Scratcher #DissolveTheUnion

Scottish Statehood and the Law https://t.co/rhFZ2Sm4V7 Partnership or annexation The state – the international person – recognised in international law in which this conference is taking place, is the United Kingdom of Great Britain and Northern Ireland. If a part of the territory of that international person – Scotland for example – wished to become independent how, in law, could that come about? The answer to that question depends on how one classifies the process whereby the currently recognised international legal person came into existence. As every schoolchild knows, before May 1707, the island of Britain was divided into two independent nations: Scotland in the north, and England in the south. The orthodox view is that these two states entered an international agreement, followed by Acts of their respective parliaments. By mutual consent, both ceased to exist, merging into a voluntary partnership to be reborn as a single unitary state: the United Kingdom of Great Britain. If the orthodox view is correct, if Scotland and England both ceased to exist and a new state, Great Britain, rose phoenix-like from their ashes, then the only internationally recognised means for Scotland to become independent would be to secede from that new state. And secession requires the consent of the state being seceded from. That is the view of the current situation unsurprisingly taken by the UK Government. It is also, more surprisingly, the view taken by the Scottish Parliament and the Scottish Government, as shown by repeatedly asking Westminster for a section 30 Order to allow a referendum on independence and repeatedly being refused or brushed off with “now is not the time” (and we’ll decide when the time is, if ever) or “once in a generation” (and we’ll decide how long a generation is). If you simply look at paperwork, at the Treaty and the Acts of the Scottish and English parliaments, then the orthodox view appears unanswerable. But what if the paperwork disguises or misrepresents what the true nature of the transaction was? This is known in legal circles as the concept of simulation: where legal forms are used to disguise the true nature of the underlying transaction. Names and descriptions in documents do not necessarily determine the legal reality. If England continued in existence while absorbing Scotland, calling the enlarged state Great Britain does not make England disappear any more than changing a company's name necessarily creates a new legal person. So what is the position if the true legal characterisation of what happened in 1707 was not the creation of a new state through the voluntary partnership of two states which then each simultaneously committed suicide, but was rather the absorption of one of the pre-existing states by the other – that other remaining in existence, wholly unchanged save for the extension of its geographical boundaries? In that case if Scotland sought once again to become an independent state the branch of international law which governs is not the law of secession but the law relating to resumption or recovery of sovereignty after annexation or colonisation. Modern examples of this process can be seen in the case of Namibia and the Baltic Republics of Estonia, Latvia and Lithuania. This branch of international law does not require the consent of the annexing state, indeed prohibits the annexing state’s interference in the process whereby the annexed state seeks to demonstrate that its inhabitants truly desire to resume independent sovereignty. The absolutely crucial legal issue accordingly is whether the state in which this conference is being held was a new state born in 1707 through a voluntary partnership between Scotland and England whereby both ceased to exist as states in international law, or whether, under cover of documents talking of or envisaging partnership and a new state, what actually happened was that England remained in existence and simply annexed or absorbed Scotland. So that is what it boils down to: is Scotland a voluntary partner in a unitary state jointly created by itself and England in 1707; or is Scotland an annexed territory of a continued and continuing England, cosmetically renamed Great Britain? If it is an annexed territory, then in law independence is achieved not through secession, but through recovery or resumption of sovereignty. Some Scots have an instinctive reluctance to accept the characterisation of Scotland as a colony of or as a dependency of England. Perhaps they might accept or find more palatable the description of Scotland as a territory annexed by England. In international law it’s the same thing and the consequences of the characterisation are the same. In my talk to this conference last year I explained how, to my own considerable surprise, I had come to the conclusion, looking at the organs of government of the post-1707 state, that for England nothing changed. What occurred was a takeover of Scotland by England, not a voluntary partnership or merger creating a new legal entity. As a state, England continued; Scotland did not. The conclusion which I then reached is reinforced by manifold instances in which it was simply assumed by authorities of the new regime – taken for granted – that English law, procedure and institutions extended to Scotland and to Scots post-1707. Here are a few examples. 