27 October 2012

Uncertainty which cannot be eliminated, certainly shouldn't be avoided.

Not black, not white, but mingling motley.  If there was one lesson powerfully to emerge from the legal-political debate before the Edinburgh Agreement, it is that Scottish politics is apparently constitutionally incapable of dealing sanely with legal complexity.  

In the Unionist corner, we had Ian Davidson, Jim Wallace and their ilk erroneously asserting with knock-down certainty that the referendum was clearly ultra vires without Westminster's say-so.  In the nationalist corner, every effort was made to ignore the more nuanced legal realities facing Scottish parliament and ministers, projecting instead an air of brisk confidence, giving every appearance that Holyrood's competence to hold the poll was beyond legal question. 

Neither of these positions, and the apparently confident, polarised, black-and-white absolutism of their respective claims, reflected the objective ambiguity of the legal situation around the independence poll, susceptible to different constructions in the absence of any binding precedents on the key arguments.  None of the key political actors were willing to own up to the shoogliness of their legal positions, and the political solutions which were called upon to resolve those legal challenges.  

Last week's agreement on the draft section 30 order may have done the business, but throughout, the public have been treated like numpties by our politicians.  Rather than being addressed like adults, able to understand that in law as in life, we have to deal with ambiguity - particularly when we're breaking new ground, whether by holding a referendum on independence under devolution, or dissolving the state which has entered into European agreements these last decades - we've been smoothly manipulated in the interests of partisanship. Complexity denied, contingency disavowed, both pro-nationalists and those who oppose independence assumed attitudes of bullish certitude. It's understandable that many folk felt at a loss about whose categorical claims to believe.

Plenty of parties are complicit in this, not least our print and broadcast media. Complexity and indeterminacy are ruthlessly pathologised by journalists' glib demands for simple answers, and the shellacking politicians will inevitably receive if they are unable to claim dead-certainty in defence of their positions. I sympathise a great deal with politicians, keen to avoid being put through the wringer, who marshal what legal experts they can find, and march out into the glare of the cameras, apparently full of certainty and bravado.  Emphatic political performances may not eliminate the legal uncertainties you're determined to sideline, but they can at least clear the cawing flock of hacks from off your back. Overall, though, denying the complexity of your legal situation doesn't strike me as a wise strategy. Sometimes you might get away with it, but uncertainty denied has a nasty habit of bubbling up from the cthonic regions which you hoped to consign it to, leaving you looking daft, or worse, disingenuous.  

The Regius Professor of Public Law and the Law of Nature and Nations at the University of Edinburgh, Neil Walker, has an important piece over at the Scottish Constitutional Futures Forum this afternoon, "Beyond the Black and White of Legal Advice", on the extent to which the legal debate on Scotland's position in the EU is beginning to sound an alarming echo of the discussion around the referendum earlier this year:  It is a wide-ranging piece, but after this week, I find myself very much sharing his core concerns about how we deal with these tricky legal topics in Scottish politics.  The lesson? Uncertainty which cannot be eliminated, certainly shouldn't be avoided.

"Alex Salmond has done himself no favours with his lack of candour on the question of legal advice on the pathways to EU membership, and by the complacent assumption which seemed to lie behind this. His attitude, like that of some of his political opponents, has contributed to an atmosphere in which the question of a right to continuing or renewed membership is seen in unhelpfully black and white terms. Either future membership on the part of an independent Scotland is ‘nae bother’ – something which will happily unfold according to the nationalists’ own agenda, or it is a path strewn with dangerous, unpredictable and perhaps insurmountable obstacles. Regardless of the legal niceties, the true state of affairs it is clearly neither of these extremes, but something in-between." 

Read the whole thing on the Scottish Constitutional Futures Forum here.


  1. Ultimately, no matter what your point of view, questions of "right and wrong" are often seen as being distinct from "THE LAW"

    "THE LAW" being that thing bad people hide behind or use to confuse otherwise straightforward questions.

