A singular status
The UK Government's analysis paper on the status of Scotland following independence raises more questions than it answers – and the Government should provide more by way of answers
Earlier this year, the UK Government issued a paper entitled "Scotland analysis: Devolution and the implications of Scottish independence" (downloadable from www.official-documents.gov.uk). The paper was the first in its "Scotland Analysis" series which, according to the Scotland Office website, "will set out the facts about a range of constitutional, economic and policy issues that are critical to considering Scotland's future".
The Government's contention, based on the legal opinion annexed to the paper, is that in the event of a Yes vote, Scotland will be a new state, inheriting none of the treaty privileges and obligations of the current UK, and that, accordingly, Scotland will have to apply for membership of the EU and other treaty-based organisations, while the rump of the UK ("rUK") will continue to enjoy all such privileges automatically.
The paper also asserts that the UK Government cannot "pre-negotiate" the terms of independence with the Scottish Government.
There are a number of problems with the paper. In the first place, as any lawyer knows, in the context of an argument about competing legal principles (particularly concerning public international law), opinions are plentiful; "facts" are more difficult to come by. To the extent that the paper presents legal opinion as "fact", it is therefore misleading.
Regarding the refusal to "pre-negotiate", no one expects a binding agreement, given that neither Government has a mandate to do that at the moment. There is, however, nothing to prevent the UK Government from setting out its position on the constitution (and other matters) in the event of a Yes vote, so that Scottish voters can make an informed choice.
The Electoral Commission, in its published advice on the proposed referendum question, has called on both Governments to set out a joint explanation to voters on the consequences of a Yes and a No vote.
Proceeding by agreement
There are two main sections to the paper: a legal opinion by Professors James Crawford of Cambridge University and Alan Boyle of Edinburgh University, forming the appendix, and an analysis by the UK Government. The latter is a political document, putting a gloss on the legal opinion. It is logical to look at the legal opinion first.
At 108 pages, the opinion is quite detailed and wide ranging, but not as wide in scope as the analysis paper suggests. It focuses on how international law would treat the two new state entities following Scottish independence. The analysis goes further and purports to set out the implications of independence for Scotland in a factual way.
The conclusions of the opinion are set out in the executive summary. Paragraph 1 is worth quoting: "If Scotland were to become independent after the referendum…, it would be with the UK's agreement rather than by unilateral secession. In practice, its status in international law and that of the remainder of the UK (rUK) would depend on what arrangements the two governments made between themselves before and after the referendum, and on whether other states accepted their positions on such matters as continuity and succession. But there are a number of legal considerations."
There are four distinct propositions here. The first (agreement rather than secession) entails that Scottish independence comes about by a mechanism provided for within the UK constitution (albeit one that unpicks elements of that constitution). That is a very important point, particularly in the context of Scotland's membership of the EU.
Secondly, in practice, Scotland's status, and that of rUK, in international law will depend on what arrangements the two Governments make between themselves "before the referendum and after". This aspect of para 1 does not receive much attention in the opinion, and is more or less ignored in the analysis document.
Thirdly, even if Scotland and rUK did agree on status, there would still be a question whether other states accept the position agreed - an obvious function of the loose nature of international law and the sovereignty of states.
Finally, having accepted the practical position that negotiation and agreement are the most important mechanisms for determining status, the professors observe that a number of legal considerations, i.e. international law on state continuity and succession, may have a part to play.
Taken as a whole, this is the one of the most sensible summaries of the reality of a Yes vote for Scotland's constitutional position that we have seen to date.
It is clear that there is no exact precedent for Scottish independence, and that Scotland's relationship with the EU and the world will depend on a series of negotiations with rUK, other states and supra-national organisations.
However, the professors then proceed to consider the possible outcomes in international law, concluding that the most likely is that Scotland will be regarded as a new state, with rUK seen as the continuing state for all purposes, including EU membership. There are a number of issues with this conclusion.
