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  By a Newsnet reporter

Both the leader of Scottish Labour and a leading Scottish newspaper are today facing claims that they have misled the Scottish public over statements made by European Commission Vice President Viviane Reding, on the EU membership of newly independent states.

It follows an article in yesterday’s edition of the Herald in which the paper’s political editor, Magnus Gardham, claimed that Alex Salmond’s belief on EU membership of an independent Scotland “had been thrown into fresh doubt by one of Brussels most senior officials.”

According to Mr Gardham, Viviane Reding - in a letter to the Spanish Government - had “backed comments suggesting a newly independent country would have to apply for membership.”

The Herald article entitled 'Further blow for Salmond over Europe' pointed to a leaked letter to Spain's Europe minister, Iñigo Méndez de Vigo written by Ms Reding, which emerged in Spain's El Pais newspaper.

According to the Herald article, Ms Reding backed Mr Méndez de Vigo's claim that even if Catalonia gained independence from Spain constitutionally "then such a state would not in any case form part of the EU".

Johann Lamont

The Herald quoted Scottish Labour Labour leader Johann Lamont as saying: "Alex Salmond and Nicola Sturgeon continue to assert Scotland will remain in the European Union but admit they have no real legal basis to back that up.

"Now we see further doubt cast on Scotland's place in the European Union by the Vice-President and Commissioner for Justice, Viviane Reding, who believes an independent Catalonia would be viewed as a new state in Europe.

"Why would Scotland be any different?"

However, the segments of the letter published by the Spanish newspaper make it clear Viviane Reding said no such thing.  In fact, contrary to Mr Gardham and Ms Lamont’s claim, she was not asked to comment on a “constitutional” vote for Catalonian independence, but on a very specific unconstitutional situation.

Ms Reding was asked to comment on a unilateral declaration of independence by Catalonia without prior negotiation or agreement with Madrid.  Given the Edinburgh Agreement signed by the Edinburgh and London governments, then the hypothetical situation commented on by Ms Reding has no impact whatsoever on a newly independent Scotland.

Letter

Through the office of Iñigo Méndez de Vigo, the Spanish government's minister for EU affairs, the Spanish government sent a letter to the EU Commission detailing its legal objections to Catalan independence and an independent Catalonia remaining within the EU.  European Commission Vice-President Viviane Reding replied in a letter of 4 October, which was leaked to the Spanish newspaper El País and published on Monday of this week.

As the letter from Mr Méndez de Vigo and the reply from Ms Reding make abundantly clear, the scenario under discussion is the status of an independent Catalonia which had made a unilateral declaration of independence which had not been negotiated with Madrid.  

In his letter to the European Commission, Mr Méndez de Vigo wrote:

"In this sense, article 4.2 of the Treaty of the European Union is categorical when it indicates that the Union must respect the fundamental constitutional and political structures and the territorial integrity of member states, whose decision is the exclusive authority in these matters.  In consequence, the European Union cannot recognise a unilateral declaration of independence by a part of of a member state."

In reply Ms Reding wrote:

"In any case I want there to be no room for doubt about my position, expressed by President Barroso in the name of the Commission, and that I fully agree with the analysis of the European constitutional framework which you develop in your letter.  My intention was only to explain that I fully trust in the common sense and Europeanism of the Spanish in order to resolve this question within the domestic ambit to which it is proper."

Contrary to the statements by Ms Lamont and reported in the press, the attitude of the EU towards a unilateral declaration of independence by Catalonia has no bearing on Scottish independence, which would come about as a result of negotiations with Westminster following a yes vote in a legal referendum whose result Westminster has pledged to respect.

This is entirely different from the situation in Spain.  The inquiry from Iñigo Méndez de Vigo and Ms Reding's reply deal with the hypothetical situation of a unilateral declaration of independence by Catalonia following a yes result in a referendum which Madrid claims is illegal.

The exchange of letters between Ms Reding and Mr de Vigo follows controversy after a recent interview given by Ms Reding in which she insisted that she knew of no international law that would force newly independent Catalonia to be expelled from the EU.  Her remarks caused controversy and were widely reported in Catalonia.