    Lawyers could help in these situations by leading legal neophytes like myself step by step through the issues, but they tend to write for other lawyers, thus compounding the distance between "THE LAW" and "Real people"

  2. But EU membership is not a tricky legal topic. It's a political and diplomatic question. There are related legal questions - EU citizenship has at least been mentioned - but those are peripheral.

    The real problem here, as with the NATO debate, is the unthinking assumption by pundits that the question is important. But why is it important? In other words, what are the practical differences between (semi-)automatic succession on the one hand and more extensive negotiations on the other? For the sake of argument, how would Scotland be impacted were Spain to veto Scottish entry membership of the EU? (For bonus points, how would Spain and rUK be impacted by such a step?)

  3. GrassyKnollington27 October 2012 at 17:15

    I'm afraid I can't agree with you here. In a hostile, wholly unionist media environment the idea that the First Minister should diffidently but candidly step forward with a Facebook style "it's complicated" status regarding Scotland's continued membership of the EU is simply impossible.

    Can you begin to imagine the reaction and headlines.

    " Salmond admits doubts over Europe"

    "Salmond forced to admit EU membership unknown"

    "Labour's questions over EU membership justified"

    "Uncertainty clouds SNP's EU claims"

    and so on.

    Salmond must be certain because this is not a genteel debating chamber, it's politics and it's pitiless. Anything else and he would be hung out to dry by Cochrane, Carrell McColm and other British Nationalist cheerleaders.

  4. A concrete lie trumps an honest opinion. That way lies madness.

  5. Whilt in general I have a distaste for victim-blaming, I cannot help but observe that the Unionists allowed themselves to be led by the nose over this one, and ought to have been much more astute (after all, they insist they are smart enough to know better than anyone else what would benefit our country in the long term). It was clear for some time that Salmond was wording his answers to certain questions very carefully (like a politician, indeed), yet instead of asking more difficult ones they simply repeated those that were getting them nowhere, banging their heads off the same brick wall. What did they expect?

  6. Salmond did the only thing he could do! No one in the EU or NATO will answer this question as the UK is the current member state - so it is easy for the Unionists to attack? He now has to continue to promote the line that there is no earthly reason why Scotland would be ejected or rejected. But IMHO he would probably be better to explain why they cannot answer prior to a referendum result and quit the obfuscation???

  7. It is a very nice short post by Neil Walker, but it really didn't need so eminent an authority to make the point. Its obvious. And indeed many of his points have been made for some time now.

    But it was good to see his expert view join that of less exalted others, that the process of adjustment would be in the spirit of reasonable mutual accommodation, rather than, as many bilious Unionists & eurosceptics are desperately hoping, on punitive terms.

  8. You can go back to 2007 when Eamonn Gallagher- former director general of the European Commission stated: “Scotland and the remainder of the UK would be equally entitled, and obliged, to continue the existing full membership of the EU. This was conceded by Emile Noel, one of Europe’s founding fathers and long-serving secretary-general of the European Commission, who said Scottish independence would create two states, which would have “equal status with each other and the other states”.

    This is backed up by Article 34 of the Vienna Convention on the Succession of States, which reads: “Any treaty in force at the date of succession of states in respect of the entire territory of the predecessor state continues in force in respect of each successor state so formed.”

    Or you COULD listen to Lord Mackenzie-Stuart, former president of the European Court of Justice who stated: “Independence would leave Scotland and something called the rest’ in the same legal boat. If Scotland had to re-apply, so would the rest. I am puzzled at the suggestion that there would be a difference in the status of Scotland and the rest of the United Kingdom in terms of community law if the Act of Union was dissolved.”




  9. Grassy Knollington has the rights of it re the politics of it and why the SNP has taken the approach it has. Yes it's stupid, a lot of Scottish politics is stupid but the SNP is in it to win independence not change the rules of the game and deliver a different, more grown up style of politics. In an ideal world it would be good if they could do both but in this world the whole independence project would be swinging from the end of a rope in no time.

