Most of the Act of Union would survive Scottish “independence”


Let me explain:

Should Scotland be an independent country? Well, yes, of course it should. All countries, surely, should be independent. Otherwise they’re provinces, not countries. But many countries, by choice, are not fully independent, for example if they’re member states of the European Union (or, as Ukrainians are so well aware, part of the Russian customs union or the former Comecon and Warsaw Pact).

To join the European Union, all 27 member states agreed to pool some of their sovereignty. So asking people in the EU if they’d like their country to be independent is really quite a silly question because, unless we leave the European Union, the European Economic Area and NATO we cannot, by the traditional 19th century definition, ever be truly independent. That, of course, is why the Liblabourtories in Westminster connived to exclude from the referendum the obvious, alternative question: “Would you like Scotland to have Home Rule, short of outright independence?” The reason for this, despite the Liberals’ current posturing on their “century of commitment to Home Rule”, is that they ken fine the answer would have been an overwhelming “Yes”, and a fatal blow to Westminster’s hegemony.

Drifting apart

1946A Cutting the cake 26 AugOne of my sons once told me my views were of no account because I was “born in the first half of the last century”. He was jesting, but it’s true: I was born in 1947, to a Shetland mother and a London father. The birth took place in a private (i.e. commercial) nursing home at 148 Banbury Road, Oxford, one year before the first National Health Service maternity units opened, marking the birth of the Welfare State. My parents’ native countries seem to have drifted rather a long way apart since their own union in 1946 (right), at a time of national consensus and optimism following Clement Attlee’s 1945 landslide election victory. Until I was 15 I lived in England, where, despite Labour’s defeat in 1951, successive Conservative governments made sure I got my free orange juice, cod liver oil, school milk, primary education, health care and dental treatment. In due course there was a full grant to cover all my tuition fees and maintenance when, like thousands of others whose parents could not have afforded it otherwise, I became the first person on the English side of the family ever to go to university.

Since my days with the Broad Left in Edinburgh University’s student politics, in the late 1960s, England and Scotland have become politically very different indeed. More and more English MPs (and not a few lads o’ pairts who took the high road to Westminster) have steadily undermined the Welfare State and the social democratic policies agreed during and immediately after the Second World War, while their Scottish counterparts mostly still embrace that postwar social contract, to which all British political parties subscribed until the late 1970s. That is the cause of the present incompatibility between my countries, and nowhere is it more evident than in social policy, where welfare benefit cuts are dignified with the label of “reform” when in fact they are changes for the worse.

So how did we get here from there? What happens if there really are grounds for divorce? I thought I’d better check what it actually said in the Act of Union, passed by the Scottish Parliament on 16th January 1707, and consider the consequences of repealing it. For repeal, I assumed, would have to happen if the people’s answer to the silly question on 18th September were “Yes” (as I very much hope it will be, but I’ve seen enough turkeys vote for Christmas in my time not to be optimistic).

Never a proper union

There’s been a union of the crowns for 401 years now and of parliaments for 307 years. But we never had the full union envisaged by some of those early 18th century enthusiasts for UKGB, on both sides of the border. Despite sharing a sovereign (due to Good Queen Bess’s lack of issue) and a parliament (due to corrupt voting by MacBigwigs and their rentatoadies in 1706-7 – see below), my two countries have remained separate to a surprising degree, not least in matters legal, educational and religious. Imagine if Scotland now had the same legal and educational systems as England, like Wales does. That’s exactly what some of the movers and shakers in the 1706 Scottish Parliament had in mind when they proposed a proper, “incorporating” union, with the same laws about everything except Presbyterianism in the Scots Kirk. What happened instead was a compromise, but still a heist.

unionReligious bigotry the true foundation

There were twenty five Articles in the treaty that came into force with the Act of Union, with an added condition “for secureing of the Protestant Religion and Presbyterian Church Government … expressly declared to be a fundamentall and essentiall Condition of the said Treaty or Union in all time coming”. So, perpetuating religious bigotry was the foundation stone of union with the inhabitants of our southern peninsula (I can find no mention of Wales or Ireland in the treaty or the act).

Reading through all 25 articles, I was surprised to discover that at least 15 of them could stay in place. Here’s why:

Article 1 would certainly have to be repealed because it says: “…the Two Kingdoms of Scotland and England, shall … forever after, be United into One Kingdom by the Name of GREAT BRITAIN…”

In the event of Scottish “independence” this would just confuse people. Article One, with a fine and proper sense of priorities, also has a helpful word about flags: “… the Ensigns Armorial of the said United Kingdom be such as Her Majesty shall think fit, and used in all Flags, Banners, Standards and Ensigns both at Sea and Land.” On my boat we’ve already repealed that part of the Act, because we fly the Scottish Red Ensign, with the saltire in the top left corner, and very pretty it is too, although there’s a unionist taxi driver on our pier who gets very indignant about this. I’d better not say who sells us the ensigns because they’d probably be done for sedition.

Article 2 will also have to go, because here we’re back to religious bigotry:

“That the Succession to the Monarchy of the United Kingdom of Great Britain and of the Dominions thereunto belonging after Her Most Sacred Majesty, and in default of Issue of Her Majesty be, remain and continue to the Most Excellent Princess Sophia Electoress and Dutchess Dowager of Hanover, and the Heirs of Her body, being Protestants, upon whom the Crown of England is settled by an Act of Parliament made in England in the twelfth year of the Reign of His late Majesty King William the Third entituled An Act for the further Limitation of the Crown and better securing the Rights and Liberties of the Subject.”

