An Auld Sang Gang Wrang

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’.

Act of Parliament of England ratifying Treaty of Union 280_tcm4-564530

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.


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65 thoughts on “An Auld Sang Gang Wrang

  1. Er… (shyly puts up hand at back of room) …I’m not sure I want to be in the EU. It doesn’t seem very democratic. It looks awfully like Westminster, where a room full of elected representatives is ignored by a small elite cadre in a room upstairs.

    But the Kinnocks, who are socialists, have done very well in the EU, so I suppose it must be OK.

    • Talking about small elite cadres, isn’t Kinnock junior standing for a UK Labour seat, while his wife continues as Danish PM? Wonder who will have the honour of voting for this jet-setting socialist?

      • Correct Marga.

        He’s been selected for the safe labour seat of Aberavon.

        As for his working-class, south Wales valleys background, this is what The Guardian said about him:

        ‘If elected in the safe Labour seat in the 2015 general election, he will join his mother, Glenys, and father in the Houses of Parliament, where they are respectively Lady Kinnock of Holyhead and Lord Kinnock of Bedwellty in the County of Gwent.

        Despite his marriage to Thoring-Schmidt, Kinnock is based in London and works for the business advisory company Xynteo. He has previously worked for the British Council and the World Economic Forum.’

  2. I don’t think Scotland will have any major problems with identity,personality or anything else which defines us as an independent state.
    I also don’t think we will have major diffculties being accepted internationally as such and in particular with regard to EU membership.
    The problems with our independence are all England’s in that their identity,personality etc will be subject to international review.
    The idea that they could just carry on calling themselves the UK without any changes to e.g. EU membership terms is risible.
    That is what worries Westminster.
    Thanks Derek.

  3. “The code is more what you’d call ‘guidlines’ than actual rules”

    Captain Barbossa got it, why can’t Westminster.

  4. Derek, with regard to the last paragraph above.

    “Never interrupt your enemy when he is making a mistake.”

  5. Derek

    Subway or Subvert .

    In addition to your comments above there is of course the ongoing orchestrated Westminster efforts to subvert the Independence movement through dishonest briefings by UK Embassies

    Nearer home we have the Glasgow subway stooshie . Wings ads banned but “ordinary-man” leaflets given the green light .
    These leaflets are produced by ordinaryman productions Ltd with a contact via . It then becomes interesting as ordinaryman productions is owned by Keith Howell .

    Keith Howell is a Board member of Skills Development Scotland (SDS) , run by Robin Crawford . The Scottish Government
    has a major input and interest in SDS and its’ activities in supporting and developing Scotland business through skills , education and training . It is generally accepted that SDS does a very professional mmand good job .

    However can it be right that a board Member of SDS , Keith Howell through Ordinaryman Productions Ltd which he directly owns , is the publisher and distributor of advertising material and an internet site which is targeting its’ message directly against the SNP and Independence.

    Surely there is , at the very least , a conflict of interests by Keith Howell and his outside business interests and his SDS position.

    This apparent conflict of interests , together with Ordinaryman funding , cannot remain unchallenged .

    There is certainly no ordinary man behind this latest onslaught against Independence .

    • Have you put this info into the Guardian, Alasdair, where Severin Carrell is jumping up and down on this issue, and I don’t think even mentions this issue, never mind the disturbing background to its sponsor. Comments allowed.

      At least the issue is getting aired, although maybe not in an ideal way.

    • Hmmm. I note that (in rural terms) Mr. “Ordinary Man” is virtually my next-door neighbour. (OK, there’s about three quarters of a mile of horse pasture between us.) I must give the village grapevine a wee shake and see what whispers it’s carrying.

  6. First time poster (hello) and I agree with Morag…shhhhh…….

  7. Derek, the past participle of gang (usually pronounced ging nowadays, but standard spelling is gang) is ‘gane’ – past tense is usually ‘gaed.’ Gang is a vestigial verb like to go in English.

  8. Derek, just a thought on EU membership. Currently Cyprus is going through unification talks between the Turkish Cypriot north and the Greek Cypriot south. My understanding is that if these talks are successful (I hope they will be), the Turkish Cypriot north would automatically become part of the EU under the umbrella of a united Cyprus island. If I am right we could have a situation this year where a country with 40 years EU membership has to renegotiate terms to re-join the EU and the former Turkish Republic of Northern Cyprus (TRNC) automatically joins having never been a member.

