Thursday, 14 February 2013

A 'Legal Opinion' is still just an 'opinion'

The recent publication by the UK government of the advice it received on "the status of Scotland and the rUK in international law after Scottish independence" has generated quite a lot of heat and comment.  Part of this heat was around the use of the word 'opinion' to describe the report and the advice contained within it.  Supporters of a Yes vote have frequently argued that this report, however distinguished the authors, is one opinion among many.  On the other hand most Unionists have been adamant that this is not just any opinion but an authoritative and  commanding piece of work.  One Unionist commentator on a blog even went so far as to say this was not an 'opinion', but a 'legal opinion'.  One almost felt this should have been followed by a 'so there!'  It is quite touching this faith in the addition of the word legal to opinion, as though this one word turns the advice into something else.  To my mind it seems rather to suggest that many Unionists have so lost the plot and the argument that they are reduced to crying slogans in the hope that debate can be ended.  We now have conclusive 'legal' advice, so why don't you unruly Independentistas just go away and shut up.  This seems to be their message.

It is all rather strange, for the advice from Professors James Crawford and Alan Boyle is when all is said and done, an opinion.  You don't need to take my, non legal opinion on the matter.  The good professors state it themselves.  Just read the cover page of their advice.  It begins with the word Opinion.  Now as professors with a legal training and wide experience, their opinion is likely to carry more weight than mine, but nevertheless it remains an opinion.  The fact that their opinion was commissioned by the UK government does not in itself confer any added validity to their advice.  On the contrary, at least according to Ian Davidson, Labour MP, this more or less confirms it as unreliable.  For Ian Davidson, MP is on record as stating, "if you hire a lawyer to fight a case for you he will fight that case, that’s the point of paying lawyers."  Now of course Ian Davidson was trying to undermine the opinion of someone in favour of independence, but his argument presumably still stands.  So unless the two Professors did their work for nothing, we can dismiss it as worthless.  Not an argument, I hasten to add, with which I concur.  However it does show the lengths to which some Unionists are prepared to go to denigrate their opponents.  The key point is that there are other opinions on the 'status of Scotland the rUK in international law after Scottish independence'.  And some of these opinions, by distinguished lawyers, have been given unsolicited and for no fee.  So they at least are untainted by any whiff of compromise for filthy lucre.

As regards the substance of the advice from the two professors, it is fascinating that at bottom they offer nothing conclusive.  While they outline a number of legal considerations that may affect the outcome, they state in paragraph one of their executive summary that, " In practice, its (Scotland's) 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."  In paragraph seven of this executive summary they go on to state that, "In any event, Scotland’s position within the EU is likely to be shaped more by any agreements between the parties than by pre-existing principles of EU law."  So on the substantive matter under review, namely 'the status of Scotland the rUK in international law after Scottish independence' they agree that the main determinants of this status will be the result of negotiations and agreements between the two governments rather than legal precedents.  Wow, I hope the UK government think their, or rather our money was well spent.

It is also quite amazing that this conclusion is very much in line with what the Scottish government has been claiming for a number of years now.  Indeed when questioned on BBC radio, Jame Crawford made it clear that even if his opinion was to prove correct - that is Scotland is treated as a new state - it would not be a big issue and that the 18 month timetable suggested by the Scottish government for concluding the negotiations for independence, including Scotland's continuing membership of the EU was realistic.  Maybe the UK government should offer more shillings when they next ask for advice.

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