INTRODUCTION: THE SYNONYMY OF ENGLAND AND THE UNITED KINGDOM
As a nation, Scotland is gifted with majestic mountains and lochs, alluring islands and vibrant cities. It’s a land of ancient castles and modern infrastructure, with a proud history and a rich culture. In a survey conducted by Rough Guides, a leading travel company, Scotland was voted the world's most beautiful country in 2017.
Yet for all this, Scotland is nowhere near as well-known as it should be. Scotland may be a beautiful nation; it may be a culturally rich and vibrant nation; yet it is not an independent nation. And the everyday reality of this means this it does not have the same level of international identity that far smaller independent nations enjoy.
As a part of the United Kingdom, Scotland lives in the shadow of its larger neighbour, England. And this situation is further compounded by the fact that England and the United Kingdom are, to the world at large, largely synonymous. Because of this, international recognition of England, as a name and a brand, remains strong.
The same cannot be said for Scotland, however. A traveller from Scotland will, time and time again, find him or herself having to explain to all and sundry both what Scotland is, and how it differs from England.
So why are things this way? Why, after three centuries of Union, does England continue to be widely known internationally, whereas Scotland is not? After all, England is a part of the United Kingdom, just as Scotland is.
The roots of this situation are twofold. Firstly, there’s the population imbalance. With a population of 56.2 million, England currently has over 10 times the number of people that Scotland has [1]. It was not always thus. Indeed, at the time of Union, England had a population of just over 5 million people - only five times that of Scotland [2]. Comparing similarly-sized European countries such as Denmark (5.7m) and Norway (5.3m), both had populations lower than that of Scotland at the time of Union [3]. Certainly, in population terms at least, the Union has not benefitted Scotland.
Secondly, we need to acknowledge the reality that “Great Britain” was never truly designed to be a separate and distinct entity from England. The Kingdom of Great Britain was, at its core, an English state. Likewise, its subsequent incarnations (namely the United Kingdom of Great Britain & Ireland and the United Kingdom of Great Britain & Northern Ireland) remained in essence little more than rebranded English states.
Take, for example, the Houses of Parliament and their historic traditions. Article 3 of the Treaty of Union specified that the Union would be “represented by one and the same Parliament” [4]. It did not state that Scotland’s Parliament be abolished. Nor did it state that England’s parliament could simply continue on as if nothing had happened. In reality, however, that is fundamentally what happened. The Westminster Parliament that you see today is essentially the same parliament that started life in 1295, over 400 years before the Treaty of Union, with its historic traditions and procedures dating from long before 1707 [5]. For example, the tradition that each sitting of the house begins with prayers can be traced back as long ago as 1558 [6]. Or, alternatively, there's the position of “Black Rod”, the usher who summons the House of Commons to the State opening of Parliament. This post dates from as far back as 1522, with the office itself dating back to 1350 [7].
When the “new” parliament came into being in May 1707, with the addition of Scottish MPs, it was not even considered necessary to hold a new general election. This was despite the fact that the electoral map of Scotland had been substantially redrawn. Furthermore, although Scotland had a population that was 20% the size of England’s, it was only awarded 45 MPs compared with England’s 513 MPs. Cornwall alone had no less than 44 MPs [8] [9]. And the situation was no better in the House of Lords, where Scotland was awarded just 16 seats compared with England’s 196 [9]. Essentially, there were so few Scots in Westminster that they were barely noticeable. England’s parliament simply continued on as if little had changed [40].
International treaties that had been concluded by England prior to the Union were considered to remain binding, whereas those signed by Scotland were not. The Anglo-Portuguese Treaty of 1373, for example, is still in force today and is in fact the oldest active treaty in the world [10]. And, whilst the Treaty of Union did call for a new Great Seal of Great Britain to be created to replace that of Scotland and England, it specified that England’s seal should be used until such time as a new seal was created [4]. Moreover, it’s also worth noting that even to this day, the UK’s international agreements with other states are prefixed ‘Anglo’ [11].
Under the Treaty of Union it was specified that Scotland would harmonise with England, and not vice-versa. Consequently, Scotland had to adopt England’s laws in a whole raft of areas including the Regulation of Trade, Customs & Excises, Coinage, and Weights and Measures [4]. In 1953, the case of MacCormick v. Lord Advocate came before the Court of Session. The case was brought to court to determine whether Queen Elizabeth II was entitled to use the numeral "II" in Scotland (as there had never been an earlier Elizabeth reigning in Scotland). During the hearing, where a number of constitutional issues came to the fore with regard to Scotland’s place within the United Kingdom, Lord President Cooper stated the following:
“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.” [18]
The reality of this newly created state, “Great Britain”, meant little in England. Its capital city continued to be the hub of political and economic decisions and, furthermore, it remained the home of its head of state. Yet, with Scotland having abolished its parliament, the city of Edinburgh - the capital city of one of the world’s oldest nations - was reduced to little more than a provincial city. Great Britain was not so much a new state as it was the continuance of the English state with a nameplate change.
