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With Scotland voting on independence on 18 September 2014, the UK coalition government sought advice on the relevant law from two leading international lawyers, James Crawford and Alan Boyle. Their subsequent report has a central argument. An independent Scotland would be separatist, breaking away from the remainder of the UK. Therefore, the latter (known as restUK or rUK) would be the continuator state – enjoying all the rights and duties of the existing UK, while Scotland would be new state having none of rUK’s rights and especially no membership of any international organizations it enjoys now as part of the UK. The bargaining power of rUK as to what it might concede of the UK’s rights would be complete, e.g. with respect to a common currency. This legal opinion has created a confrontational atmosphere around the referendum vote and caused anxiety among Scottish voters about to ‘jump into the unknown’.
It is essential to unpack the distracting complexity of the expert international law professionalism of this advice. Firstly, Crawford and Boyle gloss over the actual legal circumstances of the contract of union between Scotland and England, in particular that the Union was a bargain among powers equal in the eyes of international law at that time. More specifically, the England which, with Wales, concluded the Treaty of Union is exactly the same entity standing opposite to Scotland now as then (leaving aside the North of Ireland which has the option under the Belfast Agreement of leaving the UK by referendum).
There is no international standard, in the event of a dissolution of a union, which can provide any objective criterion to determine that Scotland is the breakaway entity. In international law, recognition of new states is largely a matter of the political discretion of existing states. It depends on an international consensus, or lack of it, where political preference may or may not trump any possibly objective standard of political legitimacy, e.g. self-determination by democratic consent. The vast amount of state practice which Crawford and Boyle’s legal opinion displays is misleading insofar as there is, in fact, no definitive legal marker of guidance. This is shown by the fact that England is the continuator state because it is larger than Scotland. Legally, there has to be a continuator state. But since this obviously cannot be Scotland, it must be England. Even Scotland assumes this to be the case.
It is necessary to focus upon an international legal history of the individual states, rather than the more general international law offered by Crawford and Boyle. The Anglo-Scottish Union displays a phenomenon that Linda Colley has referred to as the composite state. This is where two or more sovereign nations agree to merge their highest governmental level institution (parliament) into a single state made up of several nations – a state-nation – but other lesser local institutions might remain. In the Europe of the 15th to the 17th century this was a common phenomenon, the most celebrated being in Scandinavia, involving Sweden, Denmark and Norway in a variety of partnerships from the Kalmar Union (1397) onwards. The logic of these partnerships was that they were always open to renegotiation. Now, this is precisely what the English generously recognize in the Edinburgh Agreement. The logic of the composite state does not cover the many cases in which a core nation forms itself into a state and then jealously guards its territorial integrity against dissident minorities, which are then regarded as separatist and destructive of national unity. It is possible that an aura of this type of scenario runs through the legal opinion of Crawford and Boyle, although they have to accept the consensual context of the advice they are being asked to give.
The real issues facing Scotland have to be confronted on a basis of equality and mutual consent in accordance with the international law established as apposite for this case. These issues are a matter of history, not merely that of the 17th-18th century, but also the evolution of the 1707 Treaty of Union (implemented through separate Acts of Union passed in the Scottish and English Parliaments) to the very recent past – especially the Thatcher years and the neo-liberal revolution in English-dominated UK politics. It has to be recognized that there are profound differences of social philosophy now between Scotland and England around the issue of neo-liberalism and the defense of community. These provide good reasons to revisit that 1707 bargain. This revisiting should be on the basis of complete equality. The sharing of common institutions of the United Kingdom, such as the currency, would have to be negotiated after reaching an agreement in which neither side – as so-called continuator state – would have a higher standing.