If you were a Catholic subject, it seems, your rights and liberties were somewhat curtailed in the early 18th century. And for a while after that, indeed. To make absolutely sure everyone understood exactly what the deal was, Article Two continued:

And that all Papists and persons marrying Papists, shall be excluded from and forever incapable to inherit possess or enjoy the Imperial Crown of Great Britain, and the Dominions thereunto belonging or any part thereof; And in every such case the Crown and Government shall from time to time descend to, and be enjoyed by such person being a Protestant as should have inherited and enjoyed the same, in case such Papists or person marrying a Papist was naturally dead, according to the provision for the Descent of the Crown of England…

To our disunited kingdoms’ shame, this bizarre, medieval prohibition on Catholics becoming head of state is still in force. To quote Her Majesty the Queen’s own website (1):

“Parliament, under the Bill of Rights (1689) and the Act of Settlement (1701) … laid down various conditions which the Sovereign must meet. A Roman Catholic is specifically excluded from succession to the throne; nor may the Sovereign marry a Roman Catholic.
“The Sovereign must, in addition, be in communion with the Church of England and must swear to preserve the established Church of England and the established Church of Scotland. The Sovereign must also promise to uphold the Protestant succession.”

To be fair, the Heid Yins now realise this situation is ridiculous, as the following exchange in the House of Lords in 2011 shows:

Lord Dubs: My Lords, does the Minister agree that, as a country, we oppose discrimination on grounds of gender or religion? It is curious, to say the least, that we allow such discrimination to continue in the succession to the Throne. Does he also agree that, given that there is a bar on Roman Catholics, it is odd that there is no bar against Jews, Muslims, Hindus or even atheists? Does he further agree that the matter is of some urgency? If His Royal Highness Prince William and his bride have children, it would be invidious to change the arrangements then. The time to do it is surely now.

Lord McNally: My Lords, I might agree with many of the propositions that the noble Lord has put forward, but as the previous Administration recognised, we are dealing with Acts of Parliament that govern not only us but a number of countries where the Queen is Head of State. For that reason, we have been proceeding with extreme caution.” (2)

One of the attractions of voting Yes is that the Scottish Parliament would have the power to end this absurd discrimination immediately, at least as far as the crown of Scotland is concerned. But I don’t get too excited about it because I can’t imagine any self-respecting Catholic wanting the job, and, besides, I’m a republican and would like to sell the entire Royal Family to Disneyland for a new Balmoral theme park.

Another attraction is that, presumably, and depending upon the gumption of those elected to the Scottish Parliament, a self-governing Scotland could curb the Royal Family’s medieval veto on legislation, another shameful blot on our unwritten constitution, recently highlighted by the media, even The Daily Telegraph.

Article 3, That the United Kingdom of Great Britain be Represented by one and the same Parliament, to be stiled the Parliament of Great Britain, is a simple anachronism if we say Yes and could be repealed without further debate, one hopes. Some Caledonian worthies, including a surprising number of superannuated Scottish Labour firebrands, might be left stranded in the House of Lords, but they would be England’s problem, not ours. We do not need, and would not have, a Hoose o’ Lairds.

The real breakers of Britain

With Article 4 there’s no need of repeal, because it simply states what’s already the case in the European Union, under various treaties to which Scotland would presumably wish to accede as a “successor state” to UKGB. The article says:

That the Subjects of the United Kingdom of Great Britain shall from and after the Union have full Freedom and Intercourse of Trade and Navigation to and from any port or place within the said United Kingdom and the Dominions and Plantations thereunto belonging. And that there be a Communication of all other Rights, Privileges and Advantages which do or may belong to the Subjects of either Kingdom except where it is otherwayes expressly agreed in these Articles.

This provision by now covers the various rights that citizens of Scotland have acquired by virtue of being citizens of the European Union. The EU is not all bad, after all, and these rights cannot easily be taken from us. Whether England would wish to remain in Europe with us is currently a moot point. The Anglo-xenophobes, if successful in their own independence referendum, might well take the opportunity of “the end of Britain” to make an early escape from what they see as the alien yoke of Brussels. Because, of course, if there were no longer a United Kingdom of Great Britain and Northern Ireland, the country that joined Europe in 1972 would no longer exist and both Scotland and the
rump GB, of England, Wales and Northern Ireland, would abecome “successor states” with the option to stay in or leave. In this regard, the real “breakers of Britain” are the Eurosceptic Tories, for it’s certain that Scotland, and probably Wales and Northern Ireland (even the Ulster Unionists), would reject leaving the EU and cutting themselves off from such a massive market and source of regional aid. Where would Mr Cameron’s belatedly beloved Union be then?

Article 5 takes us back to ships and flags, foreign ones. It ensured that Scottish ships would henceforth be treated as British, as long as none of the owners were foreign (then, as now, there were 64 shares in a ship and the owners were quite often a mix of nationalities). Given the current multi-national ownership of the merchant marine, I think Article Five may be described as obsolete, so let’s do away with it, whichever way we vote on 18th September.

A customs union – except for the Irish

Article 6 established a customs union between the two countries, something surely only the most vehement Braveheart separatist would wish to end, given that both are now in a customs union with most of Europe. So we should leave it be, apart from one long-abandoned clause forbidding the import of cereals from Ireland:

And in respect the Importation of Victual into Scotland from any place beyond Sea would prove a Discouragement to Tillage, Therefore that the Prohibition as now in force by the Law of Scotland against Importation of Victual from Ireland or any other place beyond Sea into Scotland, do after the Union remain in the same force as now it is until more proper and effectuall ways be provided by the Parliament of Great Britain for discouraging the Importation of the said Victual from beyond Sea.

Ireland was the prime target of that clause but it is clear that the Scots who signed the treaty had in mind to ban food imports from anywhere outside the new United Kingdom, to protect the landed interest and their dependants. This now seems excessively protectionist to us, until we consider the practical effects of the European Union’s import duties on food producers in what we euphemistically describe as the “developing” world.

