May 2014: Tomkins – Reasons to be Cheerful
The mood music in much of the Scottish press is that it’s all doom and gloom for the “No” campaign, and that “momentum” is building in favour of a “Yes” vote in September.
Some of my Nationalist friends are making the basic political mistake of believing their own propaganda and are beginning to lose their heads.
One even wrote to me last weekend suggesting that it was time I self-administered some Hemlock.
Such a lovely thought, that even one’s friends wish upon their political opponents the curse of suicide.
Never has it been more important to remember that we Unionists will win this referendum campaign by being the reasonable ones.
Let the petty Nationalists trade in poison. The one thing we won’t do is to win the argument by descending to their gutter level.
Jun 2014 Not getting involved Obama gets involved
Speaking alongside David Cameron, Obama publically stated that the interest of the US in the Scottish independence referendum was to ensure it retained a “strong, robust, united and effective partner”.
But the decision was “up to the people of Scotland”.
Obama was asked what the decisions on Scottish independence meant to him and the American people.
He replied: “There is a referendum process in place and it is up to the people of Scotland.
But the United Kingdom has been an extraordinary partner to us. From the outside at least, it looks like things have worked pretty well.
And we obviously have a deep interest in making sure that one of the closest allies we will ever have remains a strong, robust, united and effective partner.”
Lord Malloch-Brown, former deputy secretary-general of the United Nations expressed “surprise” at Obama’s comments.
Once a foreign office minister in Gordon Brown’s Labour government, he said the US would be wise to keep out of the Scottish independence debate claiming: “foreign, unsolicited advice is only going to anger Scots. I’m surprised that Cameron has got him involved. I don’t think it will be very helpful for anybody.”
Jun 2014: Tomkins – An independent Scotland has no claim to a share of the UK’s assets
Tomkins, said a separate Scotland would only keep UK assets located in Scotland. Scotland would have no claim on a share of assets like military bases and embassies outside its territory.
He said Scotland would be entitled to a share of all liquid assets, as well as debt.
First Minister Alex Salmond claimed Scotland would be due an 8.5 per cent share of all UK assets, including the contents of the British Museum.
Tomkins said: “The UK’s fixed property in Scotland would become the property of the new Scottish state.
Conversely, Scotland would have no claim on the UK’s fixed property in the rest of the UK or overseas. International law provides that State property would remain the property of the continuator State (the UK) unless it was located in the territory of the new State (Scotland).
The consequence of this is that institutions of the United Kingdom would automatically become institutions of the rest of the United Kingdom in the event of Scottish independence.” The UK Government backed the claims, saying: “A vote to leave the UK is a vote to leave its institutions.”
But a Scottish Government spokesman said: “Scottish taxpayers have contributed to funding all the assets owned by the UK state over many years. It is only fair and reasonable that Scotland should receive a fair share of the value of these assets on independence.”
Tomkins quoted: “International law provides that State property would remain the property of the continuator State (the UK) unless it was located in the territory of the new State (Scotland).”
But if the UK splits into its constituent parts then Scotland and England are the result (as the UK is a treaty joining the countries), no treaty, no UK . No Continuator State.
At the ending of the treaty England and Scotland, the new countries would be entitled to a fair share of the former UK’s assets.
If Westminster persisted on insisting Scotland had been extinguished when the UK was formed (but England was not), then how could Scotland continue to have its own laws, courts, borders etc? In fact how can there be a border if Scotland is no more?
Will the EU recognize the former UK government as representing the English? They are neither elected nor recognized as such. Or will the non-existent Scotland walk away from any residual debt held by the Bank of England as they are fully entitled to do?
Jul 2014: Tomkins-I am being forced to choose … would I want to stay in an independent Scotland as a No voter?
It is not difficult to tell which side Adam Tomkins is taking in the independence debate. The professor of public law at Glasgow University is sporting a wristband from the pro-union campaign “Vote No Borders”, while his office in the university’s law school is adorned with a “No thanks” postcard and large Team GB union flag.
On his website he describes himself as one of the leading constitutional law scholars in the UK and he’s certainly one of the leading voices arguing the union’s case on the internet.