  9. Tribal prejudices rule.

    Democracy, reason, logic, respect – drowned in muck and mud.

    Lift high then your shield of self-defence

    for outrageous arrows will multiply

    and rain down on us constantly.

    And then, on that day, still distant, say ‘Yes’.

    For Yes alone will seal the victory.

    And a jubilant nation will arise – again.

  10. The British might lose this Union because they failed to stand up for it.

    er AND!

  11. I’m glad BT / Westminster have professors of international law for advice, since international events such the worry over energy scarcity connected with Russian Federation claims may force new scenarios upon us before Sept 18th.

    With 5m population we should be worried about the lights going out – I don’t think so somehow.

  12. Re subs, Derek.
    My pension is already loaded almost to breaking point.
    A donation I will certainly manage.
    A subscription is beyond me.
    Please say ‘Yes’.

  13. Murray McCallum

    The “Scotland was extinguished” legal publication was a massive blunder. If the Westminster government could say that about the country you were born in, or lived in, how further could they go? How are ordinary people to to react to such a thing when their newspapers or TV news items are not discussing such a revelation in microscopic detail? This makes most human beings seek out further information and, most likely, investigate information from whole new sources.

    The ‘No’ campaign campaign was fundamentally damaged from the publication of this article onward. Too late for apologies. You can’t take back and retreat from such an extreme “extinguished” opinion.

    Maybe more importantly it has damaged the reputation of the unionist political parties post a ‘Yes’ vote. On what basis would a voter in an independent Scotland place their trust in such a group of people?

    If these people were not prepared to stand up within their “family of nations” and challenge such a one-sided view of the UK, then how can they possibly be trusted to seek the best for Scotland when dealing with the rest of the world?

  14. Spain isn’t going to object to Scottish membership of the EU. Mariano Rajoy refused to answer 3 times when asked directly during an interview for El Pais newspaper whether Spain would veto Scotland. The truth is that the stance adopted by Spain on Catalonia means the Spanish government cannot veto Scotland, because to do so would merely confirm the claims of the Catalans that Spain does not recognise the right to self-determination. Spain claims it does recognise the right, but only when self-determination is legal and constitutional – as it is in Scotland. If Spain vetoes Scotland, they destroy their own legal argument that they oppose a Catalan indy referendum because it breaches the Spanish Constitution.

    • That is seriously fascinating. Now all I have to do is memorise the detail for the next time some idiot brings this up.

    • There is also the small matter of Spain’s fishing fleet, the largest in the world at 12,000 vessels, 50% of whom are trawling Scottish waters at any one time. Fishing accounts for a substantial proportion of the ailing Spain’s economy, indeed the proportion is larger than any other nation in the EU in real terms. Spain simply can’t veto Scotland’s entry, it’d be shooting itself in the foot with two barrels if it did so. It may use it’s position to negotiate aggressively, but at the end of the day Scotland has the upper hand.

  15. The proud Scots of the NO variety just want to be second class ENGLANDERS can’t you see you dumb jocks.

    The ENGLANDERS just want to feel superior to somebody and pretend they are still a world power.

    It’s the land of make believe!

    • Yes, it’s sad to see them pretend to be a world power. More like them to blush when they consider the route Britain travelled to become a world power. But we are most fortunate, for our road to independence is easy. It’s not difficult to mark the spot with a cross and vote YES.

    • The French want no-one to be their superior. The English want inferiors. The Frenchman constantly raises his eyes above him with anxiety. The Englishman lowers his beneath him with satisfaction.

  16. Another great post Derek. I too ploughed through the original document, and the infamous Annex A with the “Scotland extinguished” statement, page 75 if I remember correctly. What struck me was not the obvious uncertainty which you have pointed out, that the final decision would be a political rather than legal one, but the dressing up of these comments in legalese and formal HMG trappings, as if to bode no argument.

    It reminded me of a Glasgow University maths lecturer who told of having to sit in the front row of his maths class as a student because he was short-sighted. The Prof’s notes fell off the lectern and he picked them up and handed them back to him, noticing in the process that part of the page had comments in red ink “argument weak here, raise voice!”.

  17. I believe South Sudan didn’t exist ……………. and then it did ?!?!?

    More telling is this;

    “EU Presidency Statement – The right to self-determination” (2001)

    “……. For the European Union, respect for this right cannot be disassociated from respect for the freedom and dignity of the individual and for fundamental human rights. The obligation to promote and protect this right is therefore included in full among the commitments given by States in the field of human rights……..”

