The Fiction of the Continuing State
Part IV of the legal opinion published by HMG last year claims Scotland was “extinguished” when it was absorbed by England in 1707, and that the dispositive evidence to the contrary of Articles of Union can be discounted.
With the best will in the world, this part of the document appears to be risible.
It is the work of two eminent lawyers James Crawford, and Alan Boyle who were tasked to provide legal advocacy and the imprimatur of learned consideration, for a line of argument that does not withstand even the most cursory examination.
Is is unclear how it could withstand scrutiny by any impartial jurist. It is beyond me why the Scottish Government has ceded this ground without any apparent resistance.
If you peruse Part IV of the UK Government’s Legal Opinion of 2013 (link above), HMG went to extraordinary lengths to argue England is the continuator state.
HMG holds that Scotland will be a brand new state and as such not heir to the assets of the UK. They do hold however, that Scotland is heir to the liabilities of the UK. This is surely a case study in having your cake and eating it too.
HMG had no alternative but to argue that case if it is to be reasonably sure of retaining its vanity permanent seat on the UN Security Council, have minimum difficulties in retaining its opt-outs within the EU, and to continue the fiction of a UK marching on “move along, nothing to see here” as a major power.
The fly in the ointment is that they simply cannot afford another 100+ billion debt on the books as their state is simultaneously diminished, losing close to 10% of its GDP, 90% of its oil and gas reserves and revenues, and a third of its landmass.
That is why the have adopted this convoluted argument that Scotland was “extinguished” when it was incorporated into England in 1707, that England continued, and that the titles “UK” and “England” are synonymous, describing the same continuing unitary state.
They argue that therefore Scotland is part of the territory of the continuator state of England/UK, a part which will secede from the mother country of which it has been a province for the past 307 years. Scotland will then be a newly born state with no right to the assets of the UK but liable for it debts.
However, the Articles of Union of 1707 do seem to offer dispositive evidence to the contrary. Consider this statement from Article IX:
‘… the Parliament of Great-Britain, to be raised in that Part of the united Kingdom, now called England …’
Now, doesn’t that single statement kill HMG’s case stone dead? What it is saying is that England is part of the UK, not that it is the UK or that it has absorbed Scotland, which by deduction must be the other part of the UK and therefore not part of England. That is to say, the statement tells us they are both component parts of a binary union. N’est-ce pas?
This is but one example of the evidence leading inexorably to the conclusion that HMG’s position is bunk.
Now HMG in its legal opinion, discounts the relevance of the Treaty (act) of Union of 1707. We’re not here to argue their case, but to challenge it. The treaty and enabling acts of parliaments that created the UK are not relevant?
Now, that case could be made but it is very thin gruel indeed, and the argument being offered here is that there is at least one other that is far more robust.
Alright, so can we construct that more reasonable and convincing case?
Well let’s see . . .
The United Kingdom of Great Britain is a legal and political entity formed by the Union of two and only two countries – the Kingdom of Scotland and the Kingdom of England (incorporating Wales). It was created by a bilateral internationally recognised treaty.
It is the case that upon dissolution of the Treaty of Union, its associated enabling acts of parliaments, and any subsequent contingent intra-state treaties and agreements derived therefrom, the United Kingdom of Great Britain will cease to be.
As you might expect, two and only two successor states will emerge from its discarded husk – the Kingdom of Scotland and the Kingdom of England. There can be no continuing state of an extinguished voluntary union of two nations. It is on its face a daft proposition.
Consider the tautology: When the Union is dissolved, the Union ceases to be.
Scotland as a successor state, just like England, would retain EU membership, though there would have to be negotations with both successor states and the EU to regularise their new status.
Each will inherit the rights and responsibilities of any inter-state treaties entered into collectively on their behalf by the (by then) defunct United Kingdom.
Each successor state will be heir to their share of the accrued assets of the United Kingdom, and responsible for their share of the liabilities incurred by the United Kingdom during the tenure of their union.
The Scottish Government’s incomprehensible response
The Scottish Government has habitually talked about secession and leaving the UK. It has ceded the point that the UK will continue to exist after Scotland leaves.
In doing so it has agreed with the assertions of London that England/UK will be the Continuing State, and conceded that Scotland is not a successor state
As noted, the only way for Scotland and England to be free of one another is by the dissolution of the union that binds them. That requires that the signatories of that union reemerge as successor states.
You either have two successor states, each heir to the assets and liabilities of their former union,
a single continuing state, heir to all of the assets and liabilities of the former union, AND a completely new state, heir to neither the assets nor the liabilities of the former union.
This is self evident, yet the Government of Scotland, charged with the responsibility of representing the interests of the People, has singularly failed to usefully challenge the outrageous assertion that Scotland does not exist, that the territory describing the realm of Scotland is today and has been for the past 307 years, an integral part of England, and that consequently, we are all Englishmen and women.
The Union Government by adopting the findings of this opinion, has officially denied Scots their homeland, their claim to nationhood, even their existence as a people.
HMG has explicitly rejected the people of Scotland’s claim to their fair share of the accrued fruits of their labours over the past three centuries, manifest in the current cumulative wealth of the United Kingdom of Great Britain.
This wealth exists in the form of the Union’s treasure, its institutions, its treaties with foreign states, and its commercial agreements with global business.
The official position of HMG as previously state, is that Scotland will be a brand new nation, that will have no claim to the assets of the Union, but will be liable for its portion of the liabilities of the Union to the tune of £100,000,000,000 (100 billion).
Oh, and they also want to charge Scots for the huge cost of relocating England’s strategic nuclear arsenal currently ensconced in Faslane. You’ve got to admire London’s chutzpah.
Let us be clear about this: The Government of England/UK has signaled its intent to commit larceny on a monumental scale against the Scottish people, and it is doing so without any apparent conscience or embarrassment, in broad daylight, in front of the eyes of the entire world.
Where’s the outrage?