1. A very telling symbol of this continuity of England is the title adopted by the late Queen, as proclaimed with the advice of the UK Government on her accession to the throne in 1952. That title was “Elizabeth the Second” notwithstanding the fact that the first Elizabeth, Elizabeth Tudor, reigned over England alone. Had a new state replacing England come into existence in 1707, the late queen would have been the first monarch with the name of Elizabeth to be its head of state. The use of "the Second" is a quiet but profound admission that the English monarchy, and by extension, the English state, continued undisturbed. Similarly, had a new state really come into existence in 1707 the king who succeeded George IV in 1830 would have been William I, not William IV, and the two twentieth century kings entitled Edward VII and Edward VIII would have been Edward I and Edward II. 2. The first official collection of the legislation of the Westminster parliament, The Statutes of the Realm was published between 1810 and 1822. In that collection the numbering (by regnal year and chapter number) of the legislation passed by the Parliament continued in an unbroken series before and after the addition of the Scottish members. Thus, the Act of the English Parliament ratifying the Treaty of Union was 6 Anne c11; the last Act passed by it before the new dispensation took effect on 1 May 1707 was 6 Anne c34 (An Act for continuing the laws relating to the poor, and to the buying and selling of cattle in Smithfield and for suppressing of piracy); and the first Act passed after the addition of Scottish members was numbered 6 Anne c35 (Land Tax Act). For England, nothing changed. It was only when a new collected edition of legislation Statutes at Large was published between 1870 and 1878 that the numbering system was changed and Acts passed after the admission of Scots to the English Parliament were re-numbered as starting with 6 Anne c1. And the volumes of the official History of Parliament (covering England from 1264 onwards) have no volume breaks for the Houses of Commons and Lords at 1707, they simply blithely carry on from their previous treatment of the English Parliament. 3. In the Union with Ireland Act 1800 (c67), almost 100 years after the supposed establishment of the new state of Great Britain, the section which narrates the terms of the union is headed “The Parliaments of England and Ireland have agreed on the articles following”. 4. In the Strathmore Peerage Case in the House of Lords in 1821 (6 Pat 645 at 655) Lord Redesdale said: “If your Lordships will look at the Act of Union you will perceive that nothing is stipulated with respect to the continuance of the laws of England; but it is evident, and it has always been conceived, that the law of England was thenceforth to be deemed the general law of the realm of Great Britain (...) except as qualified by the particular provision with respect to the laws of Scotland” (presumably Article 18). He had earlier described the law of Scotland as “the peculiar laws of a particular district”. 5. Acts of the pre-Union parliaments of both Scotland and England provided for Scottish or English nationality to be conferred on certain classes of foreigners if they chose to claim it. A Scots Act of 1695 (c88) provided that a foreigner holding a minimum of £1000 Scots in stock of the Bank of Scotland was entitled to claim Scottish citizenship. In 1818 a national of China who worked in Edinburgh claimed citizenship in reliance on this provision. The UK government objected. The case went through the Court of Session all the way to the House of Lords (Macao v Officers of State 14 Nov 1820 FC) where Lord Redesdale opined: “It is perfectly clear that the Court of Session had no jurisdiction on the subject of such an action as this … The public law is that which is the law of the whole country (...) the public law of the whole empire” whereas the law of Scotland was the law of a “local jurisdiction that can have no power to act with respect to public law”. On the facts of the actual case, the decision may seem reasonable enough: after all, what was being claimed was post-1707 British citizenship, not Scottish citizenship. However, exactly the same question arose in the middle of the 20th century in the English courts. An English Act of 1705 provided for citizenship of England to be conferred on descendants of Electress Sophia of Hanover should they choose to claim it. After World War II a descendant of Sophia, Prince Ernest Augustus (who, incidentally, had fought for Germany in the war) claimed British citizenship in reliance on this Act. His case too went up to the House of Lords (Attorney-General v Prince Ernest Augustus of Hanover [1957] AC 436) and his claim to British citizenship, unlike Mr Macao’s, succeeded there. There can hardly be a clearer or more authoritative legal statement than this that England continued in existence after 1707, whereas Scotland did not. An English Act passed before Union could still operate as the basis for British nationality centuries later. Here you have the highest court in the land by its decision implicitly recognising that what existed after 1707 was a continuation of English nationality, not the creation of a new one. The institutional assumption clearly was: English law continued and applied throughout the whole realm; Scottish law was localised. 