    Scotland exists it was never extinguished.

  18. It’s curious that you don’t hear too much about the Treaty Of Union. I suppose the whole thing is rather arcane and not exactly a huge vote swinger. But it’s obviously massively important, indeed it’s germane to the whole argument.

    The Yes campaign, and the SNP for that matter, have been pretty quiet about it though and have gone along with the ‘leaving the UK’ argument. But once the vote is won, surely the first thing on the agenda is dusting down the Treaty and figuring out how to repeal the Acts that brought it into law.

    And once we’re down that road, it’s going to be crystal clear that you can’t have a union of, er, one. The entity, The United Kingdom Of Great Britain, was created by the Treaty that joined Scotland and England, and without us, there’s nae Great Britain.

    I suspect the Scottish side’s lawyers already have a few choice arguments for the negotiations. Should be great fun listening to the squeals of HMG and the Daily Mail when we set out our starting point for the divorce.

    • I’ve said this before in other forums, but following a Yes vote we may need a new treaty of association to preserve us from the frightened and angry lashing out that would follow. Not a new treaty of union, but some kind of face-saver for the Brits.

      • I’d be fine with a loose confederal UK, where we can work together on common interests but go our own way where interests diverge. A bit like an EU for the UK.

  19. It should also be remembered that the primary source of reference quoted by Crawford and Boyle was:
    (Vienna Convention on Succession of States in respect of Treaties)
    (Vienna Convention on Succession of States in respect of State Property, Archives and Debts

    But only selectively though. If you read the full thing it gives an entirely diferrent impression.

  20. I have been in discussion with Lalland’s Peat Worrier who takes the view point that the British ‘Constitution’ has developed to a point which, in effect renders the Articles of Union null and void.

    He appears to disregard Lord Cooper in McCormack (1953) who stated the UK Parliamentary ‘Constitution’ is based on a series of errors first promulgated by Bagehotte and others about the nature of the UK Union in the mid 19th Century – that Scotland had been subsumed by England. Lord Cooper made clear this was most certainly not the case as clearly established by Article 19 of the Treaty which preserved the independence of Scots Law and constitutional practice for ‘all time’ which in the case of Article 19 meant exactly that. Lord Cooper’s assertion on the definition of ‘all time’ was conceded on the Westminster Parliament’s behalf by the Lord Advocate. Elizabeth is Queen of Scots courtesy of the 1689 Claim of Right (Scotland) which she swore to uphold on oath, the night before her English coronation.

    Further Lord Cooper stated in McCormack (1953) that any changes or alteration to the Treaty of Union could only be conducted in negotiations between the original, sovereign, signatory parliaments of the Treaty of Union. This too was conceded on UK Parliament at Westminster’s behalf by the Lord Advocate. In effect the UK Parliament has no place or role in any negotiations to do with its own demise as these come under the cover of ‘changes or alterations’ to the Treaty of Union and can only be agreed between the sovereign parliament of England and Wales (with NI) and the sovereign parliament of Scotland.

    This all suggests that the legal advice given the current UK Government by these ‘experts’ is flawed and in serious error, as it fails to stand on its basic premise – that Scotland was subsumed by England in 1707 which, as Lord Cooper made clear in 1953, is most certainly not the case.

    My own research indicates there are two legitimate successor states to the UK, those are the two original, sovereign states represented by the re-establishment of their own sovereign parliaments.

    In simple terms the UK Government’s advice based on this document is:

    ‘Ae wulliewacht aa ald horse pish.’

    For more detail see my blog:

    • Most of these legal thingys are way above my head but one thing got me thinking… Your point here about Changes or Alterations to the Treaty of Union can only be agreed between the sov Parliaments of Eng, Wales and NI and the Scottish parliament… Could this be why there was/is a motion going through westminster about Scotland not voting in the next GE if we vote Yes… Would that allow them to legally start negotiations ?

    • Good for you Mad Jock – you’ve been solid in your upkeep of Lord Cooper’s opinion and for very good reason. This talk of rUK and fUK is just bunkum. The UK is Scotland and England – end of – take one party away and the ‘United Kingdom’ aspect is gone. As to the so-called EU conundrum, there’s not a chance of the EU turning its back on Scotland’s continuing membership, which is equally true of England – but if there need to be concessions, they will be made more on England’s behalf without Scotland’s resources to back it up. Toothpaste and tube!

