The Fiction of the Continuing State

Articles_of_UnionGrand Larceny and 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?


Comments (60)

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  1. Steven Grubb says:

    Scary stuff.

  2. Steve Bowers says:

    Good morning Bella, i think ( at least I hope ) that the SG is keeping it’s powder dry for the moment. all we’ve seen so far is them popping up and stamping on the wee fires lit by London, people like yourself, wings over Scotland and wee ginger dug are doing the hard foot slog and doing it bloody well ( keep it up ).
    I fear their next move may have a direct impact on you guys, cast your mind back about 4 weeks, “bombs” found in several army recruiting offices in England…. by my read of these type of things, the “bomber” has usually been identified way before now… the type of “bomb” is released to the press with some scant details for us all to breathe a sigh of relief that the security organs have saved the day.
    Will it be a conspiracy of “cybernats” who “planted” them, will tyhey scoop you guys up for 7 months of questioning…………..remember…… they have previous form for this………….fake explosives but real detonaters in Edinburgh in the 60s all set up by the Met alledgedly. Keep an eye out please.

    1. That is a big concern of mine, Steve. I also worry that there might be some kind of well timed event that will “highlight” how much safer we are in this union. I would put nothing past the establishment.

  3. Robert Louis says:

    Excellent piece Christian.

    When this cloud cuckoo land ‘legal’ analysis came out from Westminster, I said that the Scottish Government must not let it stand unchallenged. I have no idea why they chose to do nothing.

    The fact is, as I have said many times is that regardless of what happened post 1707, the ONLY document which gives Westminster ANY authority over Scotland is the treaty (and respective acts) of union of 1707. An international treaty between two sovereign nations. How such a document is construed as meaning that in 1707, Scotland ceased to exist and became part of greater England, is truly beyond me. Pure fantasy on the part of Westminster.

    Indeed this was also part of what was stated in the court of session in the MacCormick vs. Lord Advocate ruling in 1953.

    The Lord president in that case noted “Considering that the Union legislation extinguished the Parliaments of Scotland and England and replaced them by a new Parliament, I have difficulty in seeing why it should have been supposed that the new Parliament of Great Britain must inherit all the peculiar characteristics of the English Parliament but none of the Scottish Parliament, as if all that happened in 1707 was that Scottish representatives were admitted to the Parliament of England. That is not what was done.”

    He also noted “I have not found in the Union legislation any provision that the Parliament of Great Britain should be “absolutely sovereign” in the sense that that Parliament should be free to alter the Treaty at will”

    SOURCE :

    I do not know if the current Scottish Government actually HAVE officially agreed with the analysis, OR that rUK will be a continuing state, but if they have just rolled over, and let things be, then they are utter fools, and I’d be disappointed.

    Independence will be the ending of the treaty of union. What is left outside of IScotland can call itself whatever it likes, rUK, fUK or even UK, but it is most certainly NOT a continuing state. The UK as currently constituted would cease to exist.

    I’d love to know what the peat worrier thinks of all this.

    As an aside, I think that in all of this it is important to remember the distinction between Scots and English law, despite Westminster continually trying to suggest they are the same thing.

    1. DavidGeorge says:

      This is a genuine question. What is the rationale for this statement in the HMG opinion?

      “First of all, the status of Scotland before the union of 1707 would be of little or no relevance. In particular, the Treaty of Union, considered with or without the Acts of Union, does not currently sound as a treaty in international law.”

      I was surprised to read it, but I am not a constitutional lawyer.

      1. andygm1 says:

        I believe their theory is that the treaty was only an international treaty because it was concluded between two independent countries. As those two countries no longer exist and the treaty mentioned no other countries, then the treaty effectively ceased to exist when the UK was created as you can’t have a treaty with yourself.

  4. waynecuthbertson says:

    Very interesting article!

    Christian, I wouldn’t be so sure the SG has conceded the ground in the manner you describe. A lot of the points you made have been made before, by David Walker for example, see here:

    Colin Mair’s blog over on scottishconstitutionalfutures is also worth a read:

    There is also a considerable body of academic literature on the subject for those especially engaged.

    Whilst I agree with you that the Treaty of Union (and its subsequent Acts in both parliaments) did extinguish both Scotland and England, the question of whether Scotland is a successor state, or a continuing state, has really more to do with politics. It is possible that international organisations will take a different view on the matter depending on how they view their interests as being best served. Whether a consensus is arrived at cannot be predicted at the moment, as it will depend on the formal agreement reached between the Scottish government and rUK. International organisations will wait for that before making any decisions.

    On the report by Boyle and Crawford, the thing to note about their little venture into history and the 1707 Union was how little research they had done on the matter. Look at their footnotes. T.M. Devine, The Scottish Nation… Are you serious? I’d have expected a first year history student to have made more of an effort than that, never mind two academics. Such paucity of research was pathetic and embarrassing, their misunderstandings must be seen in that context. As a bare minimum they should have been looking at the three books about the Union which came out at the tercentenary (Whatley and Patrick’s is by far the best):

    C. Whatley & D.J. Patrick, Scots and the Union
    A.I. Macinnes, Union and Empire: the making of the United Kingdom in 1707
    M. Fry, The Union: England, Scotland and the Treaty of 1707

    I think their views can therefore be dismissed as exotic, unsupported, contrary to widely accepted historical fact and based on a level of research which would shame the most mediocre of undergrads.