The Union of 1707 – which by uniting the English and Scottish parliaments created the new state of the United Kingdom of Great Britain – was enthusiastically sought by some Scots and grudgingly accepted by many more, even if most people would have been happier with a federal union. What until recently most historians had missed was the identification with the Union of Scottish politicians and their supporters who had suffered under the later Stuart regime. In some cases they’d been forced into exile in the Low Countries They were backers of the Revolution (of 1688-90) in Scotland, which they saw as truly glorious. They advocated union as a means of securing the gains of the Revolution (constitutional monarchy, the re-establishment of Presbyterianism and certain civil liberties) and keeping the Jacobites’ hands off the imperial crown. This was a union based on Whig principles – religious, civic and economic. It was effected, as far as Scotland was concerned, through the persistence of a number of driven individuals some of whom had advocated closer union with England in 1688-9, and were still around in 1706-7 to vote for this in the Scottish Parliament.
I take issue with the centuries-old shibboleth that in 1707 the Scots had been, in the words of Robert Burns, ‘bought and sold for English gold’, by a ‘parcel’ of roguish politicians. The Union of 1707 was not the betrayal of the Scottish nation its critics had long asserted, a measure to be overturned if Scotland was to be set back on its rightful constitutional trajectory – not as a stateless nation within the British union state but as an independent nation state.
Yet support for the Scottish Nationalists in Scotland has grown strongly since the 1970s, along with disenchantment with the British state and Westminster. Scots’ identification with Britain has fallen sharply, with most Scots now feeling more Scottish than British.
Union Jack and Scotland, by Julien Carnot. CC-BY-SA-2.0 via Flickr.
It’s pretty clear that the Union is more vulnerable today than at any previous time since the Jacobite risings of 1714-5 and 1745-6. The props upon which it was built either no longer apply – its core purpose was to ensure that Queen Anne was succeeded by a Protestant (thereby excluding the Catholic claimant, James Edward Stuart, later the ‘Old Pretender’), or are less important. Presbyterianism, the security of which was enshrined (in theory at least) in the first of the two acts that comprised the Union agreement, has ceased to matter for most Scots. Scotland’s economy is no longer under-developed – unhindered access to the English market and to England’s Atlantic and Caribbean colonies were attractions even for Scots who were otherwise opposed to incorporation.
In short, there is a case for saying that the Union is past its ‘sell by date’. Those who are keen to maintain the United Kingdom need to come up with a vision for a Union for the 21st century – or at the very least a rationale – of the kind that inspired Scots to push for such an arrangement in 1707. Many more rallied to defend it – sometimes by risking life and limb – against the Jacobite incursions of 1715 and 1745. Until recently the main pro-Union campaign, Better Together, has been criticized for emphasizing the negative aspects of Scottish independence – ‘project fear’ – rather than the positive virtues of the Union.
Yet support for Yes Scotland – the separatists’ campaign – is (at the time of writing) apparently no higher than around 40% of the electorate, suggesting that when the referendum vote happens, on 18 September this year, a majority of Scots will vote No. Comparison with other nations in Europe that have recently struggled for and achieved independence may tell us something – not least that Scotland’s experience of union with a bigger neighbor has been somewhat less oppressive. Like being in bed not with an elephant as some allege, but a teddy bear. And that currently, notwithstanding its failings, more Scots than the nationalists hoped for still feel comfortable within the Union. It’s a habit that’s lasted for more than three centuries. As things stand, not enough people have found compelling reasons to give it up.
In a week’s time, the residents of Scotland (not the Scottish people: Scots resident south of the border are ineligible to vote) will decide whether or not to destroy the UK as currently constituted. The polls are on a knife edge; and Alex Salmond, the leader of the separatists, has a track record as a strong finisher. If he gets his way, the UK will lose 8% of its citizens and a third of its land mass; and Scotland, cut off, at least initially, from every international body (the UN Security Council, NATO, the EU) and every UK institution (the Bank of England, the pound sterling, the BBC, the security services), will face a bleak and uncertain future.