He does so under his own name on Twitter and in various blogs, and he is the force behind “Notes From North Britain,” the website which bears the tagline: “Confessions of a Justified Unionist”.
That said, the pro-union space on the internet is not exactly crowded. There are no pro-union campaigns on the web to rival those of independence supporters such as “Wings over Scotland.”
Tomkins had 3385 followers on Twitter. “Wings Over Scotland” had 15,200, and fellow independence supporter “Bella Caledonia” had 16,300.
Tomkins says he could have decided not to take part in the referendum debate, a decision he describes as perfectly valid.
Instead, he declared as a “No” voter early on in the debate as he did not want to “just be an observer”.
“I decided I cared so much about this particular issue I was not going to approach it from the position of independent neutrality,” he explains.
“Although I hope I have been objective, fair and accurate in my assessment of the legal issues. “I am not a partisan, in the sense I don’t toe anybody’s line.”
Tomkins has been involved in various aspects of the independence debate, including advising the Tory Government on legal issues surrounding independence as part of an informal group of lawyers put together by Advocate General Jim Wallace.
He was one of two supposedly independent advisers to the Strathclyde Commission – the Conservative review of how Scottish devolution should work – and has written a series of blogs for “Vote No Borders” tackling topics such as such as the legal and political “realities” of what independence would mean.
But his views on the issue have a personal basis. Tomkins was born in England and spent the first 33 years of his life south of the Border, before moving to Scotland in 2003.
”I am English and British, but I live in Scotland,” he said. “My wife is Jewish and American, but lives in Britain as she would see it. My kids have dual US and UK nationality and they are Jewish: so multiple identities feel natural and normal.
“For me, that is what the independence referendum is all about – it is forcing me to choose, would I want to stay in an independent Scotland as a no supporter? I really don’t want to have to choose between staying in an independent Scotland and returning to the much diminished rump of the UK.” Why would he say that? An admission England would be poorer without Scotland.
His best result for Scotland? A win for the “No” campaign – an outcome he argues would trigger much-needed discussion where devolution should go.
He says devolving income tax to the Scottish Parliament would transform politics in the country by triggering a “grown-up” argument about tax and spend.
He would like to see unionists and nationalists work together to develop devolution further, arguing there has been a “silo” approach to constitutional politics for too long.
“The independence referendum has been divisive – it is necessarily divisive because it is a very emotive issue and because it is a binary question of yes or no – so it is necessarily polarising.
Once we have moved on from that polarising nature of the referendum, we need to move on to something we have never had – an all-party conversation about where we take Scotland’s constitution next.”
Aug 2014 – Tomkins – My Country is Britain
“For me Scottish independence means putting an international border across my country. My country is Britain.’ And there, ladies and gentlemen, is the definitive statement of Unionism in this whole campaign.
It comes, not from a BNP online nutter, but from one of the most esteemed Unionist commentators in the debate, the Professor of Public Law at Glasgow University, Adam Tomkins.
Tomkins was hailed as the best brain on the subject when he opined against Holyrood having the powers to stage a referendum. He was chosen as the key adviser on the constitution by Ruth Davidson when she set up her devolution commission.
He is adviser to the House of Lords Constitution Committee.
He is commentator of choice for the BBC on legal issues surrounding independence.
He is the definitive Unionist, happily domiciled in Scotland and totally committed to the retention of the United Kingdom.
He makes his declaration at the very top not of a pro Union production but in the intro to Scotland Yet, a documentary on the referendum story from the “Yes” perspective featuring many faces from the campaign.
Aug 2014:William Hague – Scotland is not a Country
Prior to the 1997 referendum William Hague said the official position of a UK government was to retain a right to reverse any or all aspects of power that might be devolved to a Scottish parliament.
The Scottish nation should heed the warnings of history.
A, “no” vote in the forthcoming referendum will send a resounding message to Westminster that Scotland wished to embrace all “National” aspects of UK government policy.
This will lead to a creeping reverse of, “devolution” in respect of a number of powers at odds with and giving difficulty to a Westminster government. As a start health, social, transport, agriculture, fisheries and the environment services are at risk of being taken back to Westminster control.
This will result in the re-introduction of prescription charges.
