Iain Macwhirter: Scots must not stay silent on Spain’s attack on democracy

Theresa May says the rule of law and the constitution of Spain must be upheld. Opposition parties have been silent in Westminster and presumably tacitly endorse the PM’s support for the actions of the Spanish state. Yet, if it were Vladimir Putin who was trying to seize elected politicians seeking safety abroad, I doubt if the Prime Minister would be so punctilious about observing the letter of another country’s law. Repressive regimes invariably cloak their actions in the mantle of legal process.

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First Minister Nicola Sturgeon made her opposition to the prosecution of Catalan independence supporters clear in a tweet at the weekend. However, she went on to say that she was “powerless to act” and that she would “say nothing further” in case it prejudiced the court case. Her self-denying ordinance has dismayed many in the wider independence movement. The former SNP MP George Kerevan called on his supporters to “bombard the Scottish Government with appeals to reject the warrant for Clara’s arrest on the grounds that it was politically motivated”. Activists wanted the First Minister to instruct the Lord Advocate to reject the EU Arrest Warrant in court. This would have amounted to government-sponsored civil disobedience and Nicola Sturgeon doesn’t go in for that kind of thing. She is also a strong supporter of the European Union and is clearly unwilling to side with Brexiters in opposing an EU arrest warrant. However, the First Minister’s self-imposed silence doesn’t mean that others can’t speak out. There is no issue of sub-judice here.

Ms Sturgeon’s predecessor, Alex Salmond, is a virtuoso in political noise-making and he made clear on LBC on Sunday that, had he still been in charge, he would have rushed to the Scottish Parliament for an emergency statement to pump up the political volume against the actions of the “undemocratic” Spanish state. This would have forced the opposition parties to take a position on the extradition of Ms Ponsati. There has been a deathly hush from Scottish Labour and the Liberal Democrats, presumably because they don’t want to give succour to separatists. This is regrettable, because this is not about the rights and wrongs of Catalan independence but about an abuse of elementary civil rights: the right of all elected politicians to be immune from unlawful arrest by an authoritarian regime.

Let’s be clear about this. The European Arrest Warrant (EAW) is supposed to be used for drug dealers, human traffickers and terrorists. It is an abomination for it to be used to seize and transport democratically-elected politicians. Ms Ponsati faces a trial in Spain for “violent rebellion” and “misuse of funds”. Yet the Catalan independence movement has been entirely peaceful and democratic throughout its supposed “rebellion”. The only violence has been from the Spanish police who beat up independence supporters in October, fired rubber bullets indiscriminately and injured hundreds of peaceful citizens.

Since when has organising a referendum been seen as “violent rebellion”? And since when has using public funds to organise a democratic ballot been classed as “embezzlement”? The attempt to portray Catalan politicians as terrorists should be condemned by every politican in the UK who believes in political freedom, and every government in Europe that calls itself a democracy. Even the London Times, no supporter of separatism, has condemned Madrid “for treating a peaceful, slightly shambolic independence movement as though it were a dangerous rebel army”.

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As for the legal process, these are manifestly trumped-up charges and would be thrown out of any honest court. Unfortunately, they probably won’t be because of the nature of the warrant. Unlike conventional extradition, the EAW doesn’t allow judges in Scotland to test the validity of the charges or the evidence, but only rule on whether the alleged offender has broken a law in the country seeking the extradition. It is tick box justice. Prof Ponsati’s counsel, Aamar Anwar, will try to argue that the extradition warrant is unlawful because she risks being punished on account of “race, religion, nationality, gender, sexual orientation or political opinion”. This will be an uphill struggle, because she is not specifically being extradited for her beliefs, but because she has allegedly acted against the law on sedition and has “misused public funds”.

However, the law doesn’t take place in a vacuum and is always open to interpretation, especially when human rights are involved. Judges are not a race apart and they can and do take into account public opinion. Governments similarly are not required always to be passive recipients of the law. Ministers sometimes intervene after public outrcies – as in the release from prison of the “black cab rapist” John Worboys. Theresa May opposed the extradition to the US of Gary McKinnon on human rights grounds.

The body which can best orchestrate and express the outcry is the Scottish Government, which is why it is important that it doesn’t lapse into meek quiescence. There is perhaps a generational change here. Mr Salmond was a radical, outsider – an insurgent politician. Ms Sturgeon is much more like a member of an establishment government and has a greater respect for legal process. But there needs to be something in between, to prevent the Spanish state quietly getting away with a politically-motivated abuse of our justice system and a crime against democracy.