On 11 February this year the UK government took the highly unusual step of publishing the legal advice that they had commissioned from Professors James Crawford of Cambridge and Alan Boyle of Edinburgh. According to Lord Wallace, the UK government’s chief legal representative in Scotland, ‘The legal advice is clear. In the event of independence, the remainder of the UK would continue as before, and Scotland would form a new, separate state.’ Is this true?

The legal advice is, certainly, a finely crafted paper, and makes clear the assumptions on which it is based. If these change, however, then the advice is sufficiently flexible for its conclusions to change, too. This could lead to a situation which, if the legal advice is followed, would play into the hands of the Scottish government. None of this would arise if the UK government had followed the convention of treating legal advice as confidential.

The advice that supports the UK government’s position is based on a view of the UK’s legal identity that will surprise its citizens in England as well as Scotland. On paper it is clear that a new state was created in 1707: the First Article of the ‘Treaty’ of Union states that ‘the two kingdoms of England and Scotland shall ... be united into one kingdom by the name of Great Britain’. However, Professors Crawford and Boyle explain that the question of whether a new state was created in 1707 still needs to be asked. Either ‘the union created a new state, Great Britain, into which the international identities of Scotland and England merged and which was distinct from both ...’ or ‘as a matter of international law England ... was simply enlarged to incorporate Scotland’.

The latter is deeply shocking from a Scottish point of view. The alternative—that England and Scotland ceased to exist in 1707—is as bad for England as it is for Scotland. Even worse, it is inconsistent with the head of state’s designation as ‘Elizabeth II’: she is, of course, the second queen Elizabeth only for England. Now, it is important to stress that international law is, in effect, a world of its own. By publishing this advice, however, the UK government has brought it into the domain of politics. Indeed, Michael Moore at the time encouraged us all to ask questions. The obvious one is whether the UK government thinks it is acceptable that, in the eyes of international law, the country they govern is either England writ large, or an entity which has erased both England and Scotland.

This is not an idle question. Professors Crawford and Boyle make it clear that it is in the power of the UK government to alter this and bring international law into line with England and Scotland’s continued existence. The crucial part of their opinion is their discussion of the dissolution of Czechoslovakia a decade ago. What was notable about this, according to Crawford and Boyle, is that it ‘was effected by the consent of both new states; neither claimed to continue [Czechoslovakia’s] identity.’ The Czech Republic could have been recognised as the continuing state in international law, but chose not to. Crawford and Boyle concluded that ‘this serves to reinforce the importance of negotiations in predetermining the consequences of independence.’

This is the crunch. International law is not set in stone. It is clear from the legal advice published by the UK government that it is in their power to do what Czechoslovakia did and define the nature of their country, now and in the future, in the eyes of international law. By promoting the legal opinion in a public forum, the UK government has accepted either that England as well as Scotland does not exist, or that the UK is simply England by another name. But they can change this. The trouble is that, if they do, they will have to recognise that both Scotland and the rest of the UK would both become new states in the event of Scottish independence.

First published: 7 November 2013

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