6. After 1707 the law which followed colonists to colonies in which they settled was always English law, even in cases where the colonists in question were exclusively or predominantly Scottish. An Australian authority (R T E Latham, 1949) commented: “ It is remarkable that after the … Union with Scotland in 1707 … the law that followed citizens of the united realm to colonies subsequently founded was invariably the law of England. There is nothing in the Acts of Union or elsewhere expressly providing this.” And a Canadian lawyer (J E Côté, 1977) wrote: “Large as the Scots have bulked in the history of the British Empire, no one has ever doubted that it was purely English law that was introduced into such colonies. That is true even of Nova Scotia …” I submit that the explanation is simple: the state of which post-1707 colonists were citizens was England, cosmetically renamed Great Britain after its annexation of Scotland, and so it was the law of England that accompanied them. Much of this happened unthinkingly: it was simply inconceivable to those exercising authority that the English law and practice with which they were familiar should not automatically now apply throughout the whole island. In some instances, however, the extension to Scotland was deliberate and far from unthinking. This is most clearly seen in the Treason Act 1708, which applied the English law of treason to Scotland. This was highly technical law based on judicial interpretation of an Act of 1351 in the reign of Edward III. Scots who participated in the 18th century risings were usually sent to England to be tried for treason even if the treasonable acts alleged occurred in Scotland. And as late as 1820 special commissions of Oyer and Terminer were sent from London to try Scotsmen on treason charges in Scotland, with an English prosecutor to keep the court right on the English law of treason. The meaning of Scottish sovereignty If what happened in 1707 was that Scotland was annexed by and absorbed into a still subsisting England, what was it of value that the Scots people lost and that would, or at least could, be regained if Scotland recovered or resumed its statehood? The primary answer to this question is, of course, sovereignty. In England the constitutional doctrine, at least after the deposition of James II in 1688, was (and remains today} that sovereignty reposes in the King in Parliament. In shorthand this is referred to simply as parliamentary sovereignty: Parliament can make or unmake any law whatsoever. In Scotland, on the other hand, sovereignty was said to repose with the people. But what did this actually mean? Was it really any more than performative posturing? Luckily we have a Scottish constitutional law textbook dating from 1579 that gives us answers to these questions: De Jure Regni Apud Scotos by George Buchanan. Buchanan argued that ultimate political power and sovereignty reside with the people, not the monarch. Drawing on Aristotelian naturalism and early social contract theory, he asserted that the first Scottish society voluntarily created a monarchy out of the laws of nature to maintain order. Therefore, the king’s authority is not absolute or divine, but a delegated trust. Buchanan claimed that, by historical precedent, the Scottish crown was fundamentally elective and conditional. He pointed to the coronation oath as a legally binding compact. When Scottish kings were inaugurated, they made a solemn promise to the people to uphold the laws and ancient practices of their ancestors. If the king fails to meet these conditions, the mutual bond between the ruler and the citizens is dissolved. A fundamental pillar of Buchanan's constitutional theory is that the king is subject to the law, not above it. Buchanan argued that because a king who becomes a tyrant breaks the constitutional social contract, they forfeit their right to rule and effectively become a public enemy to the state. Consequently, the community has a lawful right to resist, put on trial, depose, or even punish the monarch. We see these ideas being expressed in Scotland both before and after George Buchanan’s time, eg in the 1310 Declaration of the Clergy in favour of Robert the Bruce who “with the concurrence and consent of the people he was chosen to be King”; and in the Declaration of Arbroath in 1320: “Divine Providence (...) the law and customs of the kingdom (which we will defend till death) and the due and lawful consent and assent of all the people made him our king and prince. To him we are obliged and resolved to adhere in all things, both on account of his right and his own merit, as being the person who hath restored the people’s safety in defence of their liberties. But after all, if this prince shall leave these principles he hath so nobly pursued, and consent that we or our kingdom be subjected to the king or people of England, we will immediately endeavour to expel him, as our enemy and as the subverter both of his own and our rights, and we will make another king, who will defend our liberties.” The Claim of Right, 100 years after Buchanan’s time, was to a large extent founded on the constitutional principles that he had enunciated: James VII had breached the terms of his contract with the Scottish people, who had therefore exercised their right to depose him and to offer the throne to William and Mary. The English equivalent document, the Bill of Rights 1689 is founded upon a quite different thesis: James II had abdicated the throne and fled the country, thereby opening the door to Parliament offering the English Crown to someone else. However, popular sovereignty under the Claim of Right, following Buchanan, does not simply consist of the high constitutional principle that the people of Scotland have the legal right to remove kings who fail in their legal duties to the people. It goes much beyond that. It entails that the people (“to whom belongs the supreme power” Buchanan, p99) make the law and that the king, or head of state, is bound by the law so made. It was always the case that Acts of the Parliament of Scotland applied to the king as much as to the citizenry. Compare this with England, where an Act of Parliament did not bind the monarch unless it was specifically stated in it that it did. The Claim of Right