Scotland, Catalonia and the fate of Clara Ponsatí

The proposed extradition of the former Catalan education minister Clara Ponsatí in recent weeks has reignited constitutional passions in Scotland.

After a European arrest warrant was issued by Madrid on charges of rebellion and the misuse of public funds in last year’s unsanctioned Catalonian independence referendum, Ponsatí handed herself in to police in Edinburgh, expressing disappointment that European governments – including the UK – had remained silent over political prosecutions.

She said she would “robustly” contest her extradition at hearings which begin this week, on April 12 and 18 at Edinburgh Sheriff Court.

There has been an outcry over the suggestion that Ponsatí could be forcibly sent to Spain, but at first criticism was along entrenched constitutional grounds.

While Tory MSP Murdo Fraser railed against what he called “Hispanophobia” and booked his annual holiday to Spain, a crowdfunding campaign to help with Ponsatí’s legal fees reached around £230,000 in the first few days.

Protestors gathered outside the Edinburgh police station where Ponsatí first handed herself in and then at the capital’s Spanish embassy before moving as a crowd to the Sheriff Court for Ponsatí’s first appearance.

Among them was former presiding officer Tricia Marwick, who had been an international observer at last year’s Catalan referendum. “It has got to be a political solution, not a legal solution,” she said.

But when the UK and Scotland is facing a new relationship with the European Union, a political solution could be a difficult ask.

External relations secretary Fiona Hyslop wrote to the Spanish ambassador. “It is appropriate to make clear the Scottish Government’s regret that Spain has chosen to pursue this route and to involve Scotland’s legal system in what should be a matter of political debate and resolution,” she said.

Despite the tribal responses, Scotland is not Catalonia. Scotland’s independence referendum in 2014 was agreed between governments and all participated, while Catalonia’s version last year was unilateral and ultimately deemed illegal by the government in Madrid.

Former PM David Cameron was said to be ready to resign if Scotland had voted to leave the United Kingdom, while Spanish premier Mariano Rajoy denied a referendum had taken place at all.

Spanish authorities had seized ballot papers, arrested officials, supressed digital communications and used heavy-handed police suppression ahead of the vote. Afterwards, political proponents of the referendum were arrested while others fled the country, including Catalan leader Carles Puigdemont.

Puigdemont’s deputy Oriol Junqueras, who was reprimanded in Spain, has been refused leave to transfer to authorities in Catalonia. Demonstrations in Catalonia over the arrests have recently been met with more riot police.

Amnesty International has described Spain’s response as “excessive”, but EU leaders have consistently backed Rajoy.

Indeed, after Spain issued the European arrest warrants for six Catalan politicians, Puigdemont was detained in Germany. A court has since rejected “rebellion” as grounds to extradite him.

While it may be wrong to frame Catalonia as a proxy for the Scottish national question, Rajoy’s arrest warrants have brought the issue to a head in Scotland anyway.

The success of Ponsatí’s case will depend on judicial protections and whether the charges can relate to Scots law.

International diplomacy is, of course, a reserved matter, but the UK Government has remained silent on Ponsatí’s case.

“Spain is a key ally of the United Kingdom, and of course we support its right to uphold its constitution,” Leader of the Commons Andrea Leadsom said of the case, before adding she had “some sympathy” with those who were concerned about the European arrest warrant.

Nicola Sturgeon has also said the Scottish Government will not intervene in the judicial process.

The Scottish Government, she said, “strongly oppose the Spanish government’s decision to seek the arrest and imprisonment of independence-supporting politicians”, but she later took to Twitter to remind supporters she could have no role in the legal process.

“I hope there can be an understanding of the position as outlined and the importance of protecting due process and the independence of our legal system,” she said.

Spain is also one of the EU countries she hopes could allow Scotland to remain in the EU after independence, or even help negotiate a special deal post-Brexit from within the UK.

There is also the small matter of many SNP supporters voting for Brexit in the referendum.

But Ponsatí’s lawyer, Aamer Anwar, says the fact Scotland has its own legal system is significant.

“Our defence in court may make uncomfortable reading for the Spanish government in the full glare of international scrutiny,” he told reporters. “We are confident that the outcome will make it even more so.”

Politically, then, Ponsatí’s case has potential ramifications for Brexit, the British constitution and Scotland’s relationship with the world.

Perhaps that is why Scottish Labour’s MEPs have also spoken out against the extradition of Ponsatí.

Writing in the Herald, Labour MEP Catherine Stihler said: “The intention was that the European Arrest Warrant would be used if there was a significant risk to the public, such as in terror-related cases.

“It was used, for example, to allow the extradition of one of the suspects in the 2005 London bombings from Italy.

“What it was not intended for was its use by a member state to target political opponents.

“This case was not about Scotland’s constitutional divide,” she added.

“Despite my strong opposition to Scottish independence, I believe the Spanish authorities have made a terrible misjudgement.

“Arrest warrants should not be used to settle domestic political disputes in this way.”

She called for the European Commission to intervene, writing to President Jean-Claude Juncker.

“We cannot simply have one of our own members suppressing and quashing political divergences within its own state,” she said.

“Around the world, other countries have attempted to quash political movements asking for change. How can the EU remain critical of such tactics if it remains silent about Spain?

“This should not be an issue that is linked to support or opposition to Scottish independence. This is a matter of natural justice that should unite everyone in Scotland, the UK, and across Europe.”

Former Scottish Labour leader Kezia Dugdale and former Labour health minister Malcolm Chisholm tweeted their support, alongside MSPs such as Pauline McNeill.

Stihler’s ally on the Scottish Labour for the Single Market group, Ian Murray MP, was less sympathetic.

Ponsatí should be “given the opportunity to clear her name in her own country’s courts,” he tweeted.

But there was concern from Ponsatí’s employer, the University of St Andrews.

“Clara is a valued colleague and we are committed to protect and support her,” said Principal Sally Mapstone.

“As her employer and an institution committed to the defence of free speech, we are deeply concerned by recent developments, their motives and potential consequences.

“In the current circumstances, we believe there are legitimate arguments that Clara is being targeted for standing up for her political beliefs. That is anathema to us, and we will continue to offer her every appropriate support, while respecting due legal process.”

A group of Spanish academics rebuked Mapstone in a letter.

“It is important to remember that Ms Ponsatí escaped to Belgium from Spain following the illegal ‘unilateral declaration of independence’ by her regional government,” they said.

“That is, not because of political ideas expressed democratically, but because of a series of acts destined to separate Catalonia from Spain against the law and the wishes of its citizens.”

The question for the judge, then, is whether Ponsatí’s charge of rebellion can be interchanged for the crime of treason in Scot’s law. Like the two independence movements, they are not necessarily interchangeable, but European arrest warrants are rarely refused.

And if Ponsatí is extradited, how will the SNP square the circle of pro-EU rhetoric with solidarity with Catalonia?

Scotland’s future relationship with Europe is high on the agenda amid the muddied Brexit befuddlement, as characterised by a speech SNP Europe spokesman Stephen Gethins gave to a Brexit event in London recently.

Gethins suggested Scotland could play a “crucial role” in building a new bridge and relationship between the UK and the EU when the dust settles, “regardless of our future constitutional status, and regardless of the final outcome of the negotiations”.

This, he said, was because of how many stakeholders in Europe “recognise Scotland in its own right” and that the country voted to remain.

But as the silence over the European arrest warrants has revealed, most EU countries do not appear to want to give credence to the Catalan independence movement.

If Scotland does decide to confront Spain on this, it could risk isolating itself from the union the SNP is so desperate to rejoin post-Brexit, as well as the one it is desperate to leave within the UK.