    Of course it is a political issue but from my point of view some of the legal issues haven't really been considered. I think the SNP should go into them in greater detail and maybe that is what this specific legal advice is going to be about, I don't know.

    But logically think what it would mean legally if Scotland did not automatically inherit EU membership. It could mean that all EU laws, rules and regulations ceased to apply I imagine. If you are not a member why would they? It could also mean that every EU citizen would lose their right to live and work in Scotland. That could include all English/Welsh/Northern Irish people. Imagine that - unionists are implicitly wishing for a scenario where British people would be made foreigners and lose all their rights in an independent Scotland while the SNP is arguing that won't happen.

    It won't happen, it is just too impractical. All these arguments are head-of-a-pin stuff. The EU would not want to lose Scotland because if Scotland goes frankly it could open the floodgates. There are plenty of nations/regions in Europe which are not that enamoured of the EU right now. Collapse is not out of the question. Even if that was not the case the EU is not only expansionist by nature it is also integrationist (if that is a word). Everyone with any knowledge of the EU knows that. Not only an ever expanding Union but an ever deeper one.

    There's no doubt the past week has been a bit of a cock-up but it was pretty close to being genius. The key word there was "specfic" but of course that gets lost in all the palaver. But it nearly worked. Maybe a bit less cocky in future though!

  10. It may be clever to outsmart your political adversaries but is it wise to continually try and outsmart the very folk you want to be on your side? It's getting harder by the day to keep this "vision" of new Scotland alive in my head let alone share it with friends who are wavering.

  11. It may be clever to outsmart your political adversaries but is it wise to continually try and outsmart the very folk you want to be on your side? It's getting harder by the day to keep this "vision" of new Scotland alive in my head let alone share it with friends who are wavering.

  12. You can't lie to the people and expect them to trust you. The rest is flim flam.

  13. It is not a question of trying to outsmart your political adversaries. It's a question of trying to stop them writing the narrative. The whole issue around this legal advice thing depends on the public being ignorant of how things work. It's completely cynical. It's something to remember when you see Labour or Lib Dem former ministers standing up and saying we demand that you publish your legal advice - not only do they know that the Scottish Government can't possibly do that (unless they have specifically commissioned legal advice for that purpose) but they also probably know that any legal advice provided by Scottish law officers would, in this context, be meaningless. These experts may be experts in Scots law but this is not a matter of Scots law, is it? It is not really a matter of law at all but, insofar as it is a legal matter, it is one for the multitude of lawyers working at the European Commission/Council.

    I don't know how the whole "legal advice" thing became such a shibboleth but that is all it is. It has been a useful tool in a sense for the opposition but it is intrinsically meaningless. In the context of what has happened so far it simply means that the Scottish Government has not said anything they could be taken to court for! In the context of the specific legal advice Nicola Sturgeon talked about commissioning, I doubt that is actually going to be legal advice coming from Scottish law officers.They may be responsible for obtaining it but I don't see how they can provide it because, as I said, they don't actually have any authority to give legal advice on the EU.

  14. Groundskeeper willie28 October 2012 at 12:04

    When considering how to vote in the referendum the Scottish people should be aware that, regarding EU membership, in Prof Walker's words

    'it is simply unclear whether an independent Scotland should be treated as having continuing membership alongside the rest of the UK, or whether Scotland would have to re-apply'.

    Simply unclear.

    Why don't the nats tell it like it is instead of the snake oil bullshit we've had to date. They seem to think we're daft.