    In the end however, it doesn’t matter to me whether we are a successor or continuing state, independence will be sweet just the same. Moreover, there might actually be quite a lot of benefit in being a successor state. Do we really want to be bound by all of UK’s international obligations? Not necessarily. The process of joining the EU, UN, NATO etc. will be a self-affirming one, as we carve out our own unique place amongst the community of nations.

  5. It’s the UN security council bit that gets me. I’ve met countless (and I mean, very many) senior military who concede that nuclear weapons are unconscionable, and militarily unusable, and therefore a waste of resources that could be better spent on weapons that have greater practical utility in modern warfare, especially asymmetric warfare as they call terrorism. But when pushed to the point many will say, “But we need them to retain our seat on the UN Security Council.” When I ask why that matters, it’s to protect our economic interests, and continue the tradition of Great Britain standing up for justice in the world, as “when the Royal Navy stamped out slavery.” Britain therefore has to stay in a position where “we can punch above our weight.” To which I reply, “If justice and peace are a major concern, and the only morally legitimate concern, why should we ever want to ‘punch above our weight’?” See my earlier Bella piece that was given the title “A culture of contempt” for some suggestions as to why. Can we not, all of us, try mellowing out into being mature nations that work for justice and peace, taking away the causes that lead to war, rather than feel that if we can’t flout Trident and join America in its latest excursions of “manifest destiny” to police the world, then we’re nobody?

    Please lay down your pistols and your rifles
    Please lay down your colours and your creeds
    Please lay down your thoughts of being no-one
    Concentrate on what you ought to be
    Then lay down your bullshit and your protests
    Then lay down your governments of greed
    Take a look at what lies all around you
    Then pray God we can live in peace

    (Barclay James Harvest, one of those great English rock bands that causes me still to feel pride in that part of my birth and ancestry that is English).

  6. yerkitbreeks says:

    I remember a discussion on tele a few years ago when a Labour politician was claiming that his party was responsible for all the good that had accrued up here and the Scots lawyer’s response was that it was the legal profession which had protected Scotland since the Treaty regardless of the party in power, ” while all you politicians ran off to try to become English ” ( contemporaneously remember Gordon brown’s elocution lessons ). I felt like cheering so I suppose it’s in the blood. Changed my opinion of the profession a bit as I’ve run up against them in Chambers !

    Although not trained in law, I had a stab at Crawford and Boyle’s opinion the other day and whilst not understanding all the arguments, formed the opinion it was in the same mould as the one recently drummed up by Osborne ie ” he who pays the piper ” and all that.

    Like you, I lament the lack of an aggressive stance, but this I believe is due to pragmatism, since for the reasons to which you allude ( position in UN etc ) this would cause uproar in Westminster and jeopardise the end result. While I agree the journey is often as important as the destination, in this case powder should be kept very dry.

  7. If Scotland becomes independent, it will not involve the dissolution of the Treaty and Acts of Union. Sure, they will be amended but if SNP get their way, they would need to retain Article 2 in an amended form which provides for the singular succession of the Monarch.

    A flaw in this argument is that the Acts of Union of 1707 did not create a country called the United Kingdom. It created a country called Great Britain (Article 1). References to the united Kingdom (lower case) or United Kingdom (upper case) relate to, literally, the Kingdoms being united. This is why the fiction that the 1603 “union of the crowns” would persist is a fiction because it was only ever personal. It was 1707 that created the statutory union of the crowns. The United Kingdom was created in 1800 by union with Ireland and it is that union from whence derives the party political labels of “Unionist”. The United Kingdom of Great Britain and Northern Ireland is literally that – a union between a country called GB and one (now) called Northern Ireland. The UK is in fact a very young country dating from 1922 or 1937 depending on your constitutional preference vis a vis Ireland.

    1. It is good that Andy has raised this point. If Scotland leaves the United Kingdom, the rUK will still be in place, because Northern Ireland is what remains of the second element of the UK – Ireland – after the 1801 Act of Union.

      So many people, whether British unionists or Scottish nationalists, talk of the ‘break-up of Britain’. What is really being challenged by the exercise of Scottish self-determination is the continuation of the United Kingdom of Great Britain and Northern Ireland. The ‘break-up of Britain’ (Great Britain consisting only of England, Scotland and Wales) would require geographical change involving epochal tectonic plate movements; the break-up of the UK state requires political change, fortunately not so long a process!

      This is one reason why the Ulster Unionists and Loyalists in Northern Ireland, Scotland and England (particularly Liverpool) are so strongly opposed to Scottish independence. Given their wish to uphold a continued sectarian (and implicitly racist) UK, this is another major reason why we should support the exercise of Scottish self-determination, to further undermine such unionist and imperial pretensions. Furthermore, a full break with the UK state can only come about through the ending of the monarchy, and even more importantly, the anti-democratic Crown Powers at the disposal of the British ruling class.