goes on to state that all proclamations asserting absolute power to cass, annul and disable laws are contrary to law. This applies to parliaments as well as to kings. It is the people, not the king and not the parliament who are sovereign. Furthermore, in Scotland, unlike England, legislation could simply expire by desuetude – through the people simply not accepting it and continuing to act contrary to its terms. An interesting example of this is the 1424 Act of James I prohibiting the playing of football, a game which I understand is still being played after a fashion in Scotland today. John Erskine of Carnock, one of my most distinguished predecessors as Professor of Scots Law at Edinburgh University, in his Institutes (I. i. 45, 1773) wrote “... as a posterior statute may repeal or derogate from a prior, so posterior custom may repeal or derogate from a prior statute … for the contrary custom sufficiently presumes the will of the community to alter the law in all its clauses … and this presumed will of the people operates as strongly as their express declaration.” That is a truly remarkable constitutional idea. The people do not merely obey the law. The law ultimately derives its authority from the community, from the people; and by consistently disregarding and acting contrary to a particular legislative provision, they effectively repeal it. The people, not the king and legislature, are sovereign. Common good in burghs and regalia nationally Popular sovereignty is also demonstrated in the Scots law relating to public property, both local and national. The common good property held by local authorities today originates in the common good of a burgh, a concept which has existed for more than 500 years, as the following extract (still in force) from the Common Good Act 1491 demonstrates: “Item it is statut and ordinit that the commoune gud of all our souerane lordis burrowis within the realme be obseruit and kepit to the commoune gude of the toune and to be spendit in commoune and necessare thingis of the burght be the avise of the consale of the toune for the tyme and dekkynnis of craftis quhare thai ar” (1491 c36, s 1). [see Mark Lazarowicz, 2023 Journal of the Law Society of Scotland] As regards national public property Erskine wrote (Inst II vi 17): “All the subjects which were by the Roman law accounted res publicae are held to be inter regalia or in patrimonio principis, as rivers, free ports, and highways leading from one city, borough, public port or ferry to another … But as the regalia of this sort are … chiefly adapted to public use, the king’s right in them is truly no more than a trust for behoof of his people.” These regalia are “inseparable from the royal dignity and are incommunicable [ie untransferable] absolutely and without exception” or at least are not communicable without the interposition of the states of the kingdom (Inst II vi 13). The liberty of the citizen The Claim of Right’s constitutional reach extends far beyond the position of the head of state and the legislature and limitations on their power. It contains what can today be regarded as the core protections of the liberties of the citizen. According to the Claim of Right, the following are all contrary to law: Extraordinary fines, exorbitant bail, arresting without stating reason, fines and forfeitures before sentence, delaying trial; Causing pursuit and depriving of rights/property of persons upon stretches of old and obsolete laws, upon frivolous and weak pretences, upon lame and defective probations; Interfering with the self-government of burghs; Trying to influence courts by private approaches; Self-incrimination, torture; Holding it to be treason for persons to refuse to disclose their private thoughts and judgements in relation to points of treason or other men’s actions. There are further provisions outlawing martial law in times of peace, the billetting soldiers in private households and, most importantly, prohibiting husbands being penalised for the failure of their wives to attend church. Here, then, derived from a 16th century Scottish textbook and a 17th century Scottish legislative statement we have the bare bones of a constitution, including a bill of rights, for a revived nation state of Scotland. What was lost in 1707? What did the people of Scotland lose through its annexation and absorption? Not merely a parliament. Not merely a government. Not merely international personality. The fundamental loss was of the institutional mechanisms for giving effect to the exercise of Scottish popular sovereignty. Scotland lost control over its constitutional development. It lost control over its economic development and its natural resources. Some local institutions, of course, survived. But these were surviving Scottish institutions within a state whose central political machinery was no longer Scottish. A constitution for a revived sovereign Scotland In George Buchanan’s treatise and in the Claim of Right we have material upon which a modern constitution can be built. Of course, these bare bones would require to be fleshed out; but there are many modern 20th and 21st century constitutions which can be studied for inspiration, including those of South Africa, Namibia, Tuvalu, Zimbabwe and Zambia. And constitution-building is a task that all of us who are serious about Scotland recovering her statehood should be quite urgently engaged upon. Because resumption of Scotland’s statehood is coming, and when it does we are likely in retrospect to assess that it happened “gradually and then suddenly” or, as Ernest Hemingway’s words are more usually misquoted, “slowly, then all at once”. Robert Black KC FRSE 18 October 2026