Extortionate car parking charges would be re-introduced at hospitals. Major restructuring, (privatisation) of health services will ensue so that there is a truly UK national approach to the delivery of health services.
Pensioners will be very badly affected being obliged to sell off their homes to meet the cost of care in the community since existing policies are not in compliance with Westminster.
University education will take a major financial hit, students will need to finance their attendance in further education.
There are many other aspects of Scottish life that will be adversely affected by the reversal of devolution but the Westminster government will simply refer moaners to the, “no” vote in the referendum.
Aug 2014: Crawford Beveridge, Chairman of Scotland’s Fiscal Commission and Council of Economic Advisers speaks out
Beveridge said Scotland could refuse to accept any UK debt and comfortably use sterling without a formal deal.
But Tomkins, a pro-UK constitutional lawyer and adviser to the Tories, said that Sterlingisation would raise significant problems for Scotland’s entry to the European Union, because currency stability is an essential requirement for new member states.
He said any doubts about Scotland’s long term currency and its failure to have its own central bank would raise significant questions about its ability to meet the EU’s legal tests for new member states.
“This doesn’t mean that an independent Scotland can’t become a member of the EU; it means that an independent Scotland’s negotiations would be more difficult,” Tomkins said.
He claimed that using sterling informally, a policy known as “sterlingisation”, would require Scotland to have its own financial authorities, use international banks to lend, and to have its own central bank rich enough to bail out Scottish financial institutions in an emergency.
Beveridge insisted that Scotland had several viable options for its currency, and could refuse to carry forward any of the Bank of England’s debt after independence, if UK ministers vetod a sterling pact after a yes vote.
He said the country could comfortably use sterling without a formal deal, or move to set up its own currency as an alternative after independence.
He added that if “politics trumped economics” and the UK rejected a formal sterling pact, an independent Scotland would have the right to pay much less of the UK’s historic debt – or none at all.
“There are many other viable options so I’m not that worried about currency, because every other country has one and we’re going to have one too,” Beveridge said, accusing UK ministers of “posturing” over a currency deal.
Fuelling the controversy that Scotland would favour using sterling without a currency union as an alternative “plan B”, Beveridge said sterlingisation could clearly work, as could a new Scottish currency.
Pressed during a question and answer session on why the Scottish Fiscal Commission said last year that sterlingisation was only a temporary, transitory option and not a permanent solution.
Beveridge agreed that was still the position. “It would be an unwanted transition issue,” he said. “It could last a short period or it could last a long period, I don’t have a specific number of years in my mind.
August 2014 – Tomkins – Scotland and the EU
I have no doubt that, were there to be a “Yes” vote in next month’s referendum, an independent Scotland would accede to membership of the EU.
But how this would be done, how quickly it could be done, and on what terms it should be done are three of the “known unknowns” of the independence debate.
To pretend otherwise – by insisting that there would be a straightforward, smooth and seamless transition – lacks all credibility. What is clear, however, is that were Scots to vote “Yes”, Scotland would not be a full member state of the European Union by the SNP’s projected independence day in March 2016.
An independent Scotland would start life outside the EU; even thereafter Scotland would enjoy EU membership on terms far less beneficial and generous than those enjoyed now by the Union.
Tomkins view of Scotland and the EU demeans his status as an expert in contitutional Law. The European view would take precedence.
Aug 2014: French Minister for European Affairs destroys Tomkins the EU will back an independent Scotland for EU membership
The former Chief of Staff of the French Minister for European Affairs, argued that the independence of Scotland would not cause their immediate expulsion from the European Union
He said: “the most reasonable solution” would be to negotiate independence and the EU membership at the same time. This way implementation of EU Treaties would not be interrupted.
He argued that, according to European jurisdiction, the EU is also a union of citizens underlining that there are legal and political arguments to defend that an independent Scotland would not be expelled from the EU.
He also discussed the founding principles of the EU (such as freedom and democracy), the obligation to negotiate a Member State’s withdrawal from the EU and the “interior enlargement” concept.
In this study, the French expert in EU affairs analysed the succession of states and their effect on international treaties.
He assumed that the United Kingdom would be the “continuing state”, while Scotland would be the “successor state”.