      One small point – Andy states that, “The UK is in fact a very young country dating from 1922 or 1937 depending on your constitutional preference vis a vis Ireland.” Add the word “current” before “UK” and this is true. The present territorial extent of the UK has only been in place since the Partition of Ireland in 1922, which left Northern Ireland within the UK. Thus today’s UK historically is already a rUK in relation to the 1801 Union. Furthermore, a claim could be made that “vis a vis {26 counties} Ireland”, political independence was only finalized by the Republic of Ireland Act of 1947, followed by Ireland leaving the Commonwealth in 1948.

      1. Consider the text of the article which addressed your point:

        “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.”

        Any subsequent contingent intra-state treaties and agreements derived therefrom, The other “arrangement” to which you referrer have no force in the face of the dissolution of the union upon which they are contingent.

        It is also clearly not credible to state that the United kingdom can survive its own dissolution, regardless of the status of these subordinate relationships.

        Now England and Wales and NI are of course free to form their own Union if they so choose, but the union that bound Scotland to England will be gone; extinguished as the treaty binding the principals that brought it into being is ended.

        This rational summation requires not convoluted twisting of logic to establish or maintain its validity. That is its great strength in the face of these obfuscations and irrelevancies conjured to rebut it.

        WRT the monarchy and the argument that a break with it is required to end the Union – this is directly contradicted by history which notes that the Monarchy was united for a hundred years BEFORE England and Scotland were joined in union.

        It is also worth the taking the time to consider that in Scotland the People are sovereign and that they are not bound to follow the diktat of England in respect of the dissolution of this union.

        1. Christian’s interpretation appears to me to depend on an over-legalistic view of the political situation. It assumes some neutral overarching international court, which could uphold such a legal ruling. No such body exists. Certainly, neither the United Nations, nor the European Court of Justice, would be likely to uphold Christian’s judgement. Any legal rulings emanating by appeal to such bodies, will far more likely reflect the relative political power of the states involved.

          The SNP government’s own ‘Independence-Lite’ proposals, outlined in their White Paper, would form the basis for any negotiations between the UK and Scottish governments. Furthermore, the SNP government has made it clear that it has no intention of summoning a Constituent Assembly in the aftermath of a ‘Yes’ vote, but would take MSPs from all the existing parties in Holyrood into its negotiating team.

          Maybe, the UK government would take representatives from all the existing unionist parties – whether from England Scotland, Wales or Northern Ireland into their negotiating team. The situation could be complicated by the possibility of a change in the Westminster government in 2015. Remember though, under the SNP government’s independence timetable, the UK would continue in existence until 2016, whatever differences Christian and I hold over its partial continuation after that.

          It is not clear to me what point Christian is trying to make, when he states that “the Monarchy was united for a hundred years BEFORE England and Scotland united”. Unless he is suggesting that the ending of the 1707 Union of the Parliaments and the creation of Great Britain, would simultaneously end the 1603 Union of the Crowns.

          That is not the basis on which the SNP government proposes to conduct its negotiations. It is adamant that the Union of the Crowns will remain in place. As the majority in any post-‘Yes’ negotiating team, it will be in strong position to ensure this. Any effective challenge to the continuation of the monarchy and the Crown Powers will depend, not on particularist legalist interpretations, but on mobilising sufficient political forces.

          This is why it is so important that we raise the issue of a post-‘Yes’ Constituent Assembly (or equivalent body) now, so that the SNP government’s already diluted ‘Independence Lite’ proposals are not further watered down.

    2. nordbreton says:

      “We note that the incorporation of Wales under laws culminating in the Laws in Wales Act 1536 (England) and of Ireland, previously a colony, under the Union with Ireland Act 1801 (GB) and the Act of Union 1800 (Ireland) did not affect state continuity. Despite its similarity to the union of 1707, Scottish and English writers unite in seeing the incorporation of Ireland not as the creation of a new state but as an accretion without any consequences in international law.”

      “There is one further example of state practice of direct relevance to the UK: the separation of 26 Irish counties in 1922 to form the Irish Free State, which was treated just as a change in territory rather than a break in the UK’s continuity.”

      Not even Crawford & Boyle are trying to argue that the state now called the United Kingdom was created at any point other than 1707.

    3. MBC says:

      Andy, Article 1 is ambiguous. Let me publish it here in full.

      1. That the Two Kingdoms of England and Scotland shall upon the First Day of May which shall be in the year One thousand seven hundred and seven, and for ever after, be united into one Kingdom and by the name of Great Britain; and that the Ensigns Armorial of the said United Kingdom be such as Her Majesty shall appoint, and the Crosses of St. George and St. Andrew be conjoined in such manner as Her Majesty shall think fit, and used in all Flags, Banners, Standards and Ensigns, both at Sea and Land.

      Article two continues:

      2. That the Succession of the Monarchy to the United Kingdom of Great Britain….

      Article three repeats: (this is the killer clause)

      3. That the United Kingdom of Great Britain be represented by One and the same Parliament, to be stiled, the Parliament of Great Britain.