It is noteworthy that only the Little Englanders and their propagandists are talking about customs posts at the border. They ignore the fact that we’ve had a customs union with Ireland since 1922.

Article 7 is about taxes on booze. They were to be the same on both sides of the border, with some minor exceptions to stop English brewers being taxed unfairly. Given that taxes on alcohol are such an important source of government revenue, and controlling its price is seen by most European countries as a lever for improving public health, we may not need to repeal this article, if the English will co-operate in targeting and taxing problem drinkers. Interestingly, it was the Government, not the brewers, who set the price of drink in 1707.

Too much salt

The immensely long Article 8 goes on and on (for almost 900 words) about salt. This is not surprising as, in the days before refrigeration, salting was the main way to preserve food and essential for fish exports and provisioning ships for long voyages. Domestic salt, produced by heating seawater in iron pans, using Scotland’s abundant coastal coal seams, was protected in the treaty from competition by cheaper salt evaporated by solar energy in the salt lagoons of France and the Iberian peninsula. The new salt laws included elaborate arrangements to prevent fraud, but the practical effect was to discourage and eventually forbid the import of salt in “foreign bottoms”. This was the final straw for the German Hansa merchants, whose ships were driven out of the Shetland salt fish trade by 1711, initiating an economic depression that afflicted the islands for half a century. On the brighter side, the extremely detailed salt clauses in the Act of Union also provided a nice little state subsidy on Scottish exports of salt herring, white fish, beef and pork. The idea of the Export Credit Guarantee Department is not new. Even so, we could probably repeal Article Eight on the grounds of anachronism.

Bring back the land tax

The Barnett Formula, which decides how much of UK taxation returns to Scotland, has been much criticised by both sides of the current argument. There were similar formulas in the Act of Union but the numbers were rather different from today’s. In 1707, under Article 9 of the treaty, impoverished Scotland was due to pay only £48,000 of the total tax raised in the newly united kingdoms. England’s share was £1.997 million. So Scotland picked up only 2.35% of the total UK tax bill. This sounds like a good deal, and who in Scotland would wish to repeal that?

It included a land tax, or ‘cess’, something accepted as normal in the 18th century but regarded with horror by the sado-monetarists in charge of our 21st century fiscal affairs. We might profitably re-introduce the cess, I think, as a corrective to the extraordinarily imbalanced land ownership pattern in Scotland, where the vast bulk of the country is owned by a tiny but very influential crew of billionaire rentiers (including the tobacco Willses, to whom I am not closely related, I hasten to assure readers).

The point of Article Nine as that it established a fiscal union, with the same taxes on both sides of the border. Taxes would probably be roughly the same in Scotland and England if Scotland became “independent”, but the UK Parliament has already agreed that the Scottish Parliament may vary some taxes, so the principle is not new. If the currency union remained, there would be obvious advantages in having similar fiscal regimes. So we could leave Article Nine in place.

There should be no enthusiasm for repealing Articles 10, 11, 12 and 13 either: these prevented the English from:

1. extending to Scotland their stamp duty on legal documents (but they did, anyway, and we’re still talking about doing away with it);
2. imposing their window tax north of the border (although it’s not stopped Westminster taxing the bedrooms of the poor, something the most reactionary 18th century lairds would surely have balked at);
3. taxing coal (and cinders!) as they did in England;
4. not even thinking about levying the hated tax on malt north of Hadrian’s Wall.
We would need to keep Article 14 as well: it bolstered the fiscal union by preventing the English from imposing upon the Scots any other arcane, southron taxes pre-dating the union. From 1707 onwards, fairness and equity would prevail in taxation. As the treaty put it:
… seeing that it cannot be supposed that the Parliament of Great Britain will ever lay any sorts of Burthens upon the United Kingdom, but what they shall find necessity at that time for the Preservation and Good of the whole, and with due regard to the Circumstances and Abilities of every part of the United Kingdom, Therefore it is agreed That there be no further Exemption insisted upon for any part of the United Kingdom, but that the consideration of any Exemption beyond that already agreed on in this Treaty, shall be left to the determination of the Parliament of Great Britain.
So everyone would be taxed at the same, UK, rate. This meant no return to punitive, medieval imposts such as the poll tax. Aye, right… Although at that time only lairds and some ministers and merchants had votes, the punters still had rights (the “liberties” referred to above) and no-one, in Scotland or England, would have dared do then what Thatcher attempted 282 years later. This is indeed a Treaty of Union sometimes more honoured in the breach, by the English.

The big bribe

With Article 15 the treaty got down to the serious business: big chunks of cash to bail out the Scots lairds and merchants who’d bankrupted themselves by investing in The African and Indian Company of Scotland. This was the first, only and wholly unsuccessful, attempt to build a Scottish Empire to rival the English and the Dutch. The so-called Darien Scheme on the Isthmus of Panama was a total disaster (partly because of sabotage by English agents) and a lot of important Scots with votes lost their shirts. In return for their support in passing the Act of Union, England would pay off the massive private and public debts resulting from this catastrophe. It was bribery and jobbery on a grand, British Aerospace scale, dressed up to look like altruism.

Then, as now, England was also massively in debt (largely due to pointless foreign wars), although, being a bigger and more prosperous country, was better able to meet the interest and capital repayments. The argument ran that Scotland shouldn’t have to pay for debts that England had incurred before the Union. Does this sound familiar? Now we’re told that Scots ought not to have to pay their share of the UK’s debts following secession from the Union, unless the First Lord of the Treasury agrees to continue the currency union.