However, the United Kingdom has not signed the 1978 Vienna Convention on Succession of States in respect of Treaties.
He concluded that, while Scotland would have to be recognised by the United Nations, he believed that, regarding the EU, the issue had to be resolved following the EU’s own rules.
However, there are no precedents of such case within the EU, since the withdrawal of Greenland from the Union, which continued to be part of Denmark, is not applicable.
He highlighted that EU Treaties do not explicitly deal with the issue of secession within a Member State and the membership status of such part. Therefore, the matter is open to interpretation.
He admitted there are arguments to defend the necessity to reapply for membership but he also stated they weree neither “realistic” nor followed “common sense”.
He pointed out that “Brussels” is traditionally not in favour of “state implosions” and that the European Commission has publicly stated that “if a part of a territory of a Member State is no longer part of this State, the [EU] treaties would no longer be applicable”.
However, he stated: “this legal argument is not absolute, since there are other legal and political arguments to be taken into account.”
He cited the report drafted by David Edward, who used to be the British Judge within the Court of Justice of the European Union between 1992 and 2004.
Edward rejected Scotland’s automatic expulsion from the EU and advised a negotiated independence and EU membership at the same time.
The negotiations would be held between the referendum day and the day independence would be effective, having more than a year to amend EU Treaties accordingly. “A good will negotiation would be in everybody’s interest”
The French expert also firmly rejected the idea of placing Scotland in the accession queue. “Common sense prohibits assimilating Scotland to Moldavia, Montenegro or Turkey regarding their right to (re-)accessing the Union”.
He argued that is “not realistic” to imagine the return of border controls, the cancellation of EU fundamental rights for citizens or abandoning the Euro.
In this vein, he backed the concept of “interior enlargement”, although he acknowledged that this concept is not defined in the treaties.
However, this idea makes a clear distinction between states that are not part of the EU and therefore might not have their legislation in line with the EU and territories that are currently part of the Union, whose citizens are EU citizens and their laws follow European legislation.
In addition, he highlighted the legal argument resulting from article 50 of the EU Treaty, which deals with the withdrawal of a Member State from the Union.
The Treaties clearly say that the withdrawal is not automatic and has to be negotiated, specifically regarding the relationship of the State with the EU. Therefore, automatically excluding Scotland, without a negotiation, would be quite problematic regarding Article 50.
A third argument he presented, refers to “the founding principles of the Union: freedom, democracy, equality and rule of law”.
He emphasised that it would be “a paradox for the EU to deny the people of Scotland the right to self-determination or, to be more precise, by linking this right to the automatic expulsion from the Union, [which] decreases its effectiveness to zero”.
On top of this, he pointed out that by doing so, the EU would in fact be interfering with the Member States’ interior policy, something it wants to avoid.
In “vetoing” Scotland’s continuity within the EU, Brussels would completely interfere with the self-determination debate.
Finally, “the strongest argument” to support the continuity of Scotland within the EU is that referring to the link between the Union and its citizens.
The Court of Justice of the European Union stated that the EU is “a new” international law entity where “subjects are not only the States but also their people”.
This makes the EU a completely different international organisation, since there is a European citizenry.
In closing he pointed out that this dimension has been strengthened over time by numerous treaties and charters. “Even though the European citizenship is added to the national” one and “it does not replace it”.
The French expert argued that Scottish citizens could not have their EU rights taken away without seriously “harming” the case-law issued by the Court of Justice of the European Union and therefore damaging the EU’s legal and democratic principles.
Sep 2014: Scotland might vote no, but the key question is ‘what happens next?’
If there is a Yes vote in September, everything changes.
The shock to the rest of the UK will be profound and the asymmetries of the country will be even more pronounced: England would constitute 92 per cent of the rest of the UK instead of its current 85 per cent.
If there is a “No” vote this will mark Scots’ collective recommitment to the Union. But the Union would be foolish to react by breathing a sigh of relief and carrying on as if nothing had happened.
The United Kingdom needs a sustainable solution to its territorial constitution: one that works for each of the four nations comprising the state, and one that works for the centre, too.
At the moment we do not even have the institutional architecture through which such a solution may found.
We need to build it and we need to set it to work. It should aim at nothing less than a new Act of Union: a framework for the coming generations that will set the nations of the UK at ease with one another.