The EC was quickly put under pressure by Madrid to withdraw the comment, and press statements were subsequently issued by the spokespeople of Ms Reding and EC President José Manuel Durão Barroso denying Ms Reding had made the claim.  However, Newsnet Scotland located the journalist who conducted the interview and published a recording of Ms Reding making the comments in our exclusive story that exposed the false EC denials - a story that remains unreported by the Scottish media.

Catalonia and Spain

The Spanish government is seeking to ensure that any new Catalan state would be forced to leave the EU.  The legal grounds on which Spain makes this argument have little or no relevance to the Scottish situation.  

Madrid maintains that the planned Catalan independence referendum is contrary to an article in the Spanish Constitution which states that Spain is "one indivisible nation" and that the government of Catalonia has no legal authority to hold a referendum on independence.  The government of Mariano Rajoy has stated that it will not recognise the outcome of any such referendum, which it would consider illegitimate, and that it would refuse to enter into independence negotiations with Catalonia.  

Ms Lamont's misleading interpretation has been reported uncritically in the British media, such as the report in Wednesday's Herald newspaper.  However the relevant paragraphs from the letters quoted in El País make it abundantly clear that Mr Méndez de Vigo's inquiry and Ms Reding's response concern a situation which has no parallel to the Scottish context.  

The original Spanish language report upon which Ms Lamont relied was further misinterpreted in Mr Magnus Gardham's news report in the Herald, in which he wrote:

"In a leaked letter to the country's Europe minister, Inigo Mendez De Vigo, she backed his claim that even if Catalonia gained independence from Spain constitutionally 'then such a state would not in any case form part of the EU'."

These comments were not made by Ms Reding, but rather by Mr Méndez de Vigo in his original inquiry.  Mr Méndez de Vigo argued that the EU does not recognise the right of any part of a member state to secede, and added:

"For the purpose of argument, if the Spanish Constitution were effectively modified in order to permit the celebration of such a referendum [in Catalonia] and if an independent state were to arise as the result of this, this new state would not in any event form a part of the EU.  This is the result of article 52 of the EU Treaty, in which the member states to which the Treaties apply are enumerated, amongst them the Kingdom of Spain.  Therefore, according to what is established in article 49 of the EU Treaty, this hypothetical new state would have to apply for membership and obtain a favourable decision from the European Council, unanimously, and the Act of Accession would have to be ratified by the Parliaments of all member states."

However the Spanish government also maintains that the Scottish referendum is an entirely different set of circumstances, which does not involve the "secession" of part of a member state and the creation of a new state from part of an existing state which then continued to exist as an EU member.  The position of the Spanish government is that the Scottish case represents the unique instance of the possible dissolution of a union between two kingdoms which is without parallel elsewhere in the EU.  

This position entails Spanish recognition of both the Kingdom of Scotland and the Kingdom of England (which includes Wales and Northern Ireland) either as equal successor states or equally as new states outside the EU.  The EU accession treaties were signed by the United Kingdom, they were not signed by either the Kingdoms of Scotland or England.

Speaking on 16 October during a meeting with Carlos Urquijo, the representative of the Madrid government in the Basque country, the Spanish foreign minister José Manuel García-Margallo explained this.  Mr García-Margallo's comments were reported in the Spanish media:

"Every country has its own different constitutional order and different history and in [the case of] Scotland, the creation of the United Kingdom, Great Britain, was born as a consequence of the union of two kingdoms, that of Scotland and that of England."

He added: "The British constitutional order foresees a referendum of this type, something which does not occur in any other country of the European Union."

Mr García-Margallo's comments are consistent with the opinion expressed privately by a former Labour Lord Chancellor to former Conservative cabinet minister Norman Tebbit, as reported in his column in the Daily Telegraph in February of this year.

The Spanish government's position is also consistent with the opinion given by a former President of the European Court of Justice.  Speaking in the 1990s, the late Lord Mackenzie-Stuart - a judge with the European Court of Justice between 1973 and 1988, and President from 1984-88, said:

"Independence would leave Scotland and something called 'the rest' in the same legal boat. If Scotland had to reapply, so would the rest. I am puzzled at the suggestion that there would be a difference in the status of Scotland and the rest of the United Kingdom in terms of Community law if the Act of Union was dissolved."