  21. As it states on the TV quiz show “Pointless” most nights, “A country is defined as being recognised by the UN.”
    We’re not, so of course we are not a country.

    Also, of course Scotland was extinguished. How deluded the Scots have been to think they’ve been in a partnership of equals, just because it said so on the tin.

    We are all English, and England was re-named Great Britain, then the UK.

    If you don’t like it, vote YES.

  22. I’ve seen the UN argument on a number of threads Neil, 8:56. My subsequent query has been, if Scotland doesn’t exist why are we having a referendum?

    If Scots vote YES will we be a people without a land, as we are, according to the advice, occupying part of a Greater England. Will we have to rent?

    I am of course being ridiculous. Not as ridiculous as Westminster’s stance though. It takes more than I have to offer to reach that level.

    Another great post Derek. Many thanks.

  23. Barbara Gribbon

    Excellent article- -interesting point from Wee Ginger Dug. Also are you being DoSed? Lots of Cannot find/Redirects today.. (oh hai, I hangout here sometimes ;))

  24. It seems an odd argument to make that one should vote no to keep taking English charity. But increasingly that is the argument for the no camp. Even from the beginning, I began to pick up on a tendency to describe Scotland as being outside of the UK. That Scotland was merely a recipient of aid and handouts. ever success it enjoyed – British. Any achievements of note – British. Any contributions – British. Culture – British. Sport – British. Art – British. Trade – British. Science – British. Nothing Scotland did or contributed was ever credited to it. The credit was given to Britain and the UK. I described this approach in a number of posts as “Darlings Magic Cloak of Britishness”. Britishness was to be seen as a soothing balm to hide how wretched it was to be Scottish. It was a means with which to hide your Scottish identity.

    Osborne’s intervention was the logical conclusion of that argument. In a single speech, he undid 300 years of union and reduced it to bizarre state of affairs. A curious union, were England would get to run Scotland, and in return the English would give the Scots money. There wasn’t really a union.England got to take over Scotland without a fight. England would call itself Britain so as to avoid upsetting the Scots, who would not be best pleased that they had in fact been turned into Northern English folk overnight. If this interpretation of events is true, then Scotland has been the victim of a monstrous crime. Tricked into thinking itself a nation while the English thought we were happy to English as long as we called it British. As a reward, this feckless, lazy liability that was Scotland, would be allowed to continue as it had before, living off English cash.

    Why in the name of sanity, would anyone fight a campaign based on such a wretched lie. Where was the anger? Where was the displays of “Proud Scottishness” as the pro union camp descended upon Osborne and tore his argument to pieces? Where was the defence of Union? Instead we were treated to the display of unionists, wallowing in Osborne’s loose stool water. Make no mistake. This man crapped on Scotland. Then with utter contempt, wiped his arse with the union jack.

    With one speech – this son of a self made man – undid 300 years of union. He tossed away any arguments that could have been made in its defence. Instead, he has now made it impossible for any Scot, to hold their heads high in the event of a no vote. Scotland won’t be thanked for voting no. It will be mocked for voting no. It will be seen has having voted no to keep taking English money. Both Labour and the Tories now believe that if they win, they can take more of out contributions to the UK for themselves and then tax us more than any other citizen in the UK. Not since Thatchers fateful decision to try and use the Poll Tax, as a way of damping down Scottish anger at her parties betrayal of delivering devolution, have we seen such a display of belligerent imbecility.

    The have actually made it impossible for the Union to survive a no vote.

    Sep. 18th will see the union end with dignity or be dragged down kicking and screaming. I am hoping we can put it out of its misery. Frankly its sickening to see what its “supporters” have done with it.

  25. “Sep. 18th will see the union end with dignity or be dragged down kicking and screaming.”

    I think this will apply whatever the result.

  26. Could it be that the “legal “advice sought and delivered as Westminster wanted ,was a means of justifing in the event of a no vote ,the abolition of the Scottish parliaments right to call a referendum .