Something extraordinary is happening in Scotland, but it may yet be that its result will be extraordinary for the whole of the United Kingdom.
Sep 2014: Gordon Brown makes an appearance
Labour sources admitted David Cameron had “played a blinder” in his measured interventions.
But the campaign was faltering and the three Unionist parties, agreed to announce a timetable to further devolution in the final full week of campaigning.
It was late in the day, but if presented well it could look statesmanlike. And then the wobble:
On the evening of 6 September, the Sunday Times released details of its next day’s splash: a YouGov poll had given yes its first lead. “It was 48 hours of chaos,” admitted a senior Liberal Democrat adviser.
George Osborne, appearing on Sunday morning’s Andrew Marr show, gave the impression that a package of powers was soon to be announced, rather than a mere timetable.
Scottish secretary Alistair Carmichael, speaking at lunchtime on the BBC, chuckled and looked evasive when asked what was coming down the line, “with a wire coming out of his head that gave him a Mickey Mouse ear”, said one Labour source.
Miliband sent more staff to Scotland get a grip of “Better Together” in the final stages then spoke with Cameron, in his Commons office, where they agreed to cancel prime minister’s questions to travel to Scotland.
And then Gordon Brown pounced. Handed free lengthy, BBC Scotland prime-time television slots and hand picked audiences he took it upon himself to announce that there would be home rule for Scotland.
Indeed he not only promised a timetable, but sketched one out. “It looked very much like an attempt to steal the glory. He completely jumped the gun,” said a Downing Street source.
Whether that was the former prime minister’s intention, or not, Cameron, Miliband and Nick Clegg could only endorse it, no doubt grimacing at the emotive and potentially problematic issue of what home rule meant for Scotland – and the rest of the UK.
Brown had certainly “hit the mark”, as he did again in another barnstorming speech before the referendum. In his mind he savedthe union in its darkest hour.
September 2014 – Tomkins – A shattered union: the final days of the Scottish referendum campaign
“My view is that the Union can be saved once,” Tomkins, adviser to the No campaign, said. “If No win narrowly, the British state must reinvigorate itself – and that means more devolution.
If circumstances require a second referendum in a parliament or two’s time, (5-10 years) “Yes” will win by a country mile.”
Cameron’s greatest fear was that he would go down in history as the man who lost the Union.
However, the concessions he had to make to save it irritated many Tory back benchers.
Sep 2014: What the Hell is the point of a referendum when the outcome is decided before the vote???
Willie Rennie’s health and wellbeing reached its lowest ebb on September 7, when a Sunday Times YouGov poll put “Yes” ahead for the first time, on 51 per cent – a month earlier “No” had been 22 points in front.
But Tory Leader Ruth Davidson arranged a Unionist party conference call later that afternoon in which Rennie and Labour’s Johann Lamont participated.
Davidson and Lamont were evidently in the information loop informing Rennie that “Better Together” would win 55/45. How could they know that?? before the voting had started.
Bit weird that Rennie and the Lib/Dem Party were not kept informed by Labour and the Tories.
Sep 2014: Adam Tomkins – What Better Together learned too late
I suspect that when the history of the Scottish independence referendum campaign is written neither of the official “designated lead organisations” will come out of it shining.
“Yes” Scotland’s relationship with the Scottish National Party government in Edinburgh was too closeand their attempts to make the argument for “Yes” into a cross-party affair failed.
In the final weeks of the campaign, “Yes” Scotland disappeared from the airwaves almost entirely, as SNP minister after minister dominated the TV debates.
Patrick Harvie MSP, co-convenor of the Scottish Greens was, more or less the only non-SNP Yesser on prominent display.
Away from the official “Yes” Scotland outfit, it is certainly true that the broader “Yes” movement has been cross-party, but that has had much more to do with the plethora of unofficial grass-roots groups (Women for Independence, National Collective, Common Weal, Bella Caledonia, etc) than it had to do with the “Yes” Scotland leader, Blair Jenkins, and his team on Hope Street.
Only 200 metres away, on another of the main arteries in Glasgow city centre, Sauchiehall Street, was the headquarters of “Better Together”. They had to bear a far greater load than their counterparts in Yes Scotland, for two reasons.