What the negotiators of the treaty brought home to Edinburgh was a sack of money, containing £398,085 10s, to be exact, which they called the “Equivalent”. This was paid before the deal was sealed and it effectively sealed the remaining arguments in that miserable and fractious last session of the Scottish Parliament before the Union. As the folk song of a later time had it:

We’re bought and sold for English gold –
Such a parcel of rogues in a nation. (3)

The treaty was very specific about the uses of this slush fund. Firstly, it would compensate for any losses when the currency union kicked in and people changed their pounds Scots into pounds Sterling (4):

And as for the uses to which the said sum of £398,085 10s … are to be applied It is agreed That in the first place out of the foresaid sum what consideration shall be found necessary to be had for any Losses which privat persons may sustain by reducing the Coin of Scotland to the Standard and Value of the Coin of England may be made good.

Secondly, it would buy up all the bankrupt stock of The African and Indian Company of Scotland, in a sort of pilot scheme for quantitative easing and the state “rescue” of the Royal Bank of Scotland 301 years later:

In the next place That the Capital Stock or fund of the African and Indian Company of Scotland advanced together with the interest for the said Capital Stock after the rate of 5% per annum from the respective times of the payment thereof shall be payed; Upon payment of which Capital Stock and Interest It is agreed The said Company be dissolved and cease And also that from the time of passing the Act of Parliament in England for raising the said sum of £398,085 10s the said Company shall neither Trade nor Grant Licence to Trade.

Thus, in return for throwing in their lot with the burgeoning English (now British) Empire, the Scottish toffocracy turned a turkey into a nice little 5% p.a. earner after all, and were once more able to put claret on the table and silk and taffeta on their wives and daughters.

The deal, for them, was even better than that: for seven years after the Union there would be more Equivalents paid from Scotland’s increased revenue from customs duties and liquor taxes. Again the explanation was to avoid the Scots having to pay an unfair share of England’s debts. On top of that, there was a few grand for developing Scotland’s trade and industry, a precursor of the Highlands and Islands Development Board.

Scare stories

With bribes like these to be had, it’s hardly surprising that only principled (5) lairds like Andrew Fletcher of Saltoun held out to the end against the Union (6). Many others acquiesced with heavy hearts, sincerely believing they did so to save their country from the ruin so loudly and confidently predicted by pamphleteers such as Daniel Defoe, the English spy whose inventive scare stories rivalled those now being put about by Unionist papers like The Scotsman, the Aberdeen Press & Journal and that shameless rag, the Scottish Daily Mail. Other propagandists, far more entertaining than our own dour Alistair Darling, frightened Members of the Scottish Parliament with dire warnings that without the Union there would be religious civil war as Jacobites attempted to regain the crown (which happened anyway, as it turned out). It seems it was even easier to scare some of the people all of the time in the 18th century than it is now, and there are understandable reasons for this.
That being said, there seems little point now in repealing Article 15, as the stable door is swinging open and the old grey mare has well and truly bolted.

A currency union…

After several hundred words on the reasons for and uses of the big bribe, it took the MSPs of 1707 just 71 words to establish a currency union in Article 16:

That from and after the Union the Coin shall be of the same standard and value, throughout the United Kingdom, as now in England, And a Mint shall be continued in Scotland under the same Rules as the Mint in England And the present Officers of the Mint continued subject to such Regulations and Alterations as Her Majesty Her Heirs or Successors, or the Parliament of Great Britain shall think fit.

That was all. The currency union has now lasted 307 years and the Yes campaign has no proposals to end it. Someone else, does, of course, and for no discernible reason other than to intimidate and cajole. That is certainly a continuation of the style and spirit of the victorious side in the debates of 1706-7 but, given that a currency union could and should survive the transfer of other powers to a self-governing Scotland, Mr Osborne’s (not Mr Salmond’s, note) threat to destroy the currency union would actually appear to be (yet another) breach of the Act of Union by the Old Etonian side of the argument. “Share and share alike” is, of course, an alien concept to the British ruling class. They didn’t get where they are today by sharing.

Currency union or no, presumably the Scottish banks would continue to issue their own promisory notes – assuming they and their owners have not gone to the wall by 18th September – but the power to mint coins in Scotland should not be needed, hopefully. If it ever is, then Article 16 could come in handy and that’s another good reason not to repeal it.

A currency union cannot work, of course, without common weights and measures, and these were established by Article 17:

That from and after the Union the same Weights and Measures shall be used throughout the United Kingdom as are now Established in England; And Standards of Weights and Measures shall be kept by those Burroughs in Scotland, to whom the keeping the Standards of Weights and Measures now in use there does of speciall Right belong; All which Standards shall be sent down to such respective Burroughs from the Standards kept in the Exchequer at Westminster, subject nevertheless to such Regulations as the Parliament of Great Britain shall think fit.

This was very necessary and long overdue because inflation is nothing new. For hundreds of years before the Union, people on both sides of the border had been causing inflation by “clipping” coins and debasing the alloys of which they were made, in order to enrich themselves and cheat others. To complicate matters, in the absence of paper money foreign coins circulated freely in ports like Leith, Aberdeen, Kirkwall and Lerwick, where exchange rates were, literally, a matter of speculation.

Rascals messing about with the weights and measures made the situation even worse, particularly when rents, taxes and other imposts were paid in kind. In Shetland for example, the weight of a “lispund” of oatmeal was supposed to be 36 pounds “Amsterdam weight” in the 17th century. But the Scottish government and kirk, in the form of the rent farmers and tacksmen (often local lairds) appointed to collect rents, cess and teinds (tithes), deliberately caused inflation by tweaking the “bismers” (scales) used to weigh grains, butter and fish, and substituting marginally smaller cans for measuring the fish oil. So payments went up year by year, while notionally remaining the same in the ledgers.