  15. The reason the SNP has taken this approach is because the unionist parties constantly argue the opposite - that Scotland would be kicked out of Europe, would have to re-apply, would be an accession state the same as other new states and would therefore have to join the euro. They have said that over and over and over again. It is quite simply bollocks. But the SNP can't simply say bollocks. They have to put forward a counter-argument which they have done. They can't afford to appear weak or unsure. Which leads to the very polarised debate that we have but that is actually beyond the control of the SNP. So it is valid to say that the SNP isn't 100pc sure of what it is saying - but it is 80pc sure, whereas the unionist side in fact knows that Scotland will not be an accession state, will not have to join the euro etc. That does not matter to them because all that matters is casting doubt and they'll say any old rubbish to do that. Which is fine - if that's your tactics I welcome that because you have pretty much reached the point now where you can't go much further in terms of attacking the SNP. You have already called Alex Salmond a bare faced liar. You have already used all your scare stories. Where do you go for the next 2 years? Just saying the same things over and over and over again?

    It's really interesting actually. There can by definition be very little progression in the Better Together narrative because they have already reached the end point. It will be fascinating to see how they take things forward when the white paper is published.

    If I was them I would have made a point about appearing to be quite reasonable during thus period and waited until the 6 months run-up to the referendum and then started launching the scare stories one after another. It would have been much more difficult for the SNP/Yes side to rebut them that bit closer to polling day. As it is you have thrown them all into the mix before the campaign has really started. It will all be stale and old by the time Autumn 2014 comes. Not sure what the thinking behind that was.

  16. Indy

    Andrew Neil asked "Did you seek advice from your own Scottish Government legal officers?"

    Eck said, "Yes we did, in terms of the debate".


    All the rest is self delusion and self justification.

  17. Braveheart - no-one cares. I have Lab friends who keep saying to me but Henry McLeish and Wendy Alexander resigned over less.They genuinely think Alex Salmond is going to go!

    But neither Henry or Wendy resigned because of a great public clamour against them. By and large the public didn't care - and doesn't care - about process issues. Unless it is something really glaring like MPs expenses or lying over the Iraq war the public tend not to get bothered about the minutae that the press and opposition politicians get bothered by.

    Henry McLeish resigned because he mishandled things and was not given enough support by his own side. Wendy resigned because her own side knifed her in the back. Neither of those two things is going to happen to Alex Salmond.

  18. Indy

    It's not about who cares.It's about the future of my country and I don't care to entrust it to Eck and his like.

  19. Actually, it's better if Salmond doesn't resign.

  20. Braveheart.

    “Have you sought legal advice on this matter?”

    That is what Andrew Neil said but your version shows different words to suit your political agenda not about truth.

    "Did you seek advice from your own Scottish Government legal officers?"

    Your version amongst many cited by various members of your party which is a blatant altering of the facts.

  21. Groundskeeper Willie29 October 2012 at 12:05

    Indy said...

    'The reason the SNP has taken this approach is because the unionist parties constantly argue the opposite - that Scotland would be kicked out of Europe, would have to re-apply, would be an accession state the same as other new states and would therefore have to join the euro.'

    Could you cite an example of anyone saying that Scotland would definitely be kicked out of the EU? Lots of people saying it might happen, but I'm not aware of anyone sayings it's a certainty.

    And as things stand it is a possibility that cannot be ruled out.

  22. GW the entire premise that Scotland will be a new entrant - an accession state - is based on the premise that it will be kicked out.

    Labour in particular repeats the idea that Scotland will be a new entrant over and over and over again as fact.

    Interestingly I have had a couple of conversations with Lab people who have said the same thing as you though! They have said we are not actually saying that Scotland would be thrown out the EU, it probably wouldn't be, we are just saying that Scotland would have to re-apply for membership and all the conditions that apply to new members would apply to Scotland.

    Funny thing is I don't think they even recognise it as the sophistry it is!

  23. I find it surprising that Professor Walker feels able to state that "it is clearly neither" of these extremes. "likely to fall somewhere between" would have been a more measured statement.

    It is not in the EU's interest to make it easy for countries to leave the EU. The EU is desperately trying to hold itself together. It would be odd if it chose to hand a precedent to the various parties in Europe that would like to leave.

