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Anglo-Scottish Relations, from 1900 to Devolution and Beyond$

William L Miller

Print publication date: 2005

Print ISBN-13: 9780197263310

Published to British Academy Scholarship Online: January 2012

DOI: 10.5871/bacad/9780197263310.001.0001

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New Unions for Old

New Unions for Old

(p.249) 16 New Unions for Old
Anglo-Scottish Relations, from 1900 to Devolution and Beyond

Neil MacCormick

British Academy

Abstract and Keywords

This chapter recommends a reversion from the 1707 Union of Parliaments to the 1603 Union of Crowns (though not of governments). Its argument is originally submitted to the joint attention of the Royal Society and the British Academy on a date very close to 5 November 2003. James succeeded in preserving peace in the islands during his long reign — long in England itself, longer yet in Scotland. In Westminster as well as Edinburgh and elsewhere, real power has come to be invested in parliaments, and thus in the governments that command parliamentary majorities through the dominance of political parties. The UK system works so long as party ties make more or less unquestioned the loyalty of the head of a devolved Scottish government to the head of the United Kingdom government. Generally, the present contribution is offered primarily as a scholarly, not a political one. It is enough if it has sketched grounds for taking seriously the question what ‘new unions for old’ might mean.

Keywords:   1707 Union of Parliaments, Union of Crowns, UK system, Scottish government, United Kingdom government, Royal Society, British Academy

THE CONSTITUTIONAL POLICY OF THE SCOTTISH NATIONAL PARTY, of which I was until 2004 a Vice-President and an elected representative in the European Parliament, proposes ‘Independence in Europe’ for Scotland, but with a continuation of the shared British monarchy. Headship of State in Scotland should continue to be vested in Queen Elizabeth and her successors as these are determined in future by the law of Scotland. The present European Union Membership of Scotland (as part of the United Kingdom) should continue, as should that of other successor states to the United Kingdom (save if one or more took advantage of an implicit or, possibly, explicit, right to right to discontinue that membership).

The political case for this view presents it as a way to avoid certain of the implicit difficulties built into the variable geometry of the current UK constitution under multi-speed devolution. What is offered is, among other things, one solution to the problems of political identity which bulk so large in these islands, and throughout the European Union, at the present time. Certainly, not all my political colleagues agree about the continuing Union of Crowns. Some disagree on grounds of republican principle. Others disagree on the ground that a dual Headship of State would be unworkable or at any rate damaging to at least one party during a period of negotiation for a consensual dissolution of the current incorporating union as it has evolved since first adopted in 1706/7. The compromise that we all accept says that a referendum should be conducted following the establishment of Scottish independence on the question whether to substitute an elective for a hereditary head of state.

Unlike many of my political friends I contend in a quite unembarrassed way that there ought to remain some form of union between Scotland and England in the time to come as in the past four hundred years. We share an (p.250) island, a huge amount of trade and of personal and familial interpenetration. This merits some political recognition and even celebration. But, in my view, this should not be at the cost of demoting Scotland to the status simply of a ‘region’, one among many, in the European Union as this is evolving. The idea of a ‘union’ of some kind, very different from the present, is one I inherit from, among others, the patriot Andrew Fletcher of Saltoun. A union through shared membership of the great confederation of the European Union, with a shared head of state but not of government seems to me a good version of ‘new unions for old’.

I argued this at length in the concluding chapter of my book Questioning Sovereignty in 1999,1 and I have not seen reason to change my opinion much in the past five years. Indeed, with the enlargement of the EU and the entry of ten new states, six smaller than Scotland and one (the Slovak Republic) the same in size, the case seems yet more compelling. A further part of that argument deserves a reprise also. It is possible to envisage, and to welcome, an evolution of the current ‘British/Irish Council’, or ‘Council of the Isles’ into a collaboration of independent but cognate countries akin to the Nordic League (which Scotland should seek also to join) or to Benelux.

Malcolm Rifkind once criticised the ‘new unions for old’ idea on the ground that it repeats a formula previously tried, tested, and failed. The Union of the Crowns was in itself a failed union, says Rifkind. It was saved at the last gasp only by being turned into a full incorporating union under the Union Treaty of 1706 ratified by the Scottish and English Acts of Union enacted by the two parliaments in 1707. A close friend and political colleague put the same point to me as recently as 1 November 2003 at a Scottish National Party meeting in Glasgow. The Union of the Crowns did not work well in the seventeenth century, and would work no better in the twenty-first, it is argued.