In the House of Commons in 1889, Dr Gavin Clark, Liberal MP for Caithness, noted the following during his motion calling for Scottish Home Rule:
“An attempt is made here to ignore Scotch nationality. We hear of the English Government, and the Minister is not called to order for the expression. Why, only the other day the Secretary for War spoke of the English troops he was sending to Egypt - the Scottish Borderers. I notice the honourable Member for East Renfrew has an Amendment to my Resolution. I saw a report of a speech made last year to his constituents; and in that speech he speaks of Scotch Members feeling insulted by the way their nationality is ignored or treated with contempt. I only wish he would call some of his leaders to order when they so insult his nationality”. [12]
As the old French expression goes, plus ça change, plus c'est la même chose.
THE IMBALANCE OF POWER WITHIN THE UK
Complaints from people in Scotland about the English-dominated nature of the British state have persisted since its inception, and in that regard it may seem that little has changed in three centuries. Yet, in reality a lot has actually changed since 1707. There are now parliaments in both Scotland and Wales, and an assembly in Northern Ireland (which, despite only being called an assembly, actually has significantly more powers than Scotland and Wales). Yet devolution also serves to highlight that the UK is a faux union. There is no reciprocal English parliament, save that of Westminster. Nor is there a secretary of state for England in the same way that there are secretaries of state for Scotland, Wales and Northern Ireland.
There are clearly some very glaring inequities within the Union, but not just between England and the devolved nations. There are also inequalities amongst the devolved nations themselves. Of the three devolved administrations, Northern Ireland’s is the most powerful. Indeed, Northern Ireland’s devolution settlement is more akin to home rule, owing mainly to the fact that it previously had home rule between 1920 and 1972. Northern Ireland also has its own civil service and, importantly, the legal right to choose its own constitutional destiny enshrined in an international treaty. The Belfast Agreement states that, if at any time it appears likely that there is support to leave the United Kingdom, a referendum may be held. And if the vote is not in favour of doing so, another referendum can be held seven years later [13].
Contrast this with Scotland. When it’s not being ignored or ridiculed as regards its right to hold a referendum, it is simply dismissed with remarks like “now is not the time”. Furthermore, Scotland’s devolution settlement is a considerably narrower and shallower affair than that of Northern Ireland. It lacks a civil service of its own, and has only about one third of the powers that Northern Ireland has [14].
The devolution settlement in Wales is largely comparable
with that of Scotland. Initially Wales lacked many of the powers that Scotland
had, yet it has since gained considerably more autonomy to the extent where,
with the exception of a few matters in the area of Home Affairs, its powers are
identical to that of Scotland [14]. Certainly, Wales does not currently
constitute a jurisdiction like Scotland and Northern Ireland both do, yet that
is largely due to the historical fact that it was never in a union with
England, but rather had been merged with England. For now, Wales remains part
of the jurisdiction of “England and Wales”. How sustainable this will be in the
long term remains to be seen.
And then there is England - a nation whose constitutional position is an entirely different affair when compared with Scotland, Wales and Northern Ireland. A casual observer may conclude that, without its own parliament, it had been somewhat short-changed. Yet that ignores the fact that England doesn’t need a parliament separate from Westminster. Westminster, or more accurately, the Palace of Westminster, is its parliament – it always has been. Having existed for over 700 years, it has thus spent less than half of its existence as the Parliament of the United Kingdom. And, with 86% of MPs in Westminster being English MPs, what England wants, England usually gets.
On closer inspection, England appears to be something of a colonising nation, with Scotland, Wales and Northern Ireland being its colonies. Yet, if the UK is not what it purports to be - that if rather than being a Union, it is in practice essentially little more than Greater England - then this is potentially something that Scotland can take advantage of constitutionally.
THE UK CONSTITUTION & THE NOTION OF PARLIAMENTARY SOVEREIGNTY
When examining the constitutional nature of the UK, the first thing that needs to be understood is that the United Kingdom has no constitution - at least not in the sense of having a specific codified document. Certainly, there are a loose collection of statutes, laws and precedents that are claimed by constitutional experts to amount to a constitution in lieu of an actual specific document. Yet the fact that there is no clearly defined, codified constitution is especially important when defining constitutional matters.