In the first century BC, the Roman republic was collapsing as a result of its systemic inability to curb the ambitions of powerful politicians. Everyone could see that the end was nigh; no one could predict what would follow. The conditions were ideal for the development of political oratory, and Cicero emerged as Rome’s greatest orator, determined to save his country even at the cost of his own life. During his consulship, he suppressed the conspiracy of Catiline, denouncing that man and his deluded supporters in his four Catilinarian Speeches. He pulled no punches: he did not hold back, like the supporters of the Union today, for fear of appearing too “negative”. So he informed the senate:
“A plot has been formed to ensure that, following a universal massacre, there should not be a single person left even to mourn the name of the Roman people or to lament the destruction of so great an empire.”
For Catiline’s supporters, he had nothing but contempt, telling the people:
“Reclining at their banquets, embracing their whores, heavy with wine, stuffed with food, wreathed with flowers, drenched with perfume, and worn out by promiscuous sex, they belch out their plans for the massacre of decent citizens and the burning of Rome.”
Cicero went straight for the jugular. Two decades later he denounced a more powerful adversary, Mark Antony, who was attempting with much greater forces to seize control of the state. Cicero attacked him in a series of speeches, the Philippics; but Antony did a deal with Octavian, got what he wanted, and had Cicero killed. Cicero’s words at the end of the Second Philippic were prophetic:
“I defended this country when I was a young man: I shall not desert it now that I am old. I faced down the swords of Catiline: I shall not flinch before yours. Yes, and I would willingly offer my body, if the freedom of this country could at once be secured by my death. Two things alone I long for: first, that when I die I may leave the Roman people free; and second, that each person’s fate may reflect the way he has behaved towards his country.”
Cicero denounces Catiline, from the Palazzo Madama. Public domain via Wikimedia Commons.
Where is Cicero today when we need him? The debate on the future of Scotland, and hence of the UK, has been conducted in newspapers, in TV interviews and debates, and in social media. Anonymous internet trolls hurl abuse at celebrities who dare to express their affection for Britain. The Westminster Parliament stays silent. One MP, however, is free of the party whips, and has been touring Scotland delivering passionate, hard-hitting and unapologetically negative speeches in defence of the Union. This is George Galloway, and the speech he gave in Edinburgh on 24 June can be read and listened to here.
Like Cicero, Galloway pulls no punches. He compares the current crisis with 1940, the last time the UK faced an existential threat:
“And not one person asked in that summer and autumn of 1940 and into 1941 if the pilots who were spinning above us defending us from invasion from the barbaric horde were from Suffolk or Sutherland. We were people together on a small piece of rock with 300 years of common history.”
Referring to his political differences with the other supporters of the Union, he says, “We have come together but temporarily at a moment of national peril”, declaring:
“There will be havoc if you vote Yes in September. Havoc in Edinburgh and throughout the land and you will break the hearts of many others too.”
This preference for extreme, unambiguous statements, delivered with the greatest possible emotional force, and this recognition of the significance of the historical moment, is pure Cicero. But what is most Ciceronian in Galloway’s speech is the moral dimension. Galloway is not concerned with whether the new Scottish state would have to concentrate its spending on benefits or foreign embassies. Instead, he harks back repeatedly to the Second World War, that conflict of good against evil, contrasting it with Bannockburn, “a battle 700 years ago between two French-speaking kings with Scottish people on both sides”. And, as Cicero would, he judges an issue by the moral character of the people concerned: on the one side, Brian Souter, “the gay-baiting billionaire” and major donor of the SNP, and on the other, the children’s author J. K. Rowling, “one of our highest achieving women in the history of our entire country”, whose moderate and reasoned support for the Union has earned her hate mail from fanatical separatists. Morality runs like a thread all the way through Galloway’s speech.
How come so few women are in favour of independence? Why are Scotland’s women the most resistant of all the demographics in this contest? The reason is that women simply don’t like gambling. And everything in their project is about gambling — for your future, your pension, your children and their children’s future.
“Let it be inscribed on the forehead of every citizen what he thinks about his country”, Cicero told the senate. Next week, the future of the UK will be decided by a secret ballot. If Britain survives in a political and not merely in a geographical sense, part of the credit will be due to the Ciceronian eloquence of Mr Galloway.