A part of the motivation for this volume on Anglo-Scottish relations is that 2003 marked the quatercentenary of the Union of the Crowns. In such a context, and in the light of present controversies, it seems fitting to reflect further on the Union of 1603, the personal union, the Union of the Crowns under James VI and I. Is it true that a regal union of that kind failed, and indeed true that it was foredoomed to failure? Would such a failure inevitably be repeated in contemporary circumstances?

The succession in 1603 by James VI, King of Scots, to the Crown of England and Ireland was a personal, but also a dynastic and diplomatic, triumph. The Marriage of the Thistle and the Rose, between James IV of Scots and Margaret Tudor, sister to the future Henry VIII, had borne fruit a century after its celebration. The long-held ambition of kings of England to (p.251) engross Scotland within their territories was achieved with a curious inversion. For a Scottish king, reared and educated in Scotland under the tutelage of the eminent universal-humanist but also intensely Scottish scholar George Buchanan, had, after all, engrossed England into his domains. (Of course, not even James really saw matters that way. The moment the news of Elizabeth’s death and her naming himself as heir reached him, he was off to London to lodge himself in the greater kingdom with almost indecent haste.)

As so many able students do, James rejected totally the teachings of his tutor—in so far at least as concerned political theory. Buchanan’s contractual theory of monarchy, with its corollary of the people’s right to depose a misruling monarch, met its exact antithesis in James’s version of the Divine Right of Kings. As a believer in divine right, James necessarily perceived his accession to the English throne as a God-given opportunity. As a lover of peace, he thought that the union of three kingdoms through his own person could bring an end to strife. He posed the aim of procuring a union of all his kingdoms in peace and under moderate religious toleration, albeit under episcopacy, not presbyterian rule.

James’s ambition for an immediate political union of all his kingdoms into a single one never got far off the ground. In the early seventeenth century, a full union proved as unacceptable to the English as to the Scottish Parliament, to say nothing of Irish problems. Schemes such as those drafted by the jurist-courtier Thomas Craig of Riccartoun fell stillborn from the authorial pen, although the beginnings of comparative Anglo-Scottish law then took shape, Craig’s Ius Feudale, itself a distinguished first fruit of the process.

The argument of this chapter was originally submitted to the joint attention of the Royal Society and the British Academy on a date very close to 5 November 2003. The coincidence gave a poignant reminder of the circumstances that brought about the early demise of James’s hope for a broad and tolerant approach in religious matters. The Gunpowder Plot of 1605 triggered virulent anti-Catholicism, and set a tone that never completely disappeared from the culture of the island of Great Britain until the later years of the twentieth century, if even then. Among the baleful consequences was the plantation of Ulster with Protestants who forcibly excluded the indigenous Gaelic-speaking and Catholic Ulstermen from all but the poorest land. As a strategy for ridding the Anglo-Scottish border of unruly elements, plantation may have had some success. As an element in a strategy for the governance of Ireland, it was a disaster.

James nevertheless succeeded in maintaining peace in the islands during his long reign—long in England itself, longer yet in Scotland. He it was who could at long range govern Scotland with his pen as his ancestors had failed to do with the sword. Charles I, heir through the death of his brother Henry, tried to carry on his father’s policies yet more ambitiously, but without any (p.252) real personal knowledge of the land of his own birth. He disastrously misjudged opinion in Scotland. The Bishops’ War was an inevitable consequence, and it in turn led inexorably to the overlapping but distinct Civil Wars of the three kingdoms. Of these, the long drawn-out aftermath was found in Cromwell’s protectorate and its savage coercion of Ireland during a time that also extended to Scottish merchants the advantages of coming within the scheme of the English Navigation Acts.