      4. That all the Subjects of the United Kingdom of Great Britain shall,…..

      And so on.

    4. Muscleguy says:

      Did we not mean the Declaration of Arbroath? A ‘singular succession’ indeed. I expect that at the very least the iScottish Parliament will need to agree the succession. Or are we to let another country decide our monarchy for us?

      Fie to that.

  8. Johnny come lately says:

    The reason I’m sure that Salmond hasn’t chosen to react or challenge this nonsense is because this is a fight for another day. These so called obstacles are thrown deliberately in the way of the SG in the hope that they will react and get into arguments and disagreements about everything under the sun, instead of concentrating on the real issue-independence. This is tactics. The SG has a strategy, which is something totally different.
    I have noticed that there are many things which the SG could have made much political hay out of, but have instead chosen to let slip by. This I think is an excellent strategy as nothing must distract from the issue at hand-independence. The validity of these nonsensical claims and assertions can easily be challenged and dismissed when the time is right. A sovereign state with access to global institutions, international law and free from the dead hand of Westminster will have no trouble in dismissing these outlandish claims. It should be remembered that Westminster has form in this area and has printed more than 800 pages of dodgy reports, ridiculous assertions and pie in the sky legal advice over the last 1½- 2 years.

    1. Ian Kirkwood says:

      Yes, fully agree. Just hope that the SG do too and have this under control.

    2. setondene says:

      And, indeed, it may suit the SG to allow this crass intervention by Westminster to seep into the Scottish public consciousness just to let people see what our rulers actually think of the non-existent region once known as Scotland. I did note that Westminster politicians were careful not to endorse this particular legal view, but it does kind of create a certain smell that is not dissipating.

    3. William Hogg says:

      I also believe that the SG are taking a pragmatic view of this argument as it is a tedious distraction, when the prize is in view. I anticipated that as the polling figure narrowed, negotiations would commence and the SG would use this as a bargaining token. We can see that the Foreign Office want to retain the UK international status and seat on the UN Security Council, which require Scotland to be seen to leave the UK. The quid pro qua is that the UK Gov supports Scotland in its negotiations with the EU, etc. This will also mean that instead of taking what we are given by the way of assets, we will only take what we want against a commensurate level of debt. So expect bargaining over things like the Bank of England and it’s assets (ie 1/3 of the National Debt). However, departments like the MOD have moved all they can out of Scotland and can’t afford to let anything go, so no assets transferred, no debt transferred. That only leaves the real movers in all this the military-political-industrial oligarchs who will loose their work on the vainglorious Trident replacement (as rUK can’t afford it), but they will be compensated by the much more lucrative projects, that are mainly internal to the UK, like the HS2. NB Building frigates on the Clyde for Scotland, rUK and international orders is good dividend generating work for BAe’s shareholders.

  9. bringiton says:

    Whatever the outcome,there are going to be two new states,Scotland and another,neither of which will resemble the state formerly known as the UK.
    Treaties between the former state and others will have to be revisited and in some cases renegotiated by the new states.
    This process should be straight forward for Scotland but may create difficulties for the other,especially with regard to continuing EU membership.
    I imagine that UKIP will see this as an opportunity to influence negotiations between London and the EU.
    The SG have tried to reassure Scottish voters that changes will be minimal and possibly not challenging a state continuing to be called the UK may be part of that strategy.
    At the end of the day,to quote a certain MP,”who cares”.

    1. “I imagine that UKIP will see this as an opportunity to influence negotiations between London and the EU.”

      A year or 18 months ago I suggested this to John Redwood a stanch UK statist, right wing idealogue, and a leading light of the anti-EU lobby/campaign, on his blog.

      I thought it would best serve the interests of his anti-EU position were he to be the first Tory MP to come out of the closet and actively campaign for the dissolution of the Union, and the resulting emergence of two successor states.

      Since both would be required to renegotiate the terms of their EU membership from WITHIN the EU, it would provide the ideal culture in which to grow wider opposition to the whole idea of membership in England and scuttle any accommodation being reached with Brussels. England would be out of the EU by default.

      After such a long time in the wilderness, this VERY capable man and former candidate for leader of his party, could once again have become a major player as defender of England in its hour of peril.

  10. Andy: “A flaw in this argument is that the Acts of Union of 1707 did not create a country called the United Kingdom. It created a country called Great Britain (Article 1). References to the united Kingdom (lower case) or United Kingdom (upper case) relate to, literally, the Kingdoms being united. ”

    And the substantive difference would be what, exactly? If memory serves in the Scottish parliament’s enabling act it specifically states that the “United Kingdom” is established (upper case “United”). If someone has a link to that perhaps they will post it (it would be dispositive).

    There are around 26 references to the UK in the Articles of Union and Article VII seems specifically to reference the “United Kingdom”. I am really not familiar with the conventions of the age to say that the intent was NOT to suggest the new state should be named the UK after 26 references to it in the Articles.