Eamonn Gallagher, former director-general of the European Commission and ambassador to the United Nations in New York, also drew the same conclusion, and said:

"Scotland and the rest of the UK would be equally entitled to continue the existing full membership of the EU."

Although Mr García-Margallo's remarks directly concerned the position of both Scotland and the rump-UK (AKA the Kingdom of England), Newsnet Scotland was the only English-language media outlet to carry the news.  It was entirely ignored by the mainstream Scottish media which continues to portray a one-sided view of events.

The only conclusion which can be drawn is that the English language media in Scotland have made no effort to read the original documents relating to the debate on Catalan independence, Spain and the EU, nor to understand the political and constitutional context of the Spanish state.  Instead it would appear that the Scottish media relies exclusively on press releases from the anti-independence parties when writing their supposedly objective news reports.

A Newsnet Scotland researcher contacted the Herald news department early yesterday morning by email pointing out that Mr Gardham's article was erronoeous.  We received neither an acknowledgement nor a reply.


The Kingdom of Spain and the Kingdom of Great Britain:  A comparison

The Kingdom of Spain was created in 1469 with the union of the Crown of Castile and the Crown of Aragón upon the marriage of Queen Isabela of Castile to King Ferdinand of Aragón.  The Crown of Aragón comprised a number of territories, the Kingdom of Aragón proper (the Spanish speaking region centred on the city of Zaragoza), the Kingdom of Valencia, the Kingdom of the Balearics, and the Generalitat of Catalonia.  These are now all Autonomous Communities within the Spanish state.  Aragón also held a number of other territories, most notably Sardinia, which are now a part of Italy.

Each of the former possessions of the Crown of Aragon and the Crown of Castile preserved distinctive legal rights and privileges, known as 'fueros' in Spanish.  These were abolished in the aftermath of the Spanish War of Succession in the early 18th century when centralised rule from Madrid was imposed across the whole Kingdom of Spain.

The Catalan independence referendum will involve only the Generalitat of Catalonia.  In the event of a yes vote in the Catalan referendum, the other former possessions of the Aragonese Crown will remain a part of Spain.  These territories comprise 3 out of the 4 Aragonese Kingdoms, and form the largest part of the territories and population of the lands of the former Crown of Aragón.  Spain minus Catalonia can therefore still claim it is essentially and legally the same Kingdom of Spain created in 1469, although reduced in size and population.

The United Kingdom of Great Britain and Northern Ireland originates in the 1603 dynastic union between the Kingdom of Scotland and the Kingdom of England.  The Kingdom of England incorporated Wales and held Ireland as Crown possession.  Although the first monarch to rule England and Scotland jointly in this way - James VI of Scotland and I of England - styled himself the King of Great Britain, his two kingdoms maintained their status as separate sovereign states.

In 1707 the Treaty of Union between Scotland and England abolished the parliaments of both kingdoms, and created a new parliament which met in the same building as the former English Parliament.  The Treaty specified that the union of Scotland and England created the new state of Great Britain.  

Wales was legally incorporated into England during the 16th century.  Ireland was a possession of the English Crown.  The later Union of Ireland with Great Britain in 1800 did not alter the character of the union of 1707 which created Great Britain.  Ireland was a colonial possession of the Crown where the native Irish were denied representation.  English law had been imposed on Ireland, and native Irish law suppressed.  Unlike the Treaty of Union of 1707, the Irish Acts of Union of 1800 did not represent a treaty between two sovereign states.

With a yes vote in the Scottish independence referendum, Scotland and England would revert to their prior status as independent states which share a common monarch, the Kingdom of Scotland and the Kingdom of England.  The state of Great Britain would legally cease to exist and both Scotland and England would be its legal successors.  Wales would remain a part of the Kingdom of England as it is now - the Prince of Wales holds his title by virtue of being heir to the throne of England.  Northern Ireland would likewise remain a possession of the English Crown.

Neither the Kingdom of Scotland nor the Kingdom of England signed the EU Accession Treaties, and neither figures in the list of countries which comprise the EU as listed in Article 52 of the European Treaty.  The Kingdom of England cannot claim that it and it alone is the successor state to the UK by virtue of the continuing "Britishness" of Wales and Northern Ireland.  These were possessions of the English Crown to begin with and as such have no bearing on the status of the Kingdom of England as a successor state to the UK.

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