the main.
If a clod be washed away by the sea,
Europe is the less.
As well as if a promontory were.
As well as if a manor of thy friend's
Or of thine own were:
Any man's death diminishes me,
Because I am involved in mankind,
And therefore never send to know for whom the bell tolls;
It tolls for thee.
And come the independence referendum the Scottish electorate has the power to preserve its place in the European family of nations, whatever else it may wish in addition.
Scott Crosby is a partner in Brussels-based legal practise Kemmler Rapp Böhlke & Crosby. He retains copyright over the article above.
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