    If others are to accept you interpretation you will first have to convince HMG to get on board because it is clear that that authority firmly believes that the Treaty (Acts) of Union did indeed create the United Kingdom. Consider this from the official UK Government website dealing with this matter:

    “The Acts of Union, passed by the English and Scottish Parliaments in 1707, led to the creation of the United Kingdom of Great Britain on 1 May of that year. The UK Parliament met for the first time in October 1707.”

    That seems definitive to me.

    Andy: “The United Kingdom of Great Britain and Northern Ireland is literally that – a union between a country called GB and one (now) called Northern Ireland.”

    Demonstrably incorrect. It is the United Kingdom of Great Britain AND Northern Ireland.

    Northern Ireland is not in Great Britain. Northern Ireland is part of the British Isles. Northern Ireland is not a kingdom. I refer you to the the source document, Treaty of Union, for the legal and political definition of Great Britain.

    1. nordbreton says:

      The first rule of legal interpretation has not changed since the 18th century:

      “The first general maxim of interpretation is, that It is not allowable to interpret what has no need of interpretation. When a deed is worded in clear and precise terms, — when its meaning is evident, and leads to no absurd conclusion, — there can be no reason for refusing to admit the meaning which such deed naturally presents. To go elsewhere in search of conjectures, in order to restrict or extend it, is but an attempt to elude it. If this dangerous method be once admitted, there will be no deed which it will not render useless. However luminous each clause may be, — however clear and precise the terms in which the deed is couched, — all this will be of no avail, if it be allowed to go in quest of extraneous arguments, to prove that it is not to be understood in the sense which it naturally presents.”

      Emer de Vattel, The Law of Nations, Book 2, CHAP. XVII. OF THE INTERPRETATION OF TREATIES

    2. The substantive difference is that “dissolving” the Union established in 1707 does NOT dissolve the UK because the UK is now the one historic state called Great Britain created in 1707 merged with the remnant of another (Ireland). You cannot dissolve GB and, in any case, to dissolve a union normally requires the consent of both parties. England, Wales and NI are not having a referendum and thus if Scotland votes yes, it will be seceeding.

      1. Robert Louis says:

        Here is my thruppence worth in relation to all of this.

        There is a very important difference between what the 1707 treaty did, and what happened with the incorporation or inclusion of N.Ireland in the 1920’s.

        To understand, it needs to be remembered, that the treaty of union was an international treaty between two sovereign nations, Scotland and England(which at that time incorporated Wales, but was not referenced). It is this fact that the 1707 treaty is an international treaty between two sovereign nations, that makes it different to the incorporation of N.Ireland, or for that matter in the dim and distant past, Wales. You see, the incorporation of N.Ireland, was NOT an international treaty between two sovereign nations, it was merely by domestic act of Parliament under the auspices of English law, following Irish independence.

        So, in essence what you have, is what you might call the ‘original’ UK formed in 1707 by international treaty between two sovereign nations, ratified via an act of the Scots Parliament (1707) under Scots law, and an act of the English parliament(1706) under English law, followed much later by an act of that joint UK parliament to incorporate N.Ireland. That however, does not alter the fact that the United kingdom between Scotland and England (including Wales) exists only by virtue of the treaty of 1707. There has been no act to incorporate Scotland, such a thing never happened.

        What I am trying to explain here, is that a domestic act incorporating another territory into the UK does not make the original international treaty between England and Scotland null and void, and that somehow Scotland was magically incorporated into England.

        International treaties may be ended unilaterally by either party under the terms of the Vienna convention. To understand that, you just simply need to remember what an international treaty is – a simple agreement between two or more nations, no more, no less. It matters not one bit, if the terms of said treaty say things like ‘forever and ever’ or whatever, Sure, one party might not like it, if a treaty is ended unilaterally, but the reality is, International treaties are formed and ended all the time. For example, there is the anti nuclear proliferation treaty – which ANY of the signatories could leave whenever they wanted, without asking permission.

        Following Scottish independence (an effective ending of the union treaty), the United Kingdom (as currently exists) would cease to exist. Scotland becoming independent, would by definition, end the treaty of union of 1707.

        1. Could Robert further clarify the international legal position with reference to Ireland? There was a second Act of Union between Great Britain (now including Scotland) and Ireland in 1801. What is now termed Northern Ireland is what remains of that second union within the UK. Therefore, it would appear to me that there would still be a rUK, consisting of England (either incorporating Wales, but which could possibly now be recognised as separate unit within a union of England and Wales) and Northern Ireland.

  11. Bubs says:

    I agree that the Scottish government have been quiet on this point but as to their intentions after a Yes vote I think it’s laid out pretty clearly in Scotland’s Future, page 214:
    “After independence, Scotland will no longer be part of the
    current parliamentary union with the other nations of the UK
    which gives Westminster its authority over Scotland. The Acts of
    Union will be repealed as part of our transition to independence.
    That means the Scottish Parliament and Scottish Government
    will have responsibility for the full range of government activity
    in Scotland.”

  12. C M says:

    The legal evidence is clear in that it is not clear and any settlement must be negotiated.