  27. I’ve been preaching that sermon since I was a wee schoolboy in 1946. Let us just apply a little common logic to this matter, Shall we? In the first place there are existing historic Documents to prove the truth. The Kingdom of England annexed the Princedom of Wales in 1284 – The Statute of Rhuddlan, (1284. Then the Kingdom of England annexed the Kingdom of Ireland in 1542, (Crown of Ireland Act). There was NO union of the Crowns in 1603 as both the three country Kingdom of England and the Kingdom & Country of Scotland remained independent realms and each retained an independent parliament. Then in 1688 the Parliament of England deposed their direct Steward monarch and replaced him with the joint monarchy of William, (of Orange), and Mary. Being still an independent realm this did NOT depose the Scottish monarchy and thus sparked off The Jacobite Uprisings, (1688 – 1745). Wrongly claimed in England as, “The Jacobite Rebellion”, but you cannot rebel against a monarch who is not your own. This was the real reason for the need of a, “Treaty Of Union”, in 1706/7. The Title of that Treaty gives the game away as it correctly describes the resultant Union as, “The United Kingdom”. It is only Westminster that now has separated that bipartite union of kingdoms as four countries but by retaining Westminster as the de facto parliament of the Country of England it has made the reality that we have The Parliament of England devolving English powers to the three subservient countries parliaments. There cannot remain a United Kingdom when one of the only two member Kingdoms leaves the United Kingdom – The Status Quo Ante is a return to two independent parliaments. Furthermore, the United Kingdom has never actually been a country it was and is, “A United K-I-N-G-D-O-M”, that contains four countries. It is, if anything a state or political union. Why would the EU, UN, NATO or Council of Europe, all defecated to uniting member states in common cause, choose to reject either now independent KINGDOM and accept the other when to do so would destroy their credibility in the eyes of the entire World? All they need do is to accept both under the proviso they BOTH renegotiate their terms. Thus adding to their total membership and retaining the assets and support of both.

  28. Dr JM Mackintosh

    I came across this rubbish from Carmichael a few days ago.

    This, and your excellent article above, got me thinking about the whole EU issue.

    Firstly, as you have stated it is not obvious that Scotland should not automatically be a continuator state like England after a positive independence vote and several legal experts have also commented on this.

    I would regard Scotland and England being equal partners as the United Kingdom was created by the act of a Scottish King inheriting the English realm and the treaty of Union also states that the two independent countries were formed into the UK.

    The other odd thing is that Scotland wants to stay in the EU and the majority of Scots in polls support the EU. Despite this, the No campaign wants to remove our rights as EU citizens and have us thrown out of the EU for no good reason.

    On the other hand, the polls in England suggest the opposite, with a high likelihood that UKIP and the right wing of the Conservative Party will vote in a majority against EU membership in the forth coming euro elections in May.

    If the Euro elections do indeed show these separate voting intentions then surely it is much more logical to argue that Scotland should remain as the continuator state in the EU and England and rUK could be the successor state as it is likely to leave once they have their in-out referendum.

    As Carmichael states his view that rUK will not negotiate for Scotland prior to Independence Day ( I do not think anyone would want them to – do we think that they would have our best interests at heart? ), then Scotland negotiating as a continuator state during this period would also be the best solution.

  29. Yeah, they’re in for a bit of bother in the event of a YES vote. Constitutionally the stronger argument rests with the SG. That is the dissolution of a treaty of political union, this resulting in the two signatories reverting to their original status. Now considering the well publicised stand of Westminster to date, just how do they square that circle with the electorate in the event of a YES win?

    Sorry folks, we got it wrong? Bit of a misunderstanding? By the by we actually do have to share out the assets, my bad?

    Its a pickle for them, so I’m guessing an all or nothing bet on spoiling the vote through sheer negative media coverage… oh wait. 🙂

    Don’t know if this has happened to anyone else Derek, but I’m having problems seeing the site on my usual Safari browser. The page generally appears as symbols for the text areas. Dumping cache and cookies has no effect. Finally just gave up the ghost and loaded Firefox, hey presto you appeared again.

  30. The funny thing about ending the union is that the majority of the articles of union will either remain (e.g. those pertaining to trade) or are irrelevant (e.g. those pertaining to empire).

  31. For interest

    I published an article on this UK Government paper in the Journal of the Law Society of Scotland. Here:

    and gave evidence to the Scottish Parliament on the same subject – transcript here:

  32. I think what is so telling is the tone. This isn’t persuasive, or concerned, it’s hectoring and dictatorial. Imagine a unionist saying, “look, I think you’re playing with fire here, don’t you realise there’s a possibility we might find ourselves outside the EU with a Yes vote? That really worries me.” Then one might have a discussion about whether that was a real fear or not, and how important it was.