The ending of this ancient racket was one of the main benefits of the Union, although it took many years for Shetland’s bigwigs to stop ripping off their tenants by adulterating the local weights and measures, which continued in unofficial use for a very long time. But there’s no need to repeal Article 17, as its provisions are now cemented in international as well as British law. A kilo is a kilo these days, for a mercy, even though the speculators still manipulate exchange rates to enrich themselves and impoverish the rest of us (to say nothing of Bitcoin, upon which the treaty is understandably silent).

…and a common market

With a currency union, a fiscal union, a customs union and standardized weights and measures, the next step was a free trade area. With Article 18, Scotland and England joined a common market for the first time:

That the Laws concerning Regulation of Trade, Customs, and such Excises, to which Scotland is by virtue of this Treaty to be liable, be the same in Scotland, from and after the Union as in England; and that all other Laws, in use within the Kingdom of Scotland do after the Union, and notwithstanding thereof, remain in the same force as before (except such as are contrary to or inconsistent with this Treaty) but alterable by the Parliament of Great Britain.

Repealing this would cause no end of trouble because we’re both now in the much larger common market of the European Union, in which Scotland, if not England, would no doubt wish to remain, as mentioned above. As with the currency union, there is no proposal to dissolve the free trade area currently enjoyed in the British Isles (Ireland included) so no need to repeal Article 18. Of course, if England decided to leave the EU, that would be a different matter, and another very clear breach of those parts of the Act of Union that would, legally, survive Scotland’s departure from the UK.
The second half of Article18 is of particular interest to m’learned friends at the Scottish bar, being one of the justifications of their continuing licence to fleece the rest of us:

… the Laws which concern publick right Policy and Civil Government may be made the same throughout the whole United Kingdom; but that no alteration be made in Laws which concern private Right, except for the evident utility of the subjects within Scotland.

A lawyers’ charter

This leads on to the main plank of the Scots lawyers’ charter, Article 19. Then as now, there were a great many lawyers in the Scottish Parliament, and it’s no surprise that Article 19 runs to over 700 words, a tenth of the total Act of Union text (although, admittedly, somewhat smaller than the section devoted to the all-important subject of salt):

That the Court of Session … do after the Union and notwithstanding thereof, remain in all time coming within Scotland as it is now constituted by the Laws of that Kingdom, and with the same Authority and Priviledges as before the Union; subject nevertheless to such Regulations for the better Administration of Justice as shall be made by the Parliament of Great Britain; … And that the Court of Justiciary [the High Court] do also after the Union, and notwithstanding thereof remain in all time coming within Scotland, as it is now constituted by the Laws of that Kingdom, and with the same Authority and Priviledges as before the Union;

In the incorporating union envisaged by some of Andrew Fletcher’s opponents in the Scottish Parliament of 1706, Scots Law would have ceased to exist.

Courts north of the border would have followed English procedure and used English terms. Only a cynic would suggest that this accounts for the high proportion of Scots lawyers said to be intending to vote Yes. But, to be serious, there are many advantages in having our own legal system and it is in some respects superior to the English which, until recently, had no public prosecutors (our procurators fiscal) and allowed totally untrained (and often ignorant and bigoted) people to sit as lay magistrates, with much greater powers than Scotland’s honorary sheriffs and our now extinct baillies (some of whom, to be fair, could also be described as reactionary misanthropes).
The Treaty negotiators also insisted that no Scottish cases could ever be heard in English courts, a clause since repealed by the creation of the UK Supreme Court, so we may need to re-establish a supreme court in Scotland, preferably one not composed of members of the House of Lords. I think we can leave Article 19 in place.

Remarkably, in an age when the law allowed large landowners to dispense sometimes idiosyncratic justice to their tenants and others, the Treaty of Union insisted that judges in the higher courts be properly trained and examined. This professionalism did not extend to lower courts (7), for Article 20 of the Act of Union ensured that hereditary sheriffs, mostly landowners and clan chiefs, would survive until Article 20 was repealed by the abolition of “heritable jurisdictions” in 1748 – a consequence of the purges after the Jacobite rebellion of 1745.

All but one of the remaining five articles are irrelevant anachronisms. Article 21 protects the rights of the Royal Burghs. These rights then had considerable economic significance but today are mainly symbolic and ceremonial. Repeal would cause unnecessary offence to local worthies and antiquaries, so let’s leave Article 21 in force.

The English drove a hard bargain with Article 22, which severely limited Scotland’s representation at Westminster:

… Of the Peers of Scotland at the time of the Union 16 shall be the number to Sit and Vote in the House of Lords, and 45 the number of the Representatives of Scotland in the House of Commons of the Parliament of Great Britain;

They were all to take oaths abjuring the “Pretender” (Bonnie Prince Charlie) and, of course, no “papists” were allowed. This clause has long been overtaken by events and serves only to remind us of the unequal nature of the treaty and, yet again, of the pervasive religious intolerance of the time. In the absence of universal suffrage, or any notion that the punters, even the Protestant punters, had any right at all to a say in the nation’s affairs, it was the best deal on offer. As most of the lords and MPs were for rent anyway, this paltry Scots delegation to London probably made no difference to the subsequent political history of the United Kingdom.

Just to rub it in, Article 23, although declaring the Scottish peers to have equal rights in the House of Lords, made clear who were the masters now:

…And that all Peers of Scotland, and their successors to their Honours and Dignities, shall from and after the Union be Peers of Great Britain, and have Rank and Precedency next and immediately after the Peers of the like orders and degrees in England at the time of the Union… [emphasis added]

What about the seals?