First, the government backing them was 400 miles away and led by English Tories.
And secondly, the “No” side of the argument never produced anything close to the range of the grass-roots groups that so galvanised, energised and, indeed, mobilised the campaign for independence.
Vote No Borders played its part, as did Working for Scotland and George Galloway’s “Just Say Naw” tour, but their contributions were neither designed nor able to match what was happening on the other side.
There are some things “Better Together” did brilliantly and some others where, as they say, lessons may be learned.
Let’s do the opposite of how the campaign was so often perceived, and start with the positives. First, it should never be overlooked just how unusual a beast in British politics was the “Better Together” campaign.
Even in this era of coalition government in London, can there have been co-operation in peacetime between Conservatives, Labour and Liberal Democrats of the kind we have seen here?
Of course it was sometimes a bit rough. There were disagreements along the way. Yet these occurred as much within the parties as between them.
When it was stormy, the calm authority of Alistair Darling anchored the campaign. He may not be the most florid orator, but he had a steady determination and no little steel and, in private, he showed warmth and remarkable generosity.
There are few in the No camp more deserving of our admiration than he, whatever the result.
What Better Together did well was to identify the problems with the independence proposals that were put forward by the SNP.
Not that this was always very difficult. The No camp’s campaign was about: “What state do you want to live in?” It won that argument hands down.
We want to live in a state that keeps the Queen, that keeps the pound, that keeps the UK’s EU membership (opt-outs and all), that stays in Nato and that retains a social union across the whole of Britain.
But the “Yes” camp wasn’t too bothered if “Better Together” won all those arguments, because, it turned out, that was not the terrain on which it wanted to fight.
For the “Yes” camp, particularly in the closing weeks, the campaign question was something else entirely: “What kind of Scotland do you want to build, and why do we need to vote “Yes” in order to build it?”
The nearer polling day drew close, the less the campaign became about statehood and the more it became about policy, from child poverty to social justice, from Gaza to Iraq, and from health service “privatisation” to the bedroom tax and welfare reform.
The idea of “Yes” became a rhetorical vessel into which you could pour all your hopes and aspirations, all your fears and frustrations.
What do you want? Vote Yes and you can have it. What’s wrong? Vote Yes and it will go away.
“Better Together” was slow to see that this was the ground that the “Yes” campaign found so fertile.
Only in the last few weeks of the campaign did it finally realise that it had to do more than explain what was wrong with the other side’s proposals, and that we needed to say something ourselves about the better Scotland we wanted to build, and why we needed to vote No in order to build it. (newstatesman)
Comment: This letter was published one day before the referendum vote.
Sep 2014: The Quebec Tactic tricks gullible Scots
An English punter placed bet of £900K on No Vote and won £193k
He said he had studied the Quebec referendum in 1995, when the yes vote spiked sharply close to polling day. and decided the Scottish referendum was following the same cycle.
He admitted that the final polls showing a brief “yes” lead and then a very tight advantage to “no” had made him nervous.
But as in Quebec, the “no” campaign made a STRONG OFFER OF NEW POWERS at the final stage of the campaign, enough to cement their lead and too late to allow the “yes” campaign to respond.
Then the Unionists released “The kraken,” a Norse mythic god called Gordon Brown, who came with exactly the “political presence” the “no” campaign needed.
All of the new proposals were illegal since they were made well within the “purda” period but the Electoral Commission failed Scotland taking no action to declare the referendum null and void (Guardian)
Sep 2014: Britain is on borrowed time: the future of Scottish independence
Scotland voted No to independence.
In answer to the question, ‘Should Scotland be an independent country?’, 1,617,989 voted Yes (44.7%) and 2,001,926 voted No (55.3%) in a massively impressive turnout of 84.6%: the highest ever anywhere in the UK in post-war times.
The result, and campaign, will be rightly mulled over and analysed for years, but in the fast moving aftermath it is important to lay down some thoughts and calm-headed thinking.
Scotland has changed and shifted in how it sees itself and its future, as a political community, society and nation. Crucially, how others in the rest of the UK and internationally see Scotland, has also dramatically and permanently moved.