Status within the Union
The first is that, having correctly observed that the actual outcome will depend on negotiation agreement, the advice then analyses the position as one where Scotland and rUK are contesting the right to continuator status. No proper account is taken of Scotland's position within the Union. In fairness, the professors were not asked to consider the "rights" of Scotland and rUK inter se following a Yes vote, but given that the analysis paper purports to set out the "implications of Scottish independence" in a "factual" way, they should have been.
This lack of discussion gives the impression, and has allowed the UK Government to claim, that it is clear (factual even) that rUK will be the continuator state, and Scotland will have to apply as a new state to various international bodies including, most importantly, the EU.
Now, there is little doubt that viewed from the outside, the UK is a unitary state. While Scotland has a separate status in some international organisations (sport, for example) and is a separate jurisdiction for certain legal purposes, Scotland has no independent legal personality, and cannot enter into treaties on its own behalf.
But to leave matters there is to ignore the relationship between Scotland and rUK for internal purposes. Within the UK, Scotland does have a legal personality of sorts, and a clear constitutional status. The Acts of Union have some continuing force. This is impliedly acknowledged in the opinion (para 38, for example).
Having conceded that Scotland's international status post-independence would depend in large part on negotiations between Scotland and rUK, the professors, or in any event the analysis authors, should have focused more on the present relationship between Scotland and rUK, and the principles that would apply to such negotiations, before presenting the "facts" on the implications of Scottish independence.
Whatever the position in international law, negotiations, before or after the referendum, would be influenced greatly by the history and development of the Union.
Absent agreement to the contrary, there is little doubt that most states would view rUK as the continuator state and Scotland as a new state, but is the UK Government's position really that Scotland has no entitlement to any of the accrued international benefits of the Union? Scotland is no rebel breakaway enclave that has never enjoyed nation status. What is proposed is the democratic, negotiated dissolution of what is, in the grand sweep of history, a comparatively short-lived Union.
Is it at all credible for Westminster to say that, in the event of a Yes vote, rUK will inherit the UK's treaty benefits, including in particular EU membership, and Scotland will not? Is there a difference in principle between the division of that asset, and the division of, say, Foreign Office property abroad, or the national debt? Should it be acceptable to Scots, however they vote, that the UK Government should hold such a view of Scotland's position within the UK?
European Union: bound in?
The paper gives insufficient consideration to Scotland's position in relation to the EU - the main practical issue in this context. Having to reapply to most international organisations as a new member would not be particularly traumatic, and in some cases (the UN, for example) entry is more or less automatic. That cannot be said of the EU. Failure to secure EU membership would have huge implications.
While the professors acknowledge that the EU is a "new legal order of international law" (cf Van Gend en Loos  CMLR 105), their suggestion that "whether a state is a member
of the EU has hitherto been treated as a matter of international law" is weak, citing as authority a statement by Mr Barroso on behalf of the Commission.
A better analysis of the politico-legal reality comes from Sir David Edward QC in his blog "Scotland and the European Union": in the event of a Yes vote, it will not be necessary for Scotland to accede to the EU as a new state; it will be a question of negotiating an amendment to the treaties to provide for the basis of continuing membership for both Scotland and rUK.
Given the culture, history and politics of the EU, and the rights that EU citizens from other member states enjoy in relation to its territory (such as fishing rights) and institutions (student funding), it is inconceivable that Scotland would be expelled from the EU, even on an interim basis.
Any uncertainty could be removed by the UK Government asking the European Commission for a formal view and/or taking a more proactive approach now, but of course the Government won't pre-negotiate.
The analysis paper asserts that both the UK and Scottish Governments have acknowledged the need for negotiations, and accept that these can only take place after a referendum. This is misleading. The Scottish Government has called on the UK Government to enter into open discussions on matters that would need to be settled following a Yes vote.
While formal negotiations leading to a binding agreement will have to wait, it would be beneficial to have discussions now, so that so far as possible the UK Government has set out its position, or at least its approach to negotiations, and voters can make an informed choice in the referendum.