Take, for example, the issue of sovereignty. Because there is no written constitution, there is no specific document detailing where sovereignty lies within the United Kingdom. Of course, given that the UK constitution is claimed to be defined by its laws and statutes, one would naturally assume that the parameters of sovereignty would have been established by the laws and statutes published by Westminster. Yet when you search for the term ‘sovereignty’ in the records of the national archives (http://www.legislation.gov.uk/) under the parameter All UK Legislation (excluding originating from the EU), the only listed results relate to three acts from the pre-1707 Scottish parliament.
The simple fact is that there is no act of the Westminster parliament relating to the matter of sovereignty – a fact that becomes even more astonishing when you change the parameter and search for the term ‘sovereignty’ in UK legislation that originated from the EU. When this parameter is applied, you get over 180 results [15].
Constitution experts will of course assert that sovereignty in the UK is said neither to be defined in terms of laws or statutes, nor in terms of the constitution, but rather by legal precedence and the notion that “Parliamentary Sovereignty” holds sway.
And indeed, when you search the records of the Supreme Court, there are numerous references and rulings with regard to sovereignty [16]. In one such judgment by the Supreme court on The UK Withdrawal From The European Union (Legal Continuity) (Scotland) Bill, sovereignty is referred to no less than eleven times. Looking at one example, it refers to Section 28 of the Scotland Act (1998) and states:
“That notwithstanding the conferral of legislative authority on the Scottish Parliament, the UK parliament remains sovereign” [17].
There are two key factors to take into account here. Firstly, and importantly, sovereignty is not actually mentioned in the Scotland Act. Certainly, it does state that the Act “does not affect the power of the Parliament of the United Kingdom to make laws for Scotland” [17]. Yet this is it is vague and potentially open to interpretation. Secondly, the Scotland Act was created by the UK parliament, the very body with which may not actually be sovereign - at least in relation to Scotland.
Indeed, questions have previously been raised in courts as to whether the notion of Westminster’s parliamentary sovereignty is actually valid in a British context. For example, in the aforementioned case of MacCormick v. Lord Advocate, the Lord President (Lord Cooper) stated that "the principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish Constitutional Law". Moreover, it was stated that legislation contrary to the Act of Union would not necessarily be regarded as constitutionally valid [18].
In some respects, the issue of sovereignty in Scotland has become something of a vicious circle. Firstly, Westminster acts as sovereign body, and creates a Scottish Parliament and electoral system in such a way as to ensure that the London Parliament is the superior body, and Edinburgh is its subordinate. Then Westminster creates the Supreme Court to its own specifications. The Supreme Court in turn rules that - due to a previous Act passed by of the Westminster parliament - Westminster is the sovereign legislator of Scotland. Therefore, in the eyes of the law, Westminster becomes sovereign through precedence.
It would appear that the UK parliament has, in the absence of any clearly defined parameters of sovereignty, simply asserted itself as such through precedence – precedence it set itself. Yet, if this is the case, then why can’t the Scottish Parliament similarly set its own precedents by acting in a sovereign manner?
In 1988 a document called A Claim of Right for Scotland was produced by the Campaign for a Scottish Assembly (CSA). The document was a seminal milestone in a movement that would culminate in the creation of Scottish Parliament in 1999. Taking its title from the Claim of Right Act in 1689 that limited the power of the monarch in Scotland, it stated “the sovereign right of the Scottish people to determine the form of Government best suited to their needs” [19].
The document was signed on 30th March 1989 by all of Scotland’s then-serving Liberal Democrat MPs and all Labour MPs (bar one). It included the signatures of a future Prime Minister, Gordon Brown, a future chancellor of the exchequer, Alastair Daring, and two leaders of the Liberal Democrats, namely Charles Kennedy and Menzies Campbell [20].
And, whilst Conservative MPs didn’t sign it because they were firmly against Scotland having any degree of autonomy, perhaps more noteworthy is the fact that the Scottish National Party also didn’t sign it. The reason for this was that whilst the Claim stated that the Scottish people had the sovereign right to choose their own form of government (and their own assembly or parliament), it would, however, only be ‘within the framework of the United Kingdom government’. Independence as a constitutional option had been rejected by the CSA [21]. Thus, whilst the Claim asserted the sovereign right of Scotland to choose its own form of government, it was under the somewhat contradictory precondition that the government itself wouldn’t be sovereign.