Article 24 deals (at some length) with the Great Seal and its keeper. No, nothing to do with royal pinnipeds and their feeding arrangements, but with those rings and things used to impress images on sealing wax, certifying that official documents were genuine. These were the 18th century equivalent of the passwords on modern computers’ virtual private networks, and a good deal more secure from the attentions of American and other spies. There would be a new seal for the United Kingdom but until it was designed and approved by Her Majesty, the Great Seal of England would be used … for Sealing Writs to Elect and Summon the Parliament of Great Britain and for sealing all Treaties with Forreign Princes and States, and all publick Acts Instruments and Orders of State which Concern the whole United Kingdom. The Great Seal of Scotland, on the other hand, would be used for purely domestic Scottish documents.

Although the Act was creating a union of parliaments, 104 years after the union of crowns, it provided for the Scottish Crown, Sceptre and Sword of State to stay in Scotland, along with the records of the Scottish Parliament and other public records. That was kind of them. But they kept the Stone of Scone for another couple of centuries.

Article 25 is one of the shortest:

That all Laws and Statutes in either Kingdom so far as they are contrary to, or inconsistent with the Terms of these Articles, or any of them, shall from and after the Union cease and become void, and shall be so declared to be by the respective Parliaments of the said Kingdoms.

Obviously, we’d have to repeal Article 25 (not least because it’s been repeatedly ignored by British governments), but it would appear from my brief survey of what the Treaty of Union actually said (as distinct from what romantic nationalists and choleric unionists imagine it said), that if Scotland votes Yes on 18th September it will only be strictly necessary for the UK Parliament formally to repeal 10 of the 25 Articles of Union.

The bits we need to keep

Antiquarian amusement apart, the serious part of this is that the articles establishing freedom of trade and navigation (Article 4), equal rights of citizens (also Article 4), a customs union (6), a fiscal union (Articles 9 & 14), a currency union (16) and a free trade area (18) would not require repeal.

No-one in the Yes campaign is suggesting we end these essential components of a friendly co-existence with the other countries who share the British archipelago. Nor is the SNP. The people who do say they’d abrogate these parts of the Treaty and Act of Union, if we dared to vote Yes, are the Tory-Liberal Coalition and their Labour and UKIP supporters. If they did so they’d be in breach of several European Union treaties as well as the Treaty of Union. But, like the English negotiators in 1706-7, so Anglocentric is their thinking that it’s not yet occurred to them that they might actually be the problem.

Some of the more right-wing, Anglonat members of the No campaign are, of course, entirely happy with the prospect of breaching EU treaties. They want to leave the European Union altogether. So, it would appear, does a large minority of English voters, if not, indeed, a majority. At the very least, it’s likely that, following Mr Cameron’s own promised referendum, the United Kingdom’s status in Europe will be diluted to that of Norway or Switzerland (with some residual benefits but no voice in decisions) – or even a Ukrainian or Turkish relationship with the Continent. That, and not Scottish Home Rule, really will cause “the end of Britain” that’s currently giving Alistair Darling sleepless afternoons.

So, let’s suck it and see: I’ll be voting Yes, not just to spoil his day but also in hopes of preserving the really useful bits of the Treaty of Union.



2 House of Commons Library, 2011. The Act of Settlement and the Protestant Succession
Standard Note: SN/PC/683; and Hansard Lords Debates 10 January 2011 c1169.

3 The lyrics are from a Robert Burns poem of 1791, published during agitation in Edinburgh and London for an extension of the parliamentary franchise. See Hector MacMillan’s book, Handful of Rogues – Thomas Muir’s Enemies of the People, Argyll Publishing, Glendaruel, 2005, ISBN 1902831896 for a superb account of this period.

4 At that time the pound Scots was worth 1/12th of the pound Sterling.

5 I use the word in its loosest sense: Fletcher is believed to have profited from the slave trade, his principles notwithstanding.

6 A fascinating description of the last session of the Scottish Parliament is in Paul Henderson Scott’s book, Andrew Fletcher and The Treaty of Union, published in 1992 by John Donald and the Saltire Society, Edinburgh. ISBN 0-85411-057-7. An eye-witness account, albeit a drier and self-serving one, is Sir John Clerk of Penicuik’s History of the Union of Scotland and England, republished in 1993 by The Scottish History Society and Pillans & Wilson Ltd., Edinburgh. ISBN 0-90645-15-x.

7 Well into the 20th century Scotland’s Baillie Courts, dealing with minor offences not requiring the attention of a sheriff, usually had totally unqualified people sitting on the bench. One of my first jobs as a trainee reporter was to attend the Baillie Court in Lerwick on a Monday morning, dealing with the weekend’s hangovers from the police cells. On one occasion the Baillie, a town councilor, found a notorious drunk guilty of starting a punch-up outside the British Legion the previous Saturday night. My news editor, walking along the street with the Baillie after the hearing, cautiously remarked that the evidence in court had seemed a bit thin, if not, indeed, contradictory. “Aye, it wis,” replied the Baillie, “But I wis ootside da Legion mesel’, an’ I saw it aa’!”

Comments (22)

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  1. Religious bigotry is, of course, a terrible thing, but it’s historically inept to ignore the very real political core of the ban of Catholics as regards the monarch in the 18th century. The outrage is that such a ban is still in place, but I doubt that could be removed without the disestablishment of the Church of England.

  2. Alasdair Frew-Bell says:

    i fail to understand what this musing on the union treaty is about. must indeed be a generation thing as i see nothing worth preserving in the old insular dispensation. a scots republic, should our people’s democracy opt for one, signifies a cleansing of the stable. the best place for that shabby treaty, worthless, we are informed by the westminster pundits, is on a bomb-fire of unionism’s imperialist pretensions.

  3. Dan Huil says:

    An interesting article giving more proof [if more were needed] of the fundamental unfairness and imbalance of the incorporating union between Scotland and England.
    The only reason the union lasted for so long was the British empire, founded on the exploitation [by Scots,Welsh,Irish and English] of millions of innocent people around the world.