For present purposes, the important question is how the UK Government will behave in relation to EU membership. A sensible approach, consistent with Scotland's position within the UK, would be to agree a joint approach to the EU, asking it to treat Scotland and rUK as joint successors (in the broad sense) to the UK, and to renegotiate the treaties on the basis of a division of the current benefits of membership.
The state continuity doctrine is very interesting, but it is naïve to suppose that other EU members will allow rUK to inherit the current UK representation rights in the EU Parliament, the rebate, and all other benefits, correlating as they do to the UK's size and population. Negotiation will therefore be necessary for both new states, as Sir David has made clear.
The question of sovereignty
An interesting point which the paper does not really address, and which should inform the debate, is the issue of sovereignty and the impact of the Edinburgh Agreement and a Yes vote.
English constitutional theory holds that the Crown in Parliament is sovereign, and Westminster could, if it desired, repeal the Acts of Union and the guarantees they contain (for a very interesting discussion of the Treaty and Acts of Union, and whether they constitute "fundamental law", see Lord Gray's Motion 2000 SC (HL) 46, Lord Hope in particular). Parliament has, in fact, altered the Acts on a number of occasions.
It has been observed (MacCormick v Lord Advocate 1953 SC 396) that the sovereignty doctrine is not part of Scots law, but it is a little far fetched to suggest that Scotland had popular sovereignty prior to the Union.
This is, in any event, a stale argument. In reality, there is no recognition of "fundamental law" (as some would call parts of the Acts of Union) in the UK. It is realpolitik that keeps the preserved Scottish institutions, and the Scottish Parliament for that matter, safe from repeal, not any lack of power in the legislature.
A more interesting question is how and whether the Scottish electorate can exercise sovereignty. The UK is a unitary state (albeit the union has never been fully perfected); devolution does not alter that. However, it is clear that the Scottish Government has a mandate to hold a referendum and, by virtue of the Edinburgh Agreement, that the UK Government has consented to such a referendum taking place. Whether consent was necessary is a moot point.
The live point is that a Yes vote would be an expression of the will of the Scottish electorate. Would it be the exercise of sovereign will? Is the Edinburgh Agreement a concession of sovereignty to that electorate?
If there is a Yes vote, what would be the constitutional position of the Scottish Government pending independence? Would it be an independent government within a UK where there has been a fracturing of sovereignty?
What would be the position of the UK Government? Scottish MPs are rarely crucial to its majority, but what would their role be? In UK constitutional theory, strictly speaking a Yes vote changes nothing, and yet it changes everything. We would find ourselves in a black hole, a legal singularity, where the normal rules break down.
Time for some answers
These are very interesting questions. They have not been addressed, but have an impact on the paper under discussion, in particular the UK Government's refusal to take a position on matters prior to the referendum.
The UK could, and should, state its position in the event of a Yes vote. It could easily state its position on Scotland's membership of the EU, and accession requirements; whether it is for (or against) a currency union; and take a stance on a range of other issues. There have been calls for the UK Government to clarify its position from the Electoral Commission, the House of Lords and, most recently, the Law Society of Scotland, which, in its recent discussion paper, called on both Governments to provide clarity on the issues raised in this context.
There is only one short-term beneficiary of the uncertainty caused by the UK Government's stance, and that is the No campaign. It may suit the Government to continue the uncertainty, but if that does lead to a No vote, that result will do nothing to settle the independence question for any length of time.
If the referendum is to "deliver a fair test and a decisive expression of the views of people in Scotland and a result that everyone will respect" (Electoral Commission advice, para 5.42), the UK Government needs to stop being coy. It needs to engage with the Scottish Government, the EU and other international bodies to provide clarity to voters on the consequences of a Yes vote. Its paper on the implications of independence raises more questions than it answers and does nothing to set out the real choice facing Scottish voters.
Brandon Malone (@brandonjmalone) is a member of the Law Society of Scotland's Constitutional Law Subcommittee. This article expresses his personal view.