On 11 February this year the government of the United Kingdom took the highly unusual step of publishing the legal advice that they had commissioned on whether, in the event of Scottish independence, Scotland would be regarded in international law as a new state and the remainder of the UK as a continuation of the United Kingdom of Great Britain and Northern Ireland. This is, needless to say, the preferred outcome of the UK government itself. The Scottish government, on the other hand, takes the view that the United Kingdom, created fundamentally by the ‘Treaty’ of Union in 1707, would cease to exist on Scottish independence, leading to the creation of two new states. In contrast to the UK government, the Scottish government has not released the legal advice it has received on this question, insisting that this would breach long established protocols. The decision by the UK government to publish their legal advice is certainly irregular, and has had the effect of making the Scottish government appear evasive on this issue. This is exacerbated by the UK government’s confidence that the legal opinion they commissioned comes down clearly in their favour.  According to the UK government’s chief legal representative in Scotland, the Advocate General, Lord Wallace: [1]

‘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.’

 It should come as no surprise, however, that legal advice is never so clear cut. Its authors—James Crawford, Professor of International Law at the University of Cambridge, and Alan Boyle, Professor of Public International Law at the University of Edinburgh—certainly present the best case they can on behalf of their clients. But their opinion is a finely crafted piece of legal architecture which shows clearly the weight-bearing assumptions on which it is based. If these assumptions change, then Professors Crawford and Boyle’s advice is sufficiently flexible for its conclusions to change, too. In this paper I will explore how their assessment of the UK’s identity in international law could lead to a situation which, according to Professors Crawford and Boyle, would play into the hands of the Scottish government, undermining the UK government’s position about Scotland and the rest of the UK’s status in international law.

First of all, did Professors Crawford and Boyle give unambiguous advice in favour of the UK government’s position? It is not only the UK government that thinks so.  The website of the Law Faculty of the University of Cambridge on its ‘news’ page, announcing the publication of Professor Crawford’s opinion, declared that the opinion ‘rejects the alternative possibility that Scotland and the remainder of the UK will both be considered a new state’.[2] I would not be surprised, however, if Professor Crawford himself found this a shade embarrassing.  Far from declaring that the remainder of the UK would continue as before, and Scotland would form a new, separate state, it is explained in the first page of the Executive Summary of Crawford and Boyle’s legal advice that in international law there are three possible outcomes for the status of Scotland and the rest of the UK in the event of Scottish independence. The outcome preferred by the UK government is regarded as ‘most likely’, whereas the one favoured by the Scottish government would, we are told, only be likely if the UK were to agree to it. (The third possible outcome is Scotland’s return to its pre-1707 status in international law, which is deemed to be highly problematic.) As far as international law is concerned—as distinct from politics—therefore, it would appear that the Scottish government’s position is not ruled out. Of course, it may be objected that this is purely hypothetical, and that, in reality, the UK government is never going to agree that Scotland and the rest of the UK are new states and thus abandon their claim to be the legal continuation of the United Kingdom of Great Britain and Northern Ireland. The legal advice in support of the UK government’s position, however, is based on a view of the UK’s legal identity that is potentially unsustainable.

The First Article of what is conveniently (if inaccurately) referred to as the ‘Treaty’ of Union between Scotland and England on 1 May 1707 declares that a new state was created: ‘the two kingdoms of England and Scotland shall upon the first day of May in the year 1707, and for ever after, be united into one kingdom by the name of Great Britain’. It may be thought that this is cut and dried. However, Professors Crawford and Boyle explain that the question of whether a new state was created in 1707 still needs to be asked.  The core sections of their advice are as follows:

‘33. There are two possible answers to this question [of whether a new state was created in 1707]. It is a question not of the position of Scotland within domestic law—under which Scotland clearly retained a distinct constitutional status, in particular a separate legal system—but of how the union should be treated as a matter of international law.

34. One view is that the union created a new state, Great Britain, into which the international identities of Scotland and England merged and which was distinct from both...

35. An alternative view is that as a matter of international law England continued, albeit under a new name and regardless of the position in domestic law, and was simply enlarged to incorporate Scotland.

37. For the purpose of this advice, it is not necessary to decide between these two views of the union of 1707. Whether or not England was also extinguished by the union, Scotland certainly was extinguished as a matter of international law, by merger either into an enlarged and renamed England or into an entirely new state.’

The proposition that the United Kingdom is simply an enlarged England is deeply shocking from a Scottish point of view. The alternative—that England and Scotland ceased to exist in 1707—should come as no surprise in light of the first article of the ‘Treaty’ of Union, but is deeply problematic. England continues in the identity of the crown itself: the reigning sovereign is Elizabeth ‘II’ despite the fact that she is the first Queen Elizabeth since 1707. Now, it is important to repeat Professors Crawford and Boyle’s emphasis that international law is quite separate from domestic law. By publishing this advice, however, the UK government has brought it into the domain of politics.  Indeed, Michael Moore, the UK government’s minister for Scotland, when the legal advice was published, urged that[3]

‘This is a debate that cannot be left to lawyers and experts alone, everyone must participate in it. ... I want you to ask us questions. And I want you to encourage others in your organisations to do the same.’

The obvious question to ask 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 United Kingdom government to alter this and bring international law into line with England and Scotland’s continued existence. The crucial part of their legal opinion in this respect is their discussion of the dissolution of Czechoslovakia at midnight on 31 December 1992. As a result, two new states came into being: the Czech Republic and the Slovak Republic without either claiming to be the continuation of Czechoslovakia itself. Crawford and Boyle, referring to a paper by Professor Jiří Malenovský of the Masaryk University, Prague (who is also a judge of the European Court of Justice), argue that it would have been perfectly feasible in international law for the Czech Republic to claim that it was the continuing state, and that Slovakia was a new state—that is, to take the same position in relation to Slovakia as the UK government has said it would take in relation to an independent Scotland. What was notable about Czechoslovakia, therefore, according to Crawford and Boyle (§76), is that its dissolution ‘was effected by the consent of both new states; neither claimed to continue [Czechoslovakia’s] identity. Nor does any other state appear to have doubted its extinction.’  They conclude:

‘78. So Czechoslovakia should not be taken as detracting from the general presumption in favour of state continuity despite changes in territory. The outcome of its dissolution depended on agreement. This serves to reinforce the importance of negotiations in predetermining the consequences of independence.’

The last sentence bears repeating: ‘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.

Dauvit Broun is Professor of Scottish History at the University of Glasgow