    But it’s never phrased like that. Phraseology like that would put both sides on the same side, both Scots looking for the best way forward. People who could have a debate because both were really looking for the same thing. People who were discussing as equals.

    Instead, the unions take the high-handed line. They’re not like us, Scots with a vision of how they would like to see the country progress. They’re the masters and we’re the oiks who are getting uppity. They’re not voicing genuine, heart-felt concerns. They’re throwing threats at us for having the temerity to challenge their supremacy.

    I don’t think people like that sort of language, and I think it has a lot to do with why they’re losing. They could have won this, but the way they’re handling it, they’re throwing it away. We haven’t had many breaks in the past 300 years, but we’re getting some now!

    • According to them Scotland was extinguished therefore those of us who live up here in the Far Far North (as opposed to the Manchester north) have no right to question or raise objections as we’re just insignificant midges to be brushed off and squashed underfoot. So a sensible dialogue was to them a waste of time and effort. But we’ll see come September 18th.

      • @Morag – I heard it expressed very well the other night at a YES public meeting. “The NO campaign has moved from the Project Fear phase to the Project Threat phase.”

        Threats are what you use when you have no consideration for the other party. At least we know now how those of us who live in Scotland are regarded by the “elite”.

        Keep on spreading the positive message of YES.

    • Morag, I agree. There was a positive case for the Union, of sorts, but they’ve thrown it away. I notice that the initial naivety of many Yes supporters has hardened into a kind of angry determination to terminate this relationship. No more illusions that we’re up against essentially nice guys and civilized people.

  33. All in all, I don’t understand the scares and obstacles offered by the Unionists. It’s very simple – if we want to do it, we’ll do it. The Spanish poet Machado says:

    No hay camino, se hace camino al andar.

    There is no way – the way is made by going.

  34. Derek

    I am legally trained and i read the opinion when it first came out. I may have even mentioned it to you in our exchange on the EU when i first posted on your blog but I’m not going to trawl back through your blogs to check.

    I agree completely with the opinion of the Professors. I should add that Professor Adam Tomkins from Glasgow also agrees with what they say, as will most constitutional law experts. But hey, why let a few facts get in the way of a good blog entry.

    Your comment advising the UK to reject the advice is telling, it is clear that as far as you are concerned people should not be told the truth if they don’t like it. But whatever, have it your way, ignore some of the most eminent legal brains in the country, tell yourself that they are wrong, vote yes to spite their opinions and then discover that they were right all along… and don’t worry i’ll still be here to say i told you so.

    • If only the world were so simple. Executing the law upon individual citizens is relatively straightforward. Forcing countries to comply with laws is quite another matter because politics inevitably interferes with due process. Thus treaties are regularly ignored or torn up when the rules are not in a countries best interest.

      Legal opinion might well be right about Scotland’s status. But really who cares because it doesn’t matter. What matters is what the people of Scotland determine to be in their best interests, regardless of what law some expert says should be complied with.

      • Dr JM Mackintosh

        GH Graham,

        yes I pretty much agree with you and Derek. There are no precedents for our case.

        It would be nice to have a ‘velvet divorce’ in a similar manner to the Czechs and Slovaks. It is quite amazing what can be done if there is a will. Two independent countries were set up within six months of the vote.

        It was quite amazing how quickly the East Germans became EU citizens – overnight I believe.

        Also it appears quite difficult to leave the EU, I think it took Greenland around over two years to exit when they voted to leave the EU. The Scots don’t want to leave but are going to thrown out immediately – just nonsense.

        The more I see of this it is apparent that Westminster and the UK establishment is the real problem as they are just putting up barriers on every issue they can think off.

        Hopefully that will change with a Yes vote but it may not and the divorce may get very messy. If it does it is not the fault of the Scottish Government and the Yes campaign both have been very reasonable in their approach.

        It does not have to be this way as we both have to live in these islands with or without Independence. We and the independence issue are not going to go away. The Norway/Sweden and Czech/Slovak examples show what can be done as with both situations the countries have maintained good relationships.

        One thing I am sure off is that an independent Scotland will have lots of friends and goodwill in Europe after a Yes vote. Well a lot more than the UK has at present – but that would not be too difficult!

        • Dr

          Go read the legal opinion. It makes perfect sense, a lot of the paper stems from the principle of legal personality. Once you understand that concept the rest falls into place.