  4. John S Warren says:

    Delightful article! I wonder if Mr Wills would care to comment on the unintended consequence of the ‘equivalent’: The Royal Bank of Scotland, the direct descendant of the Equivalent in 1727. The reason for this was because over 50% of the Equivalent was paid in 5% Debentures rather than in cash.

    The Equivalent was the seed capital of RBS and its Directors represented the Debenture holders. The word ‘Equivalent’ was originally going to appear in the name, but when incorporated finally in 1727 (the Bank of Scotland had a monopoly until 1716) it became RBS.

    Should RBS be allowed to continue in Scotland, as it is, or sent to London? It is after all already a City of London institution (root and branch) in all but name, a product not really of the Credit Crunch disaster, but at root, of Big Bang in 1986. Now there is a very interesting story to be told of the City of London’s effective destruction of Scottish Banking and not least, Scotland’s great banking culture, with the adoption of the City culture throughout the British financial sector in the footsteps of big Bang. Ther rest, as they say, is History (and was inevitable).

    1. Fascinating! Thank you. I didn’t know that. I do know where I’d send the RBS, though, and it’s somewhere much hotter than London.

  5. setondene says:

    I seem to remember Jonathan from my (admittedly far off) days in Shetland as a kind of Liberal. Is this exposition in any way connected to the Lib-Dems?

    1. No, alas, your memory is faulty, although it’s nice to be remembered. I was Labour candidate for Orkney & Shetland in 1974 (twice, and it was Jo Grimond who was the Liberal) and again for Labour in Shetland in 1999. I let my Labour Party membership lapse in 2001 (call me a slow learner if you like) and am now in general an SNP supporter, although not currently a member of any party and sitting as an Independent on Shetland Islands Council. I will admit to voting for my friend Alistair Carmichael in 2010, on the grounds of his excellent record as a human rights campaigner and a constituency casework MP, but will not be making that mistake again, following his acceptance of office in this reactionary coalition. And I may as well admit now to being a member of the Truro Young Liberals for about six months in 1966, but it was a mistake, as was my three-week-long membership of the International Socialists in 1971 (they expelled me, I am proud to say, for right wing deviationism). Life is a learning curve…

      1. setondene says:

        Nice to speak to you again as it were, Jonathon, after all these years!

  6. waynecuthbertson says:

    I admire the effort here and enjoyed reading this article, but whilst this is an interesting avenue of thought, it is fundamentally misconceived.

    I could proffer any number of reasons, but for sake of brevity I will restrict myself to just a few short comments.

    Firstly, Scotland’s highest operative law post-independence will be its constitution. One of the fundamental inviolate principles of constitutions is that they are not subject to any other law. What I mean by this is that Scotland’s fundamental legal order will be recast to such an extent that the treaty of union and its associated acts will to all intents and purposes become redundant, or to re-employ a distinctive Scottish term, fall into deseutude.

    Quite apart from that there is the obvious point that you are trying to advocate the continuance of a treaty which established a new state in a situation where that state ceases to exist. In my view with independence the treaty is gone forever,and I for one will not miss it. The idea that Scotland would revert to its pre-1707 state is ludicrous, and when you actually think through the consequences, pretty undesirable.

    The whole point of independence is not to renegotiate the terms of Union, but to abrogate the Union completely, and thereafter as a completely new and independent state to create our constitution and forge international obligations. That is the future I am voting for. 1707 needs to be left with the historians.

    1. Michael Granados says:

      I think you are missing the point a bit. What the author is arguing is not a renegotiation for the Act of Union but to acknowledge that the legal vehicle for independence is in fact the repeal of the Act of Union. It is a Law and doesn’t disappear just because it is old or inconvenient. Scotland doesn’t have a written constitution so couldn’t possibly be a highest operative law until it is adopted. I live in hope that the Scottish Parliament as it’s first act after the referendum convenes a constitutional convention.

    2. Jonathan Wills says:

      Er, I was trying to be ironic, to show the funny and contradictory side of repealing the Act of Union. Of course we’ll need a new constitution (as will rUK). I didn’t say we wouldn’t. As long as it doesn’t contain 900 words about salt!

  7. Big Jock says:

    1707 was a farce.There was democratic mandate.The treaty should be consigned to the dustbin and the anti catholic royals with it.I want a republican Scotland where state inherited titles are over.Time the leeches were made to work!

  8. Robert Peffers says:

    Re: your claim that – “There’s been a union of the crowns for 401 years now”, is plainly wrong. In 1603 the two, still independent crowns, rested upon the same person’s head. They were most certainly not united, though. After reading the text of, “The Treaty of Union”, I’m surprised you arrived at such an obviously wrong conclusion. In 1603 the Scottish monarch of the independent Kingdom of Scotland inherited the crown of the three country Kingdom of England. Which Kingdom of England had annexed, (not united with), the Princedom of Wales by, “The Statute of Rhuddlan, (1284). It also annexed the Kingdom of Ireland by, “The Crown of Ireland Act”, (in 1542). Thus the same monarch was head of two independent Kingdoms until 1688. At that point the English Kingdom’s, “Glorious Revolution”, deposed the as the English monarchy, the direct Stewart line. England, (Kingdom of), then imported William, (of Orange), and Mary as joint monarchs and attempted to impose them upon the still independent Scottish Kingdom. In doing so the independent Parliament of the Kingdom of England also removed the Royal veto from the monarchy of England and thus made that three country Kingdom a, “Constitutional Monarchy”. Not however Scotland. Which still today has a King/Queen of Scots as distinct from, “of Scotland”. The people of Scotland are legally sovereign. Thus in 1688, as the Scottish Kingdom was still independent, did NOT depose the Scottish Monarchy. Thus began what the English still refer to today as, “The Jacobite Rebellion”, (1688 – 1745). However, you cannot rebel against a monarchy that is not your own – it is correctly a, “Jacobite Uprising”. So from 1603 until 1707 we had NO UNION OF THE CROWNS. Hence, ‘Article I’, of the treaty which only unites the two Kingdoms as “The United Kingdom of Great Britain”, but with no signatures of either the Princedom of Wales nor the Kingdom of Ireland as these were just part of the Kingdom of England. This is all clearly born out by, ‘Article III’, which plainly states this, “Article III. That the united kingdom of Great Britain be represented by one and the same parliament to be stiled The Parliament of Great Britain”. It is perfectly clear that article one united the Kingdoms, article two deals only with accession & succession and article three then unites, the just united Kingdoms, parliaments as a NEW – not a continuation of either- parliament. That means the Union today is still a bipartite union of kingdoms – not an, unelected as such, quadratic union of countries. Which is what Westminster has now decides itself to be. Now when a bipartite union disunites there can be no continuation parliament, (rUK or otherwise). The SQA, (Status Quo Ante), of the bipartite union disuniting is a return to two independent states. In fact, as neither former kingdom is proposing to become a republic the actual United Kingdom, (Royal Realm), remains very much intact, ss per, ‘Article I’, while the United Kingdom Parliament, as per, “Article III’, disunites. Go study the actual Treaty again, my friend, for you will find I am correct. However, a nice, “Article ON Union”.

