Michael Fry: Spinning the independence debate

The British government has begun its defence of the Union but its own case for dismissing independence many not be as robust as it thinks, writes Michael Fry

By MICHAEL FRY Wednesday, 13th February 2013, 12:00 am

The last time I wrote about the tone of the debate on Scottish independence, I came to the conclusion that there was little to choose between the two sides in the quality of the arguments and the calm or intelligence with which they were presented.

Since then, there has been something of an improvement on the nationalist side, perhaps through entrusting the presentation to Nicola Sturgeon rather than to other politicians I could name. But there has been an appalling deterioration on the unionist side, above all in the context this week of the first of the British government’s series of papers meant to give us “expert-based analysis to explain Scotland’s place within the UK and how it might change with separation”.

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The two experts who stuck their heads above the parapet were Professor James Crawford of Cambridge University and Professor Alan Boyle of Edinburgh University. Crawford is certainly an expert on new states – I think we can, for once, accurately say that he is the world’s greatest expert. Boyle is professor of public international law – but specialising in environmental rather than constitutional matters, a fact I saw nowhere noted in the publicity. This gives him a good deal of experience of treaties – however, of how reluctant states are to enter into them and how eager they are to get out of them.

The two boffins did their job, coming to a definite conclusion (happily, the one the British government wanted), while hedging it round with all sorts of qualifications covering every conceivable outcome of the forthcoming constitutional controversies. Well, that’s what we pay lawyers for. But you would hardly have guessed as much from the publicity, presumably orchestrated in Whitehall, that accompanied their well-chosen words and weighty opinions.

In fact, they need not have bothered to choose their words or weigh their opinions because the spin-doctors had already decided what to go on. This was the claim that an independent Scotland would need to renegotiate thousands of treaties in talks bound to take years and years – meanwhile, leaving the Scots as international pariahs without so much as North Korea’s nuclear weapons to defend our oil-rigs against al-Qaeda. Or, rather, we would have nuclear weapons, at Faslane, but nuclear weapons not belonging to us because we would still be negotiating their removal with Westminster. The spin-doctors only forgot to mention that these might tempt Kim Jong-un to go for a pre-emptive strike, so bringing the history of independent Scotland to an early close.

This all made for the sort of copy the spin-doctors wanted, the only problem being that it bore little resemblance to the truth. Prof Crawford went that morning on the Radio 4 Today programme, where he was quizzed by a suitably sceptical John Humphrys.

And Crawford then said some interesting things to supplement his report. Asked if all existing treaties involving Scotland would “just die”, he answered that while “in principle that’s right”, in practice they “might be continued by agreement”. So, it does not follow that an all-round renegotiation is unavoidable. Presumably, the Scottish Government would need only to inform any foreign government that it wished to carry on with the existing arrangements between them and, if that government was happy, things could carry on as before. As for the United Nations, Crawford went on: “Scotland would be admitted, but it’s not automatic.” All the same, “that it not going to be a big issue”. And similarly for all the other treaties, should they not continue automatically: “That is not a major issue.”

Of course, the question of Europe is more complex. The report found that the “overwhelming weight” of legal precedent suggested that Scotland would become a new state, therefore, needing to negotiate fresh terms with the European Union, rather than inheriting the old British terms. Even so, in his interview Crawford noted that the Scottish Government believed this could all be done in the 18 months between the referendum in 2014 and an independence day in 2016. “That seems realistic”, the professor affirmed.

So, Crawford was in fact far more even-handed than the spin-doctors let him appear and, in certain respects, appeared almost to be endorsing the positions of the Scottish Government rather than those of the British government, while in other respects certainly doing the opposite. But that is just what you would expect of a legal opinion. There can be few cases in which the weight of evidence lies wholly on one side. And, anyway, the thing to remember about an opinion is that it is just an opinion, not a law. If the government of Scotland wanted to find a couple of big-shot professors to contradict the views of Crawford and Boyle, there would be plenty ready to take the fee.

The basic fact about the position of a future independent Scotland in Europe is that there simply is no law covering the case because the secession of one part of an existing member country has never happened. There are some precedents that could be taken for guidance, but none that actually fits this particular set of facts, should they come to pass. In these circumstances, it is far more likely that the eventual decisions will be political rather than legal. If we have a motley collection of legal precedents that appears to force all parties into a situation that none of them wants – for example, with Scotland being expelled from the EU for a number of years before being readmitted on terms worse than before – then the European governments are far more likely to ignore those legal precedents and impose their own political solution. Should the Council of Ministers approve a treaty making Scotland a full member country from, say, 1 July, 2016, then that will be that.