The opinion that independent Scotland will start life outside international treaties might not be as clear cut as some believe
‘Should Scotland be an independent country?’ It is either the shortest suicide note in history or the road to national freedom depending on your point of view. For this is the question approved by the Electoral Commission in the independence referendum.
The unionists in the Better Together campaign are not entirely happy with it. They argue, with some justification, that there is no mention of Scotland actually leaving the United Kingdom. Therefore, some voters might be misled into thinking that Scotland will still be part of the UK after independence, as the Scottish National Party has suggested. It all depends on what you think the United Kingdom actually is.
Some legal experts argue that Scotland ceased to exist in 1707 after the Acts of Union were passed creating a state called Great Britain. If Scotland were to vote for independence it would become a new state and not be part of any ‘continuing’ UK. Others argue that the Union was an agreement reached by two independent countries, Scotland and England, both of which continued to exist for the next 300 years, albeit with only one Parliament.
This might seem like an arcane issue for constitutional anoraks, but it could have consequences. Nationalists say that if the continuing UK were to inherit all the entitlements of the ‘old UK’ it would need to accept all the liabilities as well. This would include the £1.4 trillion UK national debt, of which Scotland’s share is about £140bn. When Ireland seceded from the UK in the 1920s, it did not take on any of the debt because the UK continued. Scotland would be the same.
The constitutional expert who drew up the legal opinion for the UK coalition, Professor James Crawford of Cambridge University, also argued that the continuing UK and not Scotland would inherit all the treaties intact. This would mean ‘new’ Scotland renegotiating entry into the European Union and other international bodies.
A UK government spokesperson said triumphantly that Crawford’s paper ‘tore to shreds Alex Salmond’s fantasy that Scotland would be waved through into every international institution on a “no questions asked” basis.’
However, in an embarrassing twist, Crawford told BBC Radio 4’s Today programme – on the day his legal opinion was published – that the SNP’s 18-month timetable for renegotiating all these treaties was ‘realistic’.
All of this confirms that trying to resolve these political matters by bringing in lawyers is, as in divorce, the road to madness. Under the Edinburgh Agreement of October 2012, the Scottish Government and the UK coalition have agreed to work constructively whatever the outcome of the referendum – and that suggests Scotland would not secede.
Similarly, the idea that the European Union would, in a fit of pique, eject Scotland is far fetched. It is said that the president of the European Commission, José Manuel Barroso, is under pressure from Madrid to discourage regions such as Catalonia from seceding. But the situation in Spain is very different to that in Scotland, where both sides have agreed a legally binding referendum.
Anyway, the last thing Brussels wants is a raft of small independent states in Europe leaving – especially countries like Scotland, which has some of the biggest energy resources in the EU.
Again, Crawford said that Scotland already fulfilled all the requirements for remaining in the EU and that renegotiation would largely be a formality. Which rather took us back to square one. Heaven knows what the voters made of it all, but it looks like lawyers are going to make a fortune.