          … and there are precedents, Ireland seceding from the UK in 1922 and the break up of the soviet union among others… where there are no precedents the EU/EC has already clarified iScotland position in relation the the EU. We will have to reapply through article 49 of the European Treaty, every official of the EC who has been consulted since 2004 has said the same thing so there can be no doubt about what will happen.

          You mention the Czechs and Slovaks, interesting choice as it shows what will happen if the UK politicians commit political suicide and about turn on the sterling currency zone. The Czech/Slovak currency union lasted 5 days.

          As for East Germany that was a totally different situation compared to iScotland, firstly it had been anticipated in the treaties so preparations had been made years before, secondly that situation involved the expansion of an EU member state, the expansion of the EU and the integration of a former eastern bloc country. Our situation involves the fragmentation of an EU member state, which is something the EU does not want to encourage because of the situations in Spain, Belgium and Italy to name but a few EU member states dealing with secessionist movements.

          Oh and by the way the UK has plenty of friends, either first or second in the soft power indices in the last 2 years and a passport that allows you enter more countries without a visa than any other passport.

    • John – the “law” as you call it is irrelevant at the level of the state – we saw this with the invasion of Iraq and the blatant murder of it’s citizens.. has anyone stood trial for this? Will they? Of course not. You talk of hiding the truth – what truth? None of this has any bearing on what will happen after a YES vote which will be grounded not in papers written by long dead men or agreements of the past but in 100% real politik and pragmatic negotiation. We will BE in the EU because it benefits everyone for us to be and benefits NO-ONE for us not to be.. We will be in NATO for the same reason – there will be no border controls, again for the same reason and we will be using the pound again for EXACTLY the same reason.

  35. Hi guys,We’re an independent trader. We’ve got oil,gas,water, coal, Scotch whisky,fish for sale. Stuff you either have or haven’t, cannot be manufactured. And agricultural products. Oh and technology, manufacturing expertise, and five universities in the world’s top 200 ranking. And if you have money to invest we can handle that, been doing the investment stuff for years, great track record of customer satisfaction.

    Do we do speculative war adventures? Arms sales, no questions asked? Eh no, negative customer feedback likely.

    We’re independent, happy to be involved in joint ventures but don’t fence us in.We did have a partnership of sorts but the other side always wanted more than their share, then when we called enough they tried all kinds of lawyer talk to keep the deal going.

    We’re open for business, anyone fancy a deal?

  36. Dr JM Mackintosh

    I did not realise that the Kingdom of Ireland was part of the 1707 Treaty of Union. How is that a precedence to the break up of the United Kingdom of Great Britain?

    I do not believe any elected representative of Spain, Italy or Belgium has stated they will actively oppose an Independent Scotland’s entry to the EU.

    Why have the UK government not asked for a definitive legal position on this issue from the EU?

    With a Yes vote in September then these issues can be resolved.
    I would encourage you to vote Yes.

    • Read the legal opinion. It explains it far better that I can here.

      These countries will make their decisions when the time comes, like all EU member states they have a veto they can use for any reason they want.

      As I see it the EU have given their answer many times. Christine mckelvie wrote the EU recently raising the accession issue and was told the same thing as everyone else. Strange how the snp,didn’t make as big a deal of publicising that letter as they did the “googlegait” letter that salmond waved about in the chamber.

      You can vote yes if you want, I’m voting no. I don’t fancy playing Russian roulette with my future.

      • Seems to me, that by placing your faith in a system as dysfunctional as the UK, you are taking a massive gamble with your future. It is increasingly obvious that yes or no, the union loses. The one thing that won’t survive a no vote, is the status quo.

  37. Hi Derek, sorry to be O/T but I’d love to donate a wee bit cash to your blog. Is there any chance you could make individual amounts an option. (Instead of just monthly payments)

  38. I was fortunate enough to be in my final year studying Scottish History at Glasgow Uni when Ted Cowan took over from Archie Duncan. My final class tutor was Dauvit Broon and these guys are, and were, first class. Your article and, yet again, wise use of simple, straightforward logic just serves to highlight the utterly nonsensical position that Bitter Together espouse. Let them be reminded of this at every turn, but also, as it seems to be their want, let them get on with it too – our logical, positive and sensible approach will win the day as long as we get the truth out to enough of our fellow Scots.

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