    Currently, there is only one precedent for a country (Greenland) leaving the EU (EEC) and they had to hold a referendum to leave.

    It is also "clear" that there is no precedent for any country being forced out.

  24. Groundskeeper Willie30 October 2012 at 10:04

    I'd still like to see an example of someone who has said Scotland would definitely be kicked out of the EU.

    So far as I know all that anyone has said is that it is a possibility that cannot be ruled out.

    It's Salmond and the SNP who are offering certainty here.

    Certainty which doesn't exist.

    The truth is no one knows for sure what would happen, and it's on that basis that we are to vote.

    Just be honest about it.

  25. Rather than make unfounded assertions about "the truth", perhaps it would be helpful if people were to do some actual research, based on decades of experience and a proper analysis of the facts.

    Like this:

    By a senior British civil servant, who among other things is a Companion of the Order of St. Michael and St. George (CMG) for services to European affairs.

  26. Anonymous,

    I don't see how that substantially changes the point that persuasive legal opinions may be gathered on both sides of this contentious issue. We needn't even stray beyond the Foreign Affairs Committee responses which the opinion you mention comes from, to find others from similarly well-credentialed folk taking the diametrically opposite legal view.

  27. GW every time a Labour politician says that Scotland would be a new entrant to the EU they are saying that Scotland would be kicked out.

    You cannot be a new entrant to something you are already a part of.

    That is the SNP's position. We are in Europe. We will stay in Europe. We are as certain of that as we can be certain of anything.

    Is there a possibility that Scotland could be kicked out? Yes. There is also a possibility that the dead will rise and walk or that Atlantis will resurface or that Scotland will win the world cup. Anything is possible.

  28. Groundskeeper Willie1 November 2012 at 10:37

    Indy said...

    'We are as certain of that as we can be certain of anything.'

    Albeit unwittingly you have stumbled on the weakness of the SNP's position here.

    If your certainty on this issue is ill founded where does it leave you on the rest of your policies that you're not so certain about?

    You're coming over as a bunch of snake oil salesmen, prepared to say anything, to offer any assurance, in order to make a sale. It reeks of desperation.

  29. Lallands,

    I doubt very much that the writer of the article is a Scottish nationalist. Neither am I. I do however spend most of my professional life negotiating with lawyers on the interpretation of documents, where frequently we are confronted with a party who asserts that we are not allowed to do what we want to do.

    The lawyers of all parties are equally credible (generally magic circle) - or equally useless depending on your point of view. As soon as it is possible to construct more than one interpretation of a clause (which is most of the time) the factors that drive the outcome include precedent, context, intention of the parties and the quality of the arguments put.

    I do not propose to rehearse the arguments put in the publication. Suffice it to say that while the law is not absolutely clear, it is clear that the claims made by unionists are not in accordance with the few precedents that do exist.

    Taking your logic on credibility of parties à l'outrance, in the case of a man who murders someone in front of a packed audience, the fact that the defence counsel is as eminent as the prosecutor would make the man's plea of not guilty just as persuasive as the fact that he stuck the knife in.

  30. Groundskeeper Willie1 November 2012 at 12:17

    'The lawyers of all parties are equally credible (generally magic circle)'

    Is that London magic circle or Edinburgh magic circle?

    'Suffice it to say that while the law is not absolutely clear, it is clear that the claims made by unionists are not in accordance with the few precedents that do exist.'

    'It is clear that.'

    That Neil Walker clearly doesn't know what he's talking about. Clearly.

  31. "the public have been treated like numpties by our politicians"

    Indeed. Truth is the greatest weapon, it does indeed set you free. If the YES campaign embraced it fully, it would win, as would the SG / SNP / Salmond. The case for Independence does not need any spin or evasions.

    Good blog, glad to see you've got a link from SCFF. Good article by Neil Walker there, though I don't completely agree with it.

  32. Changed my mind, I do agree with Neil Walker.