At that time, Scotland was a predominantly Unionist-voting country, with the SNP being only the fourth most popular party. As such, the CSA was a product of the political landscape at that time. Yet over three decades have now passed since the Claim was signed, and both the political landscape and the public mood have been completely transformed in Scotland. Subsequently, the notion that Scotland should have the sovereign right to choose its own government, but not a sovereign government in itself, now seems completely out of touch with the modern-day Scottish political zeitgeist.
THE TREATY OF UNION - WHY DID SCOTLAND REALLY GIVE UP ITS STATEHOOD?
The Treaty of Union and subsequent Acts of Union resulted in Scotland giving up its independence. And, whilst Scotland remains a nation and a jurisdiction, it does not possess statehood.
Yet it is important to understand the circumstances that led Scotland to sign away its statehood and independence. In order to do this, it is first necessary to appreciate that England had long desired to control Scotland as part of an English-controlled state. This is something that had intensified following the Union of Crowns in 1603, and something, it should be noted, that Scotland had long resisted.
The oft-taught, simplified version of events is that, following the failure of the Darien scheme to establish a colony in the late 17th century, Scotland was essentially a bankrupt nation and so political union was seen as a way out of this economic black hole. The reality, however, is rather more nuanced.
Firstly, whilst the Darien scheme had attracted thousands of ordinary Scottish citizens to invest a huge proportion of the nation’s available capital [24], it had largely been privately funded. Thus, while the collapse of the scheme had proved to be a huge financial blow to the nation, it had largely affected the people of Scotland, rather than the state itself. It’s worth noting that, at the time of union, Scotland had a national debt of just £160,000. England, by comparison, had a national debt of £18 million [23]. Indeed, the money accepted by Scotland, as part of the Union (£398,085) was actually given by England as compensation to assume its share of the combined national debt. “The Equivalent”, as the sum of £398,085 10s was called, was a payment from the English Government under the terms of the Acts of Union [22]. Yet the figure paid to Scotland fell short of what Scotland’s share of England’s national debt would actually amount to (an amount in the region of £2.5 million) [23].
What cannot be denied is that the collapse of the Darien scheme had been a major blow to the Scottish economy, and moreover, it was certainly a factor in Scotland’s decision to sign the Treaty of Union. However, it was not the only factor. Indeed, in many respects, it was merely the straw that broke the camel’s back.
In the five decades prior to 1707, England passed a series of Acts that had a devastating effect on its relations with Scotland. These Acts harmed not just Anglo-Scottish trade and Anglo-Scottish interests, but even the Union of Crowns itself. The culmination of these measures would result in the downgrading of Scotland’s relationship with England to such an extent that the two countries ended up as bitter rivals rather than allies.
It all started with the English Navigation Acts of 1660 and 1663, which classified Scotland as a foreign country, and thereby excluded Scottish ships from trade with the English colonies [25]. These two acts were a key factor in the failure of the Darien scheme.
Then, in 1701, England passed the Act of Settlement. This was in response to the failure of Queen Anne to produce any surviving children, and the requirement that only a Protestant could take the throne. It was decreed by England that the Crown would pass to the German house of Hanover upon Anne's death. Scotland, however, was not consulted and, in response, passed the Act of Security in 1704, ensuring that it reserved the right to choose its own successor to Queen Anne [34]. The Union of Crowns has essentially come to an end.
Yet alienating Scotland on the high seas, and driving a coach and horses through the Union of Crowns was not enough itself to force Scotland to abandon its statehood. What was needed was a much firmer push - something that would ensure Scots were alienated not just at sea, but on land too; a move that would force them to submit to a political union with England.
This materialised in the form of the Alien Act of 1705, which led to an embargo on Scottish products being imported into England and its colonies, and curtailed exports from England and its colonies to Scotland. Further provisions in the Act classified Scots living in England as being aliens (i.e. foreign nationals) and asserted that Estates held by Scots would be treated as alien property, something that made inheritance uncertain [26] [27].
Looking through the lens of history, it’s clear to see that England had engineered the dismantling of the Union of Crowns, and had systematically alienated its closest ally with the aim of forcing it to submit to a political union. And it is though this prism that we must view the Treaty of Union. This was not two states voluntarily coming together for the betterment of both. Rather it was a larger state forcing its smaller neighbour to submit to political union for its own benefit. It was, in short, a takeover, not a merger.