    1. Jonathan Wills says:

      I stand gratefully corrected, and in some awe of such erudition! But to most folk the “union of the crowns” that we learned about in school is just that, although I did know the people are sovereign in Scotland. I think Gordon Donaldson reminded me of that, long ago. He would not have agreed with the Jacobite interpretation, I suspect, but of course the two kingdoms were never really united, despite sharing a monarch; it was the parliaments that united, or at least agreed to set up a new British parliament.
      Between now and September we need to explain the actual constitutional position, because people are confused, not surprisingly!
      It’s the Welsh I feel sorry for. But at least they and my English relatives can look forward to a new, more democratic, constitution if Scotland votes Yes. They might even get a constitutional monarchy along Scandinavian lines, which would be beneficial; and a fair voting system: and an elected second chamber: the possibilities are enticing…

      1. An interesting conclusion.
        The Royal Realm remains intact since neither side has declared the intention of being a Republic. That is, getting rid of the monarchy. Well the people of Scotland have yet to decide on a republic or not. (In the event of a yes majority).
        So if indeed a Republic is the preferred option, Article 1 and Article 3 are repealed And the bipartisan union reverts to the two previous states. England still has A Monarch and The Republic of Scotland does not. Ergo, England would have to apply for EU and NATO membership and there would be no rUK.
        Interesting times ahead. But I will be voting for the Haggis Republic of Scotland 🙂

  9. Ivan Coghill says:

    Please find out more information about the author’s socialism and activities as a trustee of Shetland Arts Trust, incorporating the Shetland Museum:

    1. Jonathan Wills says:

      Do I detect a slightly hostile attempt at sarcasm from Mr Coghill? Best to check his facts: Hays Dock Cafe is not subsidised by public funds. And the Shetland Museum is not “incorporated” with the Shetland Arts Trust. it has nothing to do with Shetland Arts Development Agency (Shetland Arts Trust ceased to exist some time ago). The museum is part funded by the Shetland Charitable Trust (of which I admit to being vice-chairman). It is run by Shetland Amenity Trust, an independent trust of which I am also a trustee (the charge sheet lengthens). The museum is operated under an agreement with Shetland Islands Council (I ask for my election as a councillor also to be taken into consideration when passing sentence). There you are, now: a nice little conspiracy to keep Mr Coghill happily grumping all weekend, and no doubt feeling more virtuously socialist than the rest of us.
      Have a nice one!

      1. Jonathan Wills says:

        Oh, and I am not and never was a trustee of the Shetland Arts Trust or Shetland Arts Development Agency. But let’s not allow a mere fact to spoil a tale…

      2. Ivan Coghill says:

        Yes, please not. Let us split hairs over your membership of The Amenity Trust etc. … Pity you could never reply on Hays Dock Cafe Customer Feedback. You have had time to reflect now, I hope.

  10. Jos says:

    Hi Jonathan. I come from a totally different political tradition to you (one of those apparently non-existent Scottish Tories). I stumbled across this after going to see Independence discussed at the Cambridge Union last night. Much of what the pro-independence camp had to say last night fitted the narrative you have here. 1. Scotland has a different political culture to England, and it has got wider since the 1970s. 2. Therefore the British Parliment does not represent Scotland. 3. But if Scotland were independent it would keep most aspects of Britishness. I have major problems understanding this. I don’t actually think that Scottish and UK political cuture is vastly different, people and regions sometimes get politicians they did not vote for; that obviously does not make the politicians illegitimate.

    How can Scottish Nationalists unilaterally declare they will keep all the bits of Britain they like? If it’s not in the interest of the rest of the UK it will not happen. The clear solution to keeping all of the bits you like about the Act of Union is to vote against independence and agree consensual reform of the constitution within the UK. As an aside there was also some really nasty us and them language on display from the nationalists which I thought was extremely worrying for a post independence future. At the final analysis I cannot see how walking out of a successful country of 60m people to become a small nation of 5m is in anyway beneficial. I think it’s a cop out of taking responsibility.

  11. S M Wilkie says:

    Good article – however I notice with regard to investment in the Darien Scheme, that you refer to the ( Lairds only ) when in fact The Company of Scotland for Trading to Africa raised £400,000 sterling in a few weeks (equivalent to roughly £47 million today), with investments from every level of society, and totalling about a fifth of the wealth of Scotland.[7][8] It was, for Scotland, a massive amount of capital

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