    However I find it very difficult to envision any politically negotiated outcome which does not result in rUK being the continuing state.

    Following a Yes vote any negotiations which do lead to the rUK losing its current international legal personality will have to be put to the people of rUK to ratify, which is highly unlikely.

    The risk is then that the UK government in its duty to represent the whole population of the UK, is not in a position to offer the Scottish independence on mutually agreeable terms, should Scotland still become independent as a breakaway state, like Eritrea, it still is not able to retain any current legal status from the UK.

    So all of this legal discussion is largely moot.

  13. Brenda Steele says:

    If Scotland was extinguished at that point but not England – then it was not a union, it was a takeover. That makes the whole contract a farce – null and void.

    1. YES that’s what makes their argument quite dumb (for want of a better word) really. Were I HMG I’d ask for my money back from the esteemed and learned creators of this confection.

    2. bringiton says:

      All they have to do is drop the word United from their title but I suppose they would then be in competition with Fife for that right.

      1. How can it be looked on so as not to humiliate them? Not just the English, but also the non-nationalistic Welsh and Ulster Unionists? At one level that’s not our concern. They have to work out their own histories. At another level, if it is the case (and I am not seeking to judge the democratic weighting of that “if”) that they wish to remain a “United Kingdom” after a Scottish Yes vote, and to do so as one kingdom, a principality and a province, then they could sustain continuity of title (though not legal structure) by thinking of themselves as being “united” around the remaining kingdom in question. It all goes to show how these medieval constructs of state are no longer fit for purpose. Meanwhile, whatever the outcome of the vote – and I very much hope that it will be Yes – may we all continue to be United Kindred in the social but not political sense.

  14. Abulhaq says:

    A bee in my bonnet for some time. Why has the Scottish government not challenged this notion of EWNI as the continuator? The idea of the UK surviving after one of its founders has dissolved the Union is ludicrous and constitutionally challengeable. If EWNI were to continue to style itself UK after independence we would look pathetic saps. Especially as we are seemingly expected to pick up the tab for our share of British State debt. This is yet another manifestation of that blind-spot the regime has in our regard. Anti-Scottish Sentiment wrapped up in racist type arrogance and conceit. We have no culture, we talk funny, we dress in skirts, get drunk a lot, are overweight and always on the make and take…and are too dangerous to let out. Wiki has a page on the Anti-Scottish phenomenon. Well worth a visit. Goes back quite a long way too. Mu’ammar Gadhafi, when he was still the dashing liberator, said the English treated the Scots like Bedouin; by that he meant like shit.

  15. Whether the UK is the continuator state and Scotland a successor state will depend on the rules and politics of each organisation / country we’re dealing with. rUK won’t have a problem convincing NATO allies and its many creditors that it is a continuator state. However, we can expect the rUK to lose a vote on retaining the Security Council seat. As EU membership is a matter that requires universal agreement among member states, rUK may find it’s recent hostility to the European project results in a few countries holding out against rUK being an automatic continuator state without concessions on the opt-outs and rebate.

  16. madjockmcmad says:

    I have spent the last two years worrying this claim to death, research which I have tried to sum up in two articles on my Tarff Advertiser blog (Scottish Breakaway Dec 2013 / Wee Things Matter Jan 2014).

    In McCormack vs The Lord Advocate before Lord Cooper in 1953 the Lord Advocate conceded that under the articles of the Treaty the UK Parliament had no legal or constitutional role in any changes or alterations to the Treaty of Union. Changes and alterations could only be negotiated between the sovereign parliaments of the original signatories to the Treaty of Union. In the case of England and Wales this will require the recall of their sovereign parliament from its temporary suspension in late 1706. The Scottish Parliament having been recalled from its March 1707 temporary suspension in July 1999.

    In 1953 Lord Cooper made very clear that the argument for Scotland being subsumed by England on the signing of the Treaty of Union was a false premise as the Union pertained only to the original sovereign parliaments which both gave up their sovereignty to create the UK Parliament. There was no union of the realms or crowns which remained separate in all major legal and constitutional respects. Further Lord Cooper restated that the Treaty of Union protected the constitutional position of the people of Scotland’s considered will being paramount for all time and ‘all time’ meant exactly that. This was also conceded on the UK Parliament’s behalf by the Lord Advocate.

    Further Lord Cooper made clear as a result of the considered will of the people of Scotland being paramount the constitutional fudge at the heart of the UK ‘the crown in parliament’ was a solely English law and constitutional concept and had no equivalent in Scots Law and constitutional practice, this was also conceded on the UK Parliament’s behalf by the Lord Advocate.

    In other words the legal advice being waved around by the current UK Government on this issue is ‘ultra vires’ and is based on a longstanding misconception of the nature of the UK Parliamentary Union which itself is based on a false premise, first raised as ‘fact’ by Baggeshotte and others in the mid 19th Century.

    The UK Supreme Court is inclined to side with Lord Cooper on this matter as part of its reasons given for setting aside the AXA and Others case in 2012 was because the UK Supreme Court determined the UK Supreme Court had no power or authority to set aside a bill, act or statute of the Scottish Parliament which reflected the considered will of the people of Scotland.