International law states that “nothing can be done without or against the will of a sovereign State” [28]. With this in mind, it is worth recapping that England - the nation calling for political union with Scotland – had, in the years leading up to 1707, implemented the following measures against Scotland:
- Decreed that Scottish ships were to be considered foreign and forbade Scottish ships from trading with England’s’ colonies.
- Blocked all imports from Scotland resulting in Scotland losing half of its export market.
- Curtailed many exports from England to Scotland.
- Unilaterally passed legislation relating to the monarchy despite being in a Union of Crowns with Scotland.
- Reclassified Scottish citizens and their property in England as “alien”, removing in the process many of the rights they previously enjoyed.
Let’s also keep in mind that the above measures were implemented by a country that had shared a monarch with Scotland since 1603 and was supposedly an ally of Scotland.
Things were, of course, were done different in the past and the point here is not to question the validity of the Treaty. Yet that does not stop us from asking whether, given the circumstances under which it was signed, Scotland should have the right to revoke the treaty - or at least redraft the treaty on equitable terms.
Nowadays, The Concept of Sovereign Equality of States is a foundational principal in International Law. Consider the following from the GIMPA Law Review, 2(1), (2016), pp.14-34:
“The notion that the existence of a State must not be based on, inter alia, the military or economic power it wields to assure its existence and prevent interference from other states, has evolved over the centuries and has become a foundational provision in the United Nations Charter. States are deemed equal just by their status as states under international law. Sovereign equality is therefore juridical in nature in that, all states are equal under international law in spite of asymmetries of inequality in areas like military power, geographical and population size, levels of industrialisation and economic development.” [29]
Of course, it should be stated that this is an example of modern international law. Thus, whilst it would be hard to argue that Scotland and England were equal signatories of the Treaty of Union, we have to accept that it was signed in a time when smaller nations did not have the protections that are available today. The Permanent Court of Arbitration, for example came into being almost two centuries after the Union, in 1899, whilst the International Court of Justice was founded even later, in 1945.
Nonetheless, we live in a society today that is willing to try and right the wrongs of the past. Take slavery, for example, which was commonplace at the time the Treaty of Union was signed. These days, many historical statutes and symbols associated with the practice of keeping and trading slaves have been removed worldwide. Scotland should at least have the right to have its historical wrongs rectified. And, if this Union is to try and claim to be in any way fair, then Scotland should have the right to revoke the Treaty if it so choses – especially given the circumstances under which it was signed.
After all, if England wanted to leave the Union (or more accurately, dismantle it), who could stop it? Neither Scotland, Wales, nor Northern Ireland (whether separately, or combined) could prevent England from leaving the United Kingdom. Yet, whilst England may be free to decide its own destiny and that of the Union, Scotland is essentially little more than a hostage of England’s greater population. And, when English politicians, who have neither lived nor worked in Scotland, continually dismiss Scotland’s right to choose its own constitutional destiny, it shows just how insecure they are about the Union they are forcibly trying to hold together.
THE 2014 REFERENDUM - WAS THE NO VOTE A VALIDATION OF THE UNION?
Proponents of the British state could argue that the Scottish referendum was a de facto vote for the Union. And, to the uninformed observer it may seem that way. The reality, however, is that from the get-go, the cards were stacked almost entirely in favour of the Union.
Firstly, Scotland, at the time of the referendum, had already been subjected to over 300 years of UK state propaganda. For three centuries, the British state has been able to promote its case to exist - its raison d'être, if you will - to the Scottish populace without impediment or restriction. And whilst Scotland may now have its own parliament, it is still very much restricted within the devolution framework. Broadcasting in Scotland, for example, is entirely under UK government control, and almost every newspaper sold in Scotland is published by an English-owned, pro-Union media company [30]. During the 2014 referendum, having almost complete control of the mainstream media was a major weapon in the British state’s arsenal, and was used to great effect to stoke up fear over the likes of jobs and pensions should Scotland have chosen independence.
Those on the side of independence simply did not have the information infrastructure to counter the pro-Union message. Indeed, the only source where independence supporters were given a fair crack of the whip, as regards information, was in the realm of social media, in particular Twitter and Facebook.
Taking into account the fact that the pro-independence side had next to no control of the mainstream media, for it to have achieved 45% of the vote is nothing short of remarkable - and especially given that it had started from a support base of less than 30% [31]. Moreover, It would be entirely logical to assume that of the 55% who voted No, a great many did so out of fear for their jobs, pensions, economic well-being and the potential loss of EU membership, rather than a genuine love for the British state. After all, numerous surveys have shown that the majority of people in Scotland consider ‘Scottish’ to be their only national identity [32]. Whichever way you look at it, the 2014 vote was hardly a ringing endorsement of the Union.
