Guess what I’ve been up to as the sun shines? Reading the British government’s legal advice on independence, of course. You know, one of those efforts we’re not allowed to know the cost of.
Here are some headlines I’d forgotten since its publication last year.
The Treaty of Union is irrelevant
Scotland ceased to exist in law
It was merged into an enlarged England
It has no international personality in its own right
It cannot revert to pre-1707 independence
There you have it. Oh, did I mention that the rUK is continuator state as well and will inherit all the rights of obligations of international treaties and memberships…and Scotland might somehow manage to get back in if London and Brussels are charitable.
The work, paid for by you, and produced by James Crawford, Whewell Professor of International Law at Cambridge and Alan Boyle, Professor of Public International Law at Edinburgh, is one of those meandering, precedent-littered documents which takes us from Moravia via Panama and Syria to Slovakia in a (to me) bewildering trek of legalistic irrelevance. I’m sure it’s all terribly vital if you make a handsome living from mystifying others, and I think it’s not insignificant that both the learned gentlemen are also practising barristers at the English bar where spectacular effusions of legalistic formulations are rewarded with millionaire fees.
This looks like a classic case of getting what you pay for. (Not that we’re allowed to know how much). If the brief was to make a case for the defence of the British status quo, they got good value for our money.
If they were looking at the modern-day reality of a democratic wish to form a new state, they failed. Although, interestingly, that reality of politics and the need to compromise and accommodate, can be found the further down the text. For example: ‘Whether the accession process could be varied in Scotland’s case, given that it is already subject to EU law as part of the UK, might be a subject for negotiations’
Or: ‘All this is not to suggest that it is inconceivable for Scotland automatically to be an EU member. The relevant EU organs or Member States might be willing to adjust the usual requirements for membership in the circumstances of Scotland’s case’
Our learned friends hedge their bets and trim whenever the cold reality of a Yes vote, legally acknowledged by the UK, is confronted.
Suddenly there are no certainties about international law at all. I remember making a programme about the subject and finding that there is such a thing as international law, it’s that it won’t apply uniformly to any situation you name. It is a chameleon which changes into different shades depending on what question you ask it. And when it comes to the EU, international law is merely a backdrop, not an iron code. The rules are made by the Members and are adjusted according to the wishes of the Members and to hell with international law.
There are clearly political rather than legal insights in the document. Thus the reunification of Germany can be neatly written off as an “internal reorganisation” although it brought 17 million people into EU membership. Why? Because the other Members wanted it to and Germany is too powerful to be stopped. And it helped smooth the way for the single currency. Pragmatism in action.
Try this: ‘This is also not to suggest that EU law would necessarily no longer operate in Scotland unless it acceded as a new state…’
So although we would be taking ourselves outside the EU, somehow or other its laws would still apply while we’re out?
Then: ‘There are no legal rules within the EU that specifically govern whether it can automatically succeed to membership’. Throughout the long document, if you skip through the jargon, there are similar nuggets that make it clear Scotland’s position will be a matter of politics and expediency and the law is like the Highway Code – you read it and forget. What matters is: Can you drive?
Even our Unionist lawyer friends quote enlightened sources on EU pragmatism…. ‘A Scotland bent upon independence grounded in the clear democratic support of the Scottish people would create a moral and, given the international law principle of self- determination, probably a legal obligation for all member states to negotiate in good faith in order to produce such a result, but this solution lies essentially in the domain of politics, not law.’
Ironic, isn’t it? They’re supposed to prove that Scotland is hopelessly alone and excluded, yet the more you read their own words, the more it becomes clear that logic defies them. I had an email exchange with Professor Boyle where he distils his own work into one simple idea…that Scotland will have no difficulty entering all international organisations and… ‘The only matter in the advice that is of any significance outside a foreign ministry is whether, when and how an independent Scotland would become a member of the EU. That is a very problematic question as there are few rules, a lot of political decisions, and Spain to worry about.’
But my real beef with this stuff is the idea that our country doesn’t exist. What kind of message is that to give in a political campaign? ‘You’re so small and insignificant that you’re not real and don’t exist and the country you’re so proud of was absorbed into greater England and everything you’ve got today is courtesy of Westminster which can turn off the tap when it feels like it.’
Ok, then. I’ll vote No. We already know from the polling evidence that this Neanderthal electioneering is turning people off and still they keep it coming. It doesn’t matter for these purposes what the law of the ancients says, it matters what you want people to believe. It’s called politics. If people have been brought up to believe their country entered a voluntary union from which they have the right to extricate themselves, why on earth would you go to the trouble of constructing a highly dubious case to contradict them? What is gained? I doubt if more than one in ten Scots accepts the lawyers’ assessment. For example here are quotes from of our leading historians. First Ted Cowan, Professor of History at Glasgow: ‘The Treaty states that the two kingdoms of England and Scotland shall on 1 May 1707 and forever after be united into one kingdom by the name of Great Britain. By my reading if Scotland goes so does Great Britain’.
Then Dauvit Broun, also of Glasgow University: ‘The UK = Scotland + England. Take away Scotland, and there can be no more UK. I have not heard anyone explain why this should not be the case… ‘Britishness’ is not the same north and south of the border. For us, including the main currents of Scottish unionist thought and sentiment in the past, Britain was a partnership between Scotland and England. For the mainstream in England, though, it was (and is) assumed to be England in another form. It is assumed that, indeed, the English parliament continued (and with it the peculiarly English doctrine of the sovereignty of parliament). And, of course, we need look no further than the monarch’s numeral to see how deeply embedded this idea is: she is the first Queen Elizabeth of the United Kingdom of Britain, but persists in being Elizabeth II.’ He ends: ‘I fear that this mode of thinking about Britain among the English mainstream is so deeply embedded that they take it completely for granted. (It is, presumably, why England is in the remarkable position of being the only democratic nation with a football team but no parliament of their own–a statement they would not recognise because they regard Westminster as ‘their’ parliament, despite the third article of the Treaty of Union.)
There is a lesson in here for the Better Together strategists and they just don’t get it. Yes has been telling them since the start and they just don’t get it. The voters are now telling them and they just don’t get it. They need to get their knuckles off the ground and instead of paying lip service to optimism, actually try to find some. Here’s a suggestion. Reject the legal advice. Say it was a mistake. Say the government is not convinced it’s correct and it was insulting to say Scotland ceased to exist. Why? Because to say so is to deny the very thing they’re fighting for – the Union. I talk about what I call principled Unionism which works only if you accept your country is in voluntary partnership with England. Remove that concept and we become, as the lawyers indicate, little more than an adjunct to England. Not even a Unionist who claims to love Scotland can vote for that. The British might lose this Union because they failed to stand up for it.