By Jason Michael

Blair’s New Labour government pushed Scotland’s maritime boundary with England north just before Scottish devolution. Neil Lovatt argues that the assertion that this was a Westminster water-grab is a “classic piece of disinformation.” Let’s see.

Neil Lovatt, the Scottish unionist blogger and author of the online Red White and Blue Book – no doubt a nod to Wings Over Scotland’s The Wee Blue Book, has said that his writing, rather than being polemic, is a response to the pro-independence “memes” that were in circulation during the 2014 referendum campaign. Having read some of his articles and after an unexpectedly cordial exchange with Lovatt on Twitter I have decided to take up his challenge and critique the arguments he is making. It is not the case, as his invitation suggests, that I am saying he is wrong. Facts are what they are. But it is in how these facts are selected and sewn together; what information is emphasised or omitted, and in how it is presented that makes an argument more or less true. Such becomes a polemic when it is constructed so as to serve the needs of a particular ideology or political position, and in this debate we have all become polemicists.

Unsurprisingly enough The Red White and Blue Blog kicked off on 2 August 2016 with “Did Blair move the border and steal Scotland’s Oil?” – a deep enough discussion on the independence movement’s claim that prior to devolution the Westminster government shifted the Anglo-Caledonian maritime boundary with the intention of securing oil reserves on the UK Continental Shelf for the rUK in the event of Scotland gaining national autonomy. There is no argument here that this is a well-researched and expertly presented job of work, yet his derision of the counter argument as a mere meme rather than being itself an argument with merits of its own and as being “the nat meme” – at that – betrays the fact that this is indeed a unionist polemic.

Lovatt contends that the laws governing the sea border between England and Scotland – the Civil Jurisdiction (Offshore Activities) Order 1987 and the Scottish Adjacent Waters Boundaries Order 1999 – together constitute two legal understandings of the maritime border; the former with respect to offshore rights in general and the latter with respect to fishing rights in particular. “In 1999, with devolution approaching,” he argues, “Scotland was set to take over the regulation of fishing from the UK. This was an international obligation due to the Common Fisheries Policy, so it was believed that a boundary that would be more reflective of an international boundary between two states would be applicable.” Regardless of what was “believed,” however, this belief has no basis in law. Neither Scotland nor England entered into this EU agreement as a state party – the UK did, thus nullifying any perceived need to redefine maritime boundaries within the state entity.

Further to this point, as the UK signed the Accession Treaty to the Common Fisheries Policy in January 1972 – a whole twenty-seven years before the 1999 Scottish Adjacent Waters Boundaries Order – the timing of the sea boundary adjustment so close to devolution takes on more significance than any relationship to the European Union. On the surface it would appear then that the late consideration of fishing rights simply provided the necessary pretext to a convenient border modification before devolution.

Adapted from Wood MacKenzie

A case is also made that this 1999 redrawing of the sea border makes no reference to oil, and this is quite correct. No move made on an obfuscating pretext will emphasise its true objective, and so we can expect to find no mention of oil and gas reserves in the 1999 statute. What it does do, under force of law, is create – as Lovatt points out – the ambiguity of two concurrent definitions of the Scottish sea border with England which each have their own purposes. As the latter was unnecessary, what it achieves is a precedent for an eventual de facto international border between England and an independent Scotland.

Notwithstanding the transfer of territorial fisheries rights to a devolved Edinburgh parliament there had existed a recognised sea boundary as defined in the Civil Jurisdiction (Offshore Activities) Order 1987, and this – like all law – did not exist in isolation, but built upon the precedents of the Oil and Gas (Enterprise) Act 1982. What this means is that the 1987 boundary, in which its “offshore activities” include by implication the oil and gas legislated for already in 1982, marked an agreed border that had no need of alteration due to other offshore activities – unless of course there were other conflicting interests, which there were. The argument can be made that in 1999 the shift happened in the context of devolution and therefore not in the face of the potential dissolution of the Union, but to suggest that the UK government was not planning strategically for such an eventuality is preposterous.

In sum what I have to say is that Lovatt does make a good case. He has fabricated nothing, but he does not present a balanced argument – omitting those details that undermine his position in order to give it the impression of being a water tight legal case. His analysis is polemical and based throughout on weighted data and added stress on certain legalities over others. Law is subject to interpretation and he presents his interpretation which, incidentally, has itself become a meme.


The Stolen Seas – Craig Murray, former British Ambassador

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