THE FANTASY OF FEDERALISM
There are those who would argue that federalism offers Scotland the best of both worlds. Not only could it address the imbalances of the current United Kingdom, it could also deliver Scotland a greater level of autonomy without the need to leave the Union.
Since the 19th Century, Scotland has been promised everything from home rule and federalism, to “near–as-dammit federalism” and “devo max”. However, with a string of broken promises for a century and a half, the British government simply cannot be trusted on this matter. The simple fact of the matter is that the British state has absolutely no intention of ever implementing a federal UK. The reason for this is simple: to be in any way workable, it would likely require the breakup of England into smaller administrative units - something that would essentially mean the end of England. Yet the United Kingdom exists primarily to benefit England, not to extinguish it, or to threaten its constitutional integrity in any way.
Germany, for example, can exist successfully as a federal state, yet it was only made possible by the dismantling of its largest constituent part – Prussia. However, modern Germany’s federal system (which was implemented in conjunction with the break-up of Prussia) was a creation of the Allies, rather than of Germany itself [35].
Yet, there are no outside agencies with the power to temper the inherent political imbalance within the United Kingdom, and almost no desire within England for a federal system to be instituted. The United Kingdom was created to benefit English interests and it remains to benefit English interests. The creation of a federal UK would be a threat to this primary objective and thus would be highly unlikely ever to happen.
Even if federalism could be delivered, it would still ultimately fail to deliver key powers that Scotland needs to become a modern progressive nation. Firstly, a federal system would not allow Scotland control over key constitutional matters like the issuing of its own citizenship, or the right to choose its own elected head of state. More importantly, it would deny Scotland its own identity internationally, with the result that it would be unable to have its own seat at the UN, or membership of the EU. Furthermore, it would prohibit Scotland from forging its own foreign policy, and would not protect it from getting dragged into wars that it had no desire to participate in.
IS A SECTION 30 ORDER NECESSARY?
The main stumbling block as to the holding of another referendum revolves around the issue of whether or not a Section 30 order is required for a referendum to be legally binding. Section 30 of the Scotland act 1998 relates to the temporary (or permanent) transferring of reserved powers to Scotland from the United Kingdom and must be approved by the Scottish Parliament and both Houses of the UK Parliament [36]. Yet the issue of a Section 30 order is not directly concerned with referendums, or with sovereignty. Rather, it relates to the Union.
Under Schedule 5 of the Scotland Act 1998, reserved matters are classified as either general reservations or specific reservations. Of these, “aspects of the constitution” are listed as general reservations. These “aspects” include the likes of the Crown, the Union and the UK Parliament [37].
During the 2014 Scottish referendum, the UK Government employed the services of two academics, Professors James Crawford and Alan Boyle. Their role was to determine whether, in the event of a Yes vote, the remaining UK (England, Wales and Northern Ireland) would stand to inherit the UK's membership of international organisations and trade deals as a continuator state, or whether two new states would be created [38].
In doing so, Crawford and Boyle had to examine the very nature of the Union itself. The UK, as we have seen, has never in its three century history defined itself either in constitutional terms, or in the way that, as a state, it differs from the English state that preceded it. In their report: Annex A. Opinion: Referendum on the Independence of Scotland – International Law Aspects, Crawford and Boyle state the following:
"Whether or not England was also extinguished by the Union, Scotland certainly was extinguished as a matter of international law, by merger either into an enlarged and renamed England or into an entirely new state.It is therefore misleading to speak of Scotland (or similarly of England, Wales, Northern Ireland or the isle of Great Britain) as if it were an entity already possessing international personality in its own right or some other relevant international status, regardless of what status it may have as a matter of UK domestic law.It may also be misleading to speak of dissolving the ‘Union’ effected by the incorporation of those territories: whatever the position historically or politically or in domestic law, in international law the position of the UK does not necessarily differ from that of a state formed in some way other than by a ‘Union’”. [39]
Crawford and Boyle, on behalf of the UK Government, are essentially stating that, firstly, the UK is little more than a rebranded, enlarged England; secondly that Scotland does not have an identity of its own, outside that which exists within the United Kingdom; and thirdly that the Union exists only as a historical event rather than an existing entity because, under international law, they consider the UK's position to be no different from any other state.