    This leaves only one result in the case of a Yes vote – sovereignty returns to the two original signatory parliaments, as only they have the power to negotiate alterations and changes to the Treaty of Union. The UK Parliament is dissolved and the successor states are the two sovereign parliaments of the separate realms of Scotland at Holyrood and England and Wales (with NI) at Westminster.

    1. waynecuthbertson says:

      Madjock, I am afraid your understanding of the AXA case is completely wrong.

      Without going into immense detail the Supreme Court took the view that an act etc. of the Scottish parliament would fall within the supervisory jurisdiction of the Court of Session, and might, in exceptional cases, be amenable to judicial review (rather than simply being ultra vires and out with their competence as specified in the Scotland Act), The more interesting question which the Supreme Court passed over was whether they would ever entertain an argument that an Act of the UK parliament could be struck down by the court, although there are some hints (say for example the Conservative government attempted to abolish the right to judicial review) that the Supreme Court might entertain such a case where such an Act to fundamentally subvert the rule of law. However, the Scottish parliament not being a sovereign parliament, the issue did not arise. However, the judgements of both Lord Hope and Lord Reid are quite explicit that acts of the Scottish parliament can in exceptional cases be amenable to judicial review.

      I think the argument that independence would return Scotland to its pre-1707 state is absurd, and undesirable in any event.

      As always much of the argument here is really stuff for the coffee-shop, seminar room or student bar, with little real world significance. The intellectual attraction of Lord Cooper’s dictum was that it chimed with a sense amongst Scots that the Union had not completely extinguished our distinctiveness, that there might still be such a thing as “scottish constitutional law”, or rights of popular sovereignty which subsisted with, if not directly questioned, traditional assumptions about the anglocentric nature of the British constitution. This view was a lot more self-affirming than the more negative outlook of looking back and imagining the alternative direction that a Scotland which had not signed to the Union might have taken. In many ways Maccormick is over cited, because the corollary which Lord Cooper raises (well, who can stop them anyway?) has no answer and is just as true today. In this strict legal sense the Treaty of Union is irrelevant. What will matter is the mechanism which both governments choose to recognise the sovereignty of an independent Scotland. That will be a detailed agreement which will then be unanimously recognised by the international community.

      We need to move on from 1707. We no longer need to look for clever ways to subvert the will of parliament, or of the crown, or find comfort in the illusory protection of a three hundred year old treaty. We have the chance to create an entirely new constitutional order. Our past is important, just as our distinctive legal system is, but 18 September to me is entirely about our future. Tiresome debates about the Treaty of Union can be safely left behind. Our intellectual ingenuity is better directed elsewhere.

      I’d only add one contentious point, but I think it is something which needs to be stated more often. The very idea of the sovereignty of the Scottish people, in terms that it is often expressed as some overarching and continuous historical or legal norm stretching back to the Declaration of Arbroath, and finding modern resonance in Lord Cooper’s speech (not to mention the Claim of Right etc.) is quite frankly complete and utter historical drivel. The assertion runs contrary to almost all historical fact. Don’t get me wrong, I like the idea very much, but to believe in such a thing is not to embrace our past, it is to fundamentally subvert it. It is rose-tinted teleology of the crassest kind. However, what is clear is that on 18 September the Scottish people will be sovereign at least for one day, and I hope for many thereafter.

      1. Abulhaq says:

        Returning to 1707 status is impossible. However the UKGB came into existence as a result of an extant treaty. Westminster in its discourse prefers to ignore it or dismiss it as an irrelevance. The establishment holds the view that Scotland, incorrectly considered bankrupt, was constrained into union, in their view incorporated, with England. Scotland was extinguished as a state but England continued, albeit under a modified title, with Scots sitting in the continuing English parliament. Being perceived as the beggars we could not choose, in their august view, how England were to accommodate us. In reality the terms of the treaty were disregarded by England once union was effected; this later produced a desire among some in Scotland to withdraw from both the parliamentary and monarchical union. This perception of England’s supreme animating rôle in the unification process is the root of the notion of continuator with regard to any subsequent state consisting of England, Wales and Northern Ireland. This is a perception, however many English lawyers give it authority, that Westminster must be disabused of. We were ridden rough shod over centuries ago. There must be no repeat rough schmoozing.

  17. Chris says:

    It is assumed in this article that if Scotland votes yes that the treaty of union of 1707 will be dissolved and Scotland and England will re-emerge. I do not see this being the mechanism the will be negotiated following independence primarily due to the complication of Northern Ireland. Instead I think there will be a new act of the UK parliament giving independence to the part of the UK known as Scotland which just happens to be the same bit of land which once made up an independent country called Scotland. By this methodology the rUK can say that they are the continuing state and Scotland is a brand new state.

    I quite like the idea of being a brand new country- no debt, no Trident- a new constitution, removal of landed title etc.

