Interview from about 9 mins 20 seconds in and his comment “I’m a Scottish minister, I don’t do things that are legal” is at 11 mins 10 seconds (roughly) in answer to a question asked from around 11 minutes. The issue on legality relates to a moratorium imposed on transferring quota rights. How this moratorium could be enforced is not explained (because any proposed sanctions would be potentially challengeable as ultra vires actions by the government).
After stumbling his way around that Lochhead was then questioned on a suggestion in the new fishing consultation paper that the SNP could leave the Common Fisheries Policy. The questions on that are from around 15 minutes in. Richard Lochhead is singularly unimpressive. He argues that the SNP would pull Scotland out of the CFP. He states “We believe we can amend the European Communities Act”.
Well, amending that Act in what way? Saying EU law applies to Scotland apart from the CFP would be ultra vires EU law and – applying the principle in R v Secretary of State for Transport ex p Factortame – any domestic statute contrary to EU law (even from the supposedly sovereign Westminster Parliament) would be struck down. That’s waht you sign up for, when you join. So step one, attempting to do something in domestic law to address the EU issue is not feasible. But, Lochhead’s not a lawyer – so let’s assume he meant something else – rather than amending the EC Act. Let’s give him the benefit of the doubt. So assume that he is indicating that the SNP in an independent Scotland within the EU would withdraw from the Common Fisheries Policy.
However, a policy to withdraw Scotland from the Common Fisheries Policy is not feasible within the EU context. The inherent contradiction in the SNP approach passes them by (or rather they dissemble as to the powers they would have in order to win votes, when the position is clear). The SNP advocate “independence within the EU”. As background they argue that an independent Scotland would not have to apply for admission to the EU because – they claim – Scotland would be a successor state to an existing member and would automatically be a member of the EU. In relation to fishing (a matter crucial to SNP support in the north east of Scotland) the Common Fisheries Policy – hated by the fishermen – is a fundamental part of the EU treaties. Member states cannot unilaterally withdraw from existing provisions. Any attempt to withdraw is contrary to EU law, subject to sanction at the Court of Justice (meaning whopping big fines) and any legislation attempting to implement the domestic policy will be struck down (and as happened with the Factortame case mentioned above, the challenges can come from those form other Eu states, using domestic UK (in that case English in any future situation Scottish) courts to initiate the striking down of the legislation. So, if an independent Scotland is successor state to an existing member they are stuck with the CFP.
If they were to require to negotiate to join the EU (as some argue) if Scotland was to be independent then any new member has to sign up to the treaty provisions – including the Common Fisheries Policy – otherwise you don’t get to join the club. New members states cannot pick and choose which treaty provisions to accept. Oh, we want the free trade but don’t want the fishing policy. Fine replies the EU – you don’t want these fundamental treaty provisions? Then sod off.
Either way – you’re stuck with it, and any attempted to change comes as one voice among the many member states. Lochhead and the Nationalists’ suggestion that they can withdraw from the Common Fisheries Policy is simply mendacious.
Either they believe they can do it – in which case they are too stupid to run the country (and that I don’t believe) – or they know they can’t do it – in which case they are lying.
Which is it?