Charles’s approach, if it showed anything, should be supposed to have shown that haste for full union through uniformity in worship and in administration was by no means a path toward civic tranquillity. Other aspects of the drive to uniformity shade over towards a long and slow-burning form of genocide. From the point of view of Gaelic Ireland, the seventeenth century finally cut the head off a great culture, particularly in its most flourishing domain in the North. Thus, too, it contributed to the long-term decay of Scotland’s Gaelic heritage, with its close historical connections to that of Ulster. The fate of Montrose’s ally, Alasdair MacDonald, of Dunyveg and the Glens of Antrim, son of Colkitto and successor to the tradition of the Lords of the Isles, should remind us that the tragedy of Gaelic was played out on both sides of the North Channel. If at last there are still glimmering hopes for a slow outbreak of peace in Ulster in the early twenty-first century, it is nevertheless salutary to reflect on how sour things have been for so long.

After 1603, Scotland, while sharing a king with England, remained a distinct kingdom, but a kingdom without a king. At that time, we have to acknowledge that a kingdom without a king was a practical contradiction in terms. For then the king was the active head of government as well as formal head of state. Kings depended on ministers, but on ministers as the servants of the royal will and policy, advisers on its formation. They were not, as they have become, the true wielders of power, wielding it only formally in the monarch’s name. Of course, this is over-stated. Scotland was not quite a kingdom without a king; it was a kingdom with an absentee king. The absentee king was somewhat precarious on the throne of his larger and more prosperous realm. Political prudence required a policy primarily aimed at sustaining favourable opinion there, while not pressing minority realms beyond the limits of serious resistance. James VI and I could achieve this, and so could Charles II after the restoration. Charles I and James VII and II failed comprehensively.

Certainly, things began to change in the later seventeenth century, following on the Revolutions of 1688 and 1689. These laid what hindsight shows to have been the early foundations of fully constitutional monarchy. That it should have turned out so was not a fore-ordained certainty, for who can say how it would all have worked out but for the succession in 1714 of Hanoverians with a manifest lack of personal charisma, and little ability or (p.253) inclination to do business in the English language? Up till then, and certainly throughout the seventeenth century, kings had been in any event active political, ecclesiastical, and military leaders, whether successful or unsuccessful in these roles.

A king’s or a queen’s ministers were the advisers they chose for themselves. These ministers were obliged at least sometimes to consult parliaments, and they had to be able to keep some kind of grip on parliaments. They had also to keep a weather eye on the risks of impeachment. The clear outcome of the English Civil War, achieved at the Restoration, was the demonstration that parliament had to authorise the supply of financial resources to the king. In England this was a potent weapon. In Scotland, against monarchs with an English base but shared Scottish legitimacy, it was less so. The Scottish finances could go quite far awry for quite a long time without immediate catastrophe for the head of state.

The point of this all became clear during the final struggles of the Scottish Parliament in the first six years of the eighteenth century. The arguments by Fletcher of Saltoun for election of Scottish ministers by the Scottish Parliament and for the monarch’s duty to assent to measures carried by a majority in parliament no doubt seemed at the time to be extravagantly republican. But in the twentieth century they gradually came to seem commonplace, and it is striking how much of Fletcher’s original ideas have come to pass in the devolution legislation in Scotland.

More generally, in Westminster as well as Edinburgh and elsewhere, real power has come to be invested in parliaments, and thus in the governments that command parliamentary majorities through the dominance of political parties. By this means, a kind of last-resort sovereignty has effectively shifted to the people themselves as the sovereign electorate within parliamentary systems of government. None of this was remotely true for seventeenth-century Scotland. Parliaments were founded on a narrow base mainly of aristocracy and gentry. They were open to all sorts of manipulation. Indeed, in Scotland, James and his successors were able to manage parliamentary business as they chose, through the Lords of the Articles, whose power was curbed only in the last two decades of the old Scottish Parliament following the 1689 Revolution.

A very rough equivalent of the Lords of the Articles can be found in the business bureau of the contemporary Scottish Parliament, save for the democratic legitimation of the latter. James not implausibly claimed that he could sit in London and govern Scotland with a pen more effectively than his predecessors had ever been able to do with the sword. This is the essential reason why the Union of the Crowns was a disaster for Scotland. Scotland entered the seventeenth century at a time of a new intellectual quickening, triggered by the nova erectio, or refoundation, of the ancient universities in Glasgow, (p.254) St Andrews, and Aberdeen and by the foundation of Edinburgh University. But the removal of political power and court patronage from its heart was a discouraging circumstance, and the wars of religion and wars concerning royal succession that plagued the next hundred years added their dire effects.

