Here's a closer look at the Act of Union – and how we quit

I seriously doubt if any more than, say, 2% of the Scottish population have read all of the Act of Union as passed by the Scottish Parliament on January 16, 1707, by 110 votes to 67.

So today and next week I am devoting this column to that Scottish Act of treachery and self-interest.

I am not writing about how the Act came about as I have written about that process before, but about the Act itself and what it means for those of us who believe in Scotland regaining its independence – not winning independence but taking it back, which is why my personal slogan is “regain the nation”.

You can call this a sort of exegesis, not least because there are foolish people out there who think the Act of Union has the status of Holy Writ rather than the self-serving political construct which it was.

Some preamble is necessary, however. In late July 1706, the Articles of Union – a very important part of the Union process but NOT the final Acts – were presented by the joint Union Commissioners of England and Scotland to Queen Anne at a ceremony at St James’ Palace.

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The Earl of Mar wrote to his brother to describe the ceremony. The letter is preserved in the National Records of Scotland. It states: “You cannot immagine how agreeable it was to everybody here Our concluding the treatie & delivering of it to the Queen, which was done very solemnlie.

“She summond us to meet at the Councill chamber at St James. We walkt throw the rooms from that to the room her Majesty was in to receave us where were all the Ladys & the Court & fforaigne ambassadors.

“One of us & one of the English walkt togither & so on, we on the left hand as we walkt but we were on the Queen’s right hand. The Keeper & our Chancellor made a speech when they delivered the books & then the Queen made a speech to us.”

Proof positive, you can see, that as far as some Scottish aristos were concerned, the Union was a fait accompli from the outset.

The Queen wanted it, the English Parliament needed it to keep those pesky Scots peaceable and tame, and the Scottish Commissioners and much of the political class wanted it because most of them were in dire financial straits, not least because of the disastrous Darien Scheme failure. We will also see next week how the original Articles agreed on July 22, 1706 were not the same as the Acts passed by both the English and Scottish Parliaments, which will lead to me to make an intriguing suggestion…

The Three Estates of the Scottish Parliament took longer than the English Parliament to approve the Union, but not by much. Despite the anti-Union riots across Scotland, which saw the entire standing army in Scotland based outside Edinburgh while a massive English army prepared itself on the Border, and despite the brave attempts of some parliamentarians to oppose it, the Act of Union came into being. The Scottish Parliament – note, not Scotland – voted itself out of existence, though not before it had imposed martial law on the people.

Here is Article 1: “That the two Kingdoms of Scotland and England shall upon the first day of May next ensuing the date hereof, and for ever after be United into one Kingdom by the name of Great Brittain (sic).” Yep, they couldn’t even spell Britain right, but had fixed it by the time the Scottish Parliament passed the Act.

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Interestingly, the second section of that article shows that even then the Unionists were concerned with promoting what The National has called Union Jackery: “And that 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.”

IT is very germane to concentrate on the use of the word “kingdom”. Both Scotland and England were kingdoms, which was the normal form of states at that time. There were a handful of republics, the most famous of which were Venice and Genoa – by coincidence the latter’s flag was a St George’s Cross – and the Dutch Republic, which had provinces ruled by stadtholders (stewards) of which King William II of Scotland and III of England was one, and he never surrendered that status. Bear in mind that only 50 years previously, both England and Scotland had been incorporated into a republic, Oliver Cromwell’s Commonwealth, and you can understand why the commissioners wanted to emphasise to Queen Anne that the new state would be a kingdom.

Nowhere in the Act does it state that the country of Scotland would cease to exist: what it did do was create a new STATE, a unitary state, called the United Kingdom. States are not the same as countries or nations, and states come and go all the time – in our own time the USSR, East Germany and Yugoslavia, for instance.

So regaining the nation of Scotland is about dissolving a state, not the “country” of the UK, which in technical terms has never actually existed.

Jump to 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.”

Many people think you can just dissolve the Union by Scotland somehow pulling together and walking away. I am sorry to say this, but legally, morally and historically, that cannot be done. Yes, we know the Union was contrived by a parcel of rogues against the wishes of the majority of the people of Scotland, but under the legally understood term of “custom and practice”, if nothing else, Scotland has accepted the Union since 1707, and we are thus trapped inside the Union until the proper way of extricating ourselves can be found.

Notwithstanding prime minister Margaret Thatcher’s expressed view that independence would follow the election of a majority of pro-independence MPs in Scotland – and I seriously doubt she would have followed through with that concept if she had still been in charge in 2015 – by strict interpretation of the Act of Union, it remains the job of the UK Parliament to dissolve the Union.

It is only comparatively recently since devolution that such a way has been found – a referendum approved by Westminster granting powers under Section 30 of the Scotland Act to allow that referendum to take place. There may be alternative routes to independence and of course these should be explored, but sadly the law as it is understood at the moment is as stated by then advocate general Lord Keen in July, 2018, in the UK Supreme Court: “The UK Parliament is sovereign, the Scottish Parliament is not.”

He was right in law undoubtedly, but wrong in what he said, because the whole basis of Scotland’s polity since the Declaration of Independence made at Arbroath in 1320 is that the Scottish people are sovereign (sometimes I wish those putting their egos and causes before the fight to regain the nation would remember that the people are sovereign, and why not give them the choices in a renewed Scotland over issues like the currency, constitution, membership of the European Union etc).

YET without a referendum under Section 30, it will take a massive legal fight to get free of the Union because of one simple fact: nowhere in the Acts of Union is there any single sentence or paragraph allowing for the dissolution of the Union by either England or Scotland. Its creators meant the Union to be permanent, so they just did not allow in the kind of item which is common in most historical treaties, namely the right to resile, as I call it. Without the right to resile, and without the terms of that right and how resiling is to be achieved, it follows that only the UK Parliament as established in the Acts of Union can make such resiling possible, unless the UK Supreme Court decrees otherwise.

Let’s go back to Article 2: “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 twelth 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.

“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, made by another Act of Parliament in England in the first year of the Reign of their late Majesties King William and Queen Mary entituled an Act declaring the Rights and Liberties of the Subject, and settling the Succession of the Crown.”

So there you have it in black and white. As I have written before, the foundation document of the Union, and thus the UK itself, is institutionally bigoted and discriminates against Roman Catholics, even if they have lapsed. Under the Union, no Catholic can be head of state, not least because he or she would be head of the protestant Church of England – that headship being an anachronism which should be dispensed with along with the House of Lords, in which Anglican bishops sit without being elected by the people.

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Sometimes I think the UK is actually a figment out of the imagination of Alice in Wonderland author Lewis Carroll, so bizarre and outmoded are some of its institutions. Feel free to challenge any Catholic Unionists you know about Article 2.

This Article 2 has already had and will continue to have profound consequences for the prospect of regaining the nation. National readers will need no reminding that the only reported violence at the time of the independence referendum was an egg thrown at Better Together Labour leader Jim Murphy – wonder if he ever read Article 2 – and the horrendous conduct of the Unionists who invaded George Square in Glasgow and attacked Yes supporters after the result was known.

Does anyone seriously doubt that if Scotland votes Yes to independence in the next referendum, that there will not be people who will don their Union Jacks and take to the streets to protest against the democratic outcome? Or do much worse, because these people feel an entitlement to the preservation of the UK, an entitlement which many of them will tie to their Protestantism due to that Article 2 of the Act of Union.

Next week: the foundation Articles of the British Empire...