If the Treaty of 1707 had extinguished Scotland, then the Union would exist only as a one-time event historical event, not a continuing entity. However, given that the Union, as an entity, has been reserved by Westminster, then, logically, it must still exist as a living entity. And if the Union is still in force, then the treaty that created it must, likewise, still be in force.
Clearly, the Union remains as a continuing, living entity. Yet if Scotland cannot leave the Union of its own volition, then the United Kingdom is not actually working as Union. And, by reserving power over the Union to itself, Westminster has effectively placed it solely in English hands by dint of England’s larger population and the fact that its MPs can always outvote Scotland’s.
CONCLUSION
The creation of the British state was brought about by England for its own benefit. It was not some mutual coming together of two states for the benefit of both. Testament to this stems from the fact that it wasn’t Scotland that introduced the Navigation Acts of 1660 and 1663, or the Alien Act of 1705 that essentially downgraded the status of Scotland from partner to that of a rival state. Nor was it England’s parliament that was abolished in 1707.
For England, the Union was never about abandoning its statehood (as had been the case in Scotland). Rather they saw it as expanding and enhancing their state through the acquisition of Scotland. Not only did the Union leave it with almost full control over its neighbour, it also provided them with additional land and resources, as well as an enlarged consumer market. It was, in essence, the ultimate expression of English nationalism.
And if England intended the British state to be, in the words of Professors James Crawford and Alan Boyle, an “enlarged and renamed England”, then this is perhaps the reason why it chose not to define itself constitutionally. A written constitution would have cemented in place the fact that the British state was a separate, clearly defined entity from the Kingdom of England that preceded it. And the fact that the British state chose not to produce a codified constitution for any of its three incarnations (1707, 1801 and 1921) is arguably indicative of the fact that this was more about renaming the English state than superseding it.
As regards the issue of where sovereignty lies within the constitutional framework of the United Kingdom, there does exist the notion of parliamentary sovereignty. Yet this is something that predates the Union and was never written into either the Treaty of Union or the subsequent Acts of Union. The assumption would therefore appear to be that, as Westminster was the continuing parliament, the notion of parliamentary sovereignty would simply be inherited by the newly created British state and cemented in place through precedence. Yet the use of precedence – or, more specifically, binding precedence - to declare parliamentary sovereignty over Scotland, is contrary to Scottish law (a law protected by the Treaty of Union itself). Moreover, it is also out with the spirit of the Treaty, which made no demand on Scotland to transfer its sovereignty.
Furthermore, if legal precedent is considered to be of such importance in determining Scotland’s constitutional rights within the United Kingdom, then surely the Referendum of 2014 has already set the precedent for the holding of a future referendum. And let’s be clear: throwaway remarks at the time of it being a “once in a generation” vote, were just that - throwaway remarks. There is absolutely nothing in writing that binds Scotland to being only permitted to hold a referendum on independence just once in a generation. Indeed, the sheer vagueness of the term “generation” is indicative of this alone. For example, with regard to Northern Ireland, it is stated in the Belfast Agreement that a referendum on Irish Unity can be held specifically seven years after a preceding referendum. No similar requirement exists in Scotland.
When politicians in London – politicians, let’s be clear who have never lived or worked in Scotland – choose to ignore, or simply brush aside Scotland’s right to determine its own constitutional destiny, they serve only to highlight the fact that Scotland is not part of a real union. Rather, the United Kingdom is a faux union, with decisions being made by England, and England alone. Ultimately, Scotland’s right to choose is being held hostage by a population imbalance that works entirely in England’s favour.
And we should ignore every false promise of federalism. Federalism is the British state’s ultimate fall back plan for when the status quo becomes entirely unsustainable. For now, they consider it enough to simply mention it in the hope that “the independence threat”, as they see it, goes away. Yet federalism would fail to provide Scotland with many of the necessary powers it would need in order to be a truly progressive modern nation. Moreover, in order for federalism to work, it would likely mean that England would have to be broken up into smaller administrative units. Alternatively, if England were not to be broken up, the UK would have to be weighted considerably more in favour of the smaller nations in the Union. This is a practice that is used in the EU, yet it is unlikely to be something that England would commit to.
If the UK was in any way serious about being a British rather than an English state, then it would cease the practice of prefixing its international agreements and treaties with the word “Anglo”. Likewise, the Bank of England – the UK’s central Bank – could easily be renamed the Bank of the United Kingdom. These two very small steps could easily be taken in order to make the UK at least appear more like the union it purports to be. That there have been no serious moves to take these steps is somewhat indicative of the true nature of the Union as a fundamentally English state.