Moreover, since the king was the real head of government, he was inevitably going to pursue the same policies and alliances in relation to all three kingdoms. There was little possibility for independent action in any one. It was inevitable that the interest of the largest would predominate in all decision making. The classic example of this was provided by the Darien Disaster in the 1690s. The Company of Scotland set out on the ambitious project to establish a trading colony on the Darien isthmus, strategically placed for both Pacific and Atlantic trade. Nearly everyone in Scotland with available capital invested it in the project.

English colonists in North America objected, Spain was against it, and King William, influenced by his English ministers, decided to let the Scottish colonists suffer their own fate without naval or military assistance. Commercial Scotland was ruined overnight. Whatever the venture’s prospects would have been in favourable circumstances, the opposition of Scotland’s only effective government made sure of the very worst of possible outcomes. In the aftermath, Scots learned the lesson. Unless the Scottish Parliament could elect Scotland’s ministers, there would never be a possibility of independent and answerable government in Scotland. That might need a re-separation of the Crowns, and, if so, let it be so.

The English government recoiled in horror from that prospect, negotiations for union were put in hand, armies marched towards the Scottish border, Scottish Commissioners were persuaded that a treaty for an incorporating union was the only alternative to conquest, and the imposition of yet worse terms. The parliament reluctantly approved the agreed Articles of Union, and on 1 May 1707 the old Scottish kingdom breathed its last. So did the English, but nobody noticed, because it did not really. New Great Britain was old England writ a little larger. Regal union under seventeenth-century assumptions had an inexorable drive towards either of two resolutions: renewed separation under separate monarchs, with possible resumption of old hostilities; or transformation into full political and parliamentary union. Despite fierce popular opposition, especially in Scotland, incorporating union was the chosen outcome in our case.

The relevant seventeenth-century assumptions, however, do not hold good in relation to constitutional monarchy as this has evolved, especially in the context of the Commonwealth. The development of constitutional monarchy has made it possible for genuinely independent countries to share a formal head of state if that is what they wish. Formally, Queen Elizabeth is Head of State in Australia, New Zealand, and Canada, as well as in the (p.255) United Kingdom. Democratic parliamentary government having prevailed, sharing a head of state is not a bar to the genuine mutual independence of countries. They elect their own parliaments and democratically chosen governments, and these pursue their own policies broadly as mandated elec-torally. The same headship of state is compatible with very different political approaches in different countries over the same stretch of time. There is surely a lesson here for contemporary Scotland, though it is an open question whether anyone wishes to learn and profit from it. The expansion of the present Scottish Parliament’s powers to completeness, coupled with a negotiated and consensual severance of responsibility of the Westminster Parliament and UK government, would lead to the same state of affairs obtaining as between other mutually independent monarchies in the Commonwealth. Membership of a successor state in the European Union under its prevailing constitutional provisions concerning accession of states to membership would be a matter of further negotiation and adjustment, but not on the face of it particularly difficult or controversial.

In fact, the real difficulty, when you press the argument to its conclusion, does not concern a shared head of state, if this involves a constitutional monarch exercising only formal powers under a constitution. The problem of the Union of the Crowns was a problem arising from having a single head of government for two polities with two parliaments.

Were we to look for a contemporary analogy to this, where might we find it? The answer I would tentatively offer is this: in the United Kingdom under devolution. Especially under a Prime Minister with the remarkable personal traits and political effectiveness of Mr Blair, it is clear that there is only one UK head of government. Scotland’s, or indeed Wales’s First Minister is by no means comparable to the leader of a parish council. But the pre-eminence of Blair over the whole scope of UK policy is scarcely in doubt. The military engagement in Iraq seems to me a striking illustration of this.

The present system works so long as party ties make more or less unquestioned the loyalty of the head of a devolved Scottish government to the head of the United Kingdom government. Think how different things would be were Mrs Thatcher to return to power, or even Mr Howard to score a shock victory at the next UK General Election. And then think again of the prospect of a Scottish National Party leader’s taking office in Scotland in 2007, were that to happen after the May 2007 election in the tercentenary year of the incorporating union.

The present contribution is offered primarily as a scholarly, not a political one. Let me therefore not even seem to engage in polemics or even partisan rhetoric. It is enough if it has sketched grounds for taking seriously the question what ‘new unions for old’ might mean.


Proceedings of the British Academy, 128, 249–255. © The British Academy 2005.

(1) See