  18. Chris says:

    It is assumed in this article that if Scotland votes yes that the treaty of union of 1707 will be dissolved and Scotland and England will re-emerge. I do not see this being the mechanism the will be negotiated following independence primarily due to the complication of Northern Ireland. Instead I think there will be a new act of the UK parliament giving independence to the part of the UK known as Scotland which just happens to be the same bit of land which once made up an independent country called Scotland. By this methodology the rUK can say that they are the continuing state and Scotland is a brand new state.

    I quite like the idea of being a brand new country- no debt, no Trident- a new constitution, removal of landed title etc.

  19. kininvie says:

    Christian: I much enjoyed that. The practicalities of modern statehood, however, pull in a different direction.

    What matters, crucially, is that Scotland achieves swift and universal recognition as an independent sovereign state. Only that can smoothe our path into the international community. Frankly, the other nations upon whom our recognition depends, are not going to give a toss about the Acts of 1707. They are going to assess the situation and their own interests as they exist in 2014.

    Any drawn-out wrangle vis a vis rUK about whether or not Scotland is a successor or continuator state is merely going to irritate everyone else, who will just want to get on with life. Since, as you point out, rUK has considerable interest in being deemed the continuator state, it’s worth a back of the enevelope risk-asessment to decide how much value talking tough about the Acts of Union has.

    Some, but not enough, would be my conclusion. In other words, the concession of continuator state to rUK is probably worth rUK’s reciprocal backing of Scotland into EU/NATO/UN/WTO/IMF etc etc. And don’t think we aren’t going to need that…there are all too many examples of states that are or have been cold-shouldered, and suffered for it.

    So you need to ask yourself whether the game is worth the candle. Suppose for an instant that we force the point, and (by some mechanism as yet unknown) end up with two successor states (as in the Czech/Slovak velvet divorce). What will we have achieved? We will have humiliated and alienated rUK, certainly alienated the US, probably decreased global security/stability sincewe shall have helped to create a vacuum where UK once was….and for what?

    Indeed – for what? What do we gain that we don’t gain as sole successor state – apart maybe from a bit of pride (which has no value in international relations)?

    That, I think is the question you need to answer before you accuse the Scottish government of making spineless concessions. I look forward to your counter-argument.

    1. setondene says:

      Kininvie, I agree entirely with your thesis.

      1. Abulhaq says:

        “we will have humiliated and alienated rUK, certainly alienated the US etc.”….. you are voting Yes? Seems to me a disconnect in the reasoning as that sounds like an argument for the status quo and that you might agree with Johann Lamont who uttered the following ” We are not genetically programmed in Scotland to make political decisions”. Independence means making “political decisions”, internal and external, making new international connexions regardless of how things used to be under mother UK. It’s tough being a modern sovereign and democratic state.

  20. MBC says:

    I think there are legal implications which cut both ways to the Act of Union being the foundational document of the United Kingdom of Great Britain, and that if we vote Yes, we are dissolving rather than seceding from the UK. I don’t want to mention them here because I’m keeping my powder dry. But it’s possible the SG has also considered this and that it might be more advantageous to maintain the view that it is secession.

  21. Gwyn says:

    I’m no lawyer (any more) but my brother is.

    When I raised this very argument with him he said that in International Law there is a convention of a Successor State which is defined as which instutution signed any agreements. In the case of Scotland, since 1707, this would be Westminster. But a convention is mearly that, not hard and fast.

    In addition I recently read something from a former EU lawyer who stated that in EU law there in no concept of Successor State. That is that both states (in this case) continue with their citizens as EU citizens as the EU has no method of taking away citizenship, other than if the rules have been broken. Scotland ending its “agreement” with England does not conravene the rules at present.

    It’s also worth mentioning than the 1536 and 1542 Acts of Incorporation or Union of Wales were repealed by the Welsh Language Act 1982. I was told about this at a public meeting with Ron Davies when he was still with the Labour Party. The Conservatives were upset. Nothing they can do about it now.

  22. donaldiainkerr says:

    Ace up sleeve. Do not let the cat out the bag too soon. SG and Scots not stupid and there’s 7 months to go. Rope a dope.

  23. williamforrie says:

    This is it for me the whole question which will be asked in the referendum is a false one “should Scotland be an independent country?” Answer: Scotland is an independent country in a political economic union with England! Therefore the question should be “should the 1707 Act of Union be dissolved” however such a question would require all of the UK population a vote.

    Given the question which will be asked flawed as it maybe, the resultant constitutional position immediately would be that the UK Parliament would be dissolved, by HM Queen Elizabeth II and a Scottish and English Parliament will be called. These bodies would then conduct the dissolution of the Union.

    I therefore give no credence to anything thus far heard from either side of the debate as nothing can be negotiated until the act of dissolution.

    As the population resident in Scotland who will ultimately cast their vote in September will set in motion a historic series of events for these islands.

    I urge all eligible voters to consider not the narrow interest normally reserved for general elections and decide their vote based on how they see the method of governance of the country of Scotland.

    Think on all

  24. Vous écrivez toujours des articles fascinants

  25. What a data of un-ambiguity and preserveness
    of valuable experience concerning unexpected emotions.

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