In every respect, England is the glaring anomaly in the Union, because, as a constituent nation, it stands entirely apart from Scotland, Wales and Northern Ireland in its relationship to the United Kingdom. If, for example, England wanted to be independent from the UK, all it would have to do is elect a party with a manifesto commitment to take England out of the United Kingdom. Then, upon election, this party could simply carry out its manifesto pledge unhindered. Of course, were England to leave the UK, it would have the effect of dismantling the remaining Union by default; without London to tether the remaining constituent parts together, it would simply disintegrate.
Further testament to England’s place in the Union being an anomaly is the fact that there is not a Secretary of State for England in the way that there is a Secretary of State for Scotland, Wales and Northern Ireland. Nor has there been an “England Act” in the way that there exists a Scotland Act, a Wales Act and a Northern Ireland Act.
Nor will England ever be a devolved nation like Scotland or Wales. England has no need for a devolution parliament because its parliament was never abolished. Its parliament is essentially the same parliament that has stood on the banks of the Thames for over 700 years. On constitutional matters it has the weight of 86% of all MPs on its side. And for solely English matters, it can simply subject a bill to EVEL ('English Votes for English Laws').
The upshot of all of this is that the United Kingdom is a very unbalanced Union, favouring its most populous nation at the expense of its smaller nations. Essentially, the UK is not behaving as a union in any real sense, but rather as an English state with Scotland, Wales and Northern Ireland being, at best, appendages, and, at worst, little more than colonial outposts. Forcing Scotland to remain in such an unbalanced Union is both unjust and undemocratic, and every avenue must be explored to challenge this state of affairs and to reclaim its right to choose its own constitutional destiny.
SO WHAT NOW?
The first issue that needs addressing is whether a Section 30 order must be obtained in order to hold a legally binding referendum. Certainly the UK Government could simply grant a Section 30 order, yet so far it has refused to do so, and is very unlikely to do so in the near future. Moreover, even if it were to grant a Section 30 order, it’s very unlikely that it would be granted in the same manner as it was in 2014. Given the level of hostility shown by the current Westminster Government towards Scotland’s Government, it would be safe to assume that any granting of a Section 30 order would only be issued alongside a whole raft of terms and conditions favourable to the Union.
The next logical step, therefore, would be to challenge, in a court of law, whether a Section 30 order is a legal requirement in order to conduct a binding referendum. As we have seen, Section 30 relates not to referendums, but to the Union itself. Yet if the Union is not working as a union, and can be demonstrably shown not to be working, then this may work in Scotland’s favour in a court of law. Moreover, as we have seen, both the issue of where sovereignty resides, and the constitutional status of Scotland (and indeed the UK itself) have never been adequately defined and remain open to interpretation.
In the event that a legal challenge to the necessity for a Section 30 order is rejected in court, then the next step should be for Scotland to prepare to hold a referendum regardless. Much of the preparation for this should also include developing a close relationship with the European Union so that, in the event of a vote in favour of independence, Scotland will potentially have recognition already in place to support its subsequent declaration of independence.
Developing such a relationship with the EU should be a relatively easy process. Firstly, Scotland is a predominantly pro-EU nation, and as such stands in stark contrast to the UK state which is somewhat out of favour in Europe, with trust issues at an all-time low. Secondly, the EU would likely jump at the chance to regain a pro-European part of the UK back into the club.
Another aspect that could work in Scotland’s favour in garnering support from the EU is the fact that, whilst the English judicial system is a common law system, most nations in the EU have civil law (i.e. codified) judicial systems. A simplistic way of looking at it would be this: civil law essentially details what you can do and how you must do it. Common law, however, focusses on what you cannot do.
The fact that the UK has neither a codified constitution, nor chosen to define where sovereignty lies within the different jurisdictions of the state, would likely be considered alien by most nations in the EU, where codified constitutions are the norm. And, were Scotland to vote in favour of independence - and the UK state chose not to recognise this vote - then these factors may well work in Scotland’s favour in helping it to win support and recognition for its independence from outside the UK.
The key to any nation’s independence comes first and foremost from international recognition. Without this, any independence bid will fail. If the UK state were simply to support Scotland’s right to be independent, then this would be an easy process. Yet the UK is currently in the grip of a right-wing English Nationalist government with absolutely no intention of letting Scotland go. Scotland needs to recognise this reality and instead focus its energies on developing relations internationally, because its’ greatest battle in becoming an independent nation may not be with the UK state, but in achieving international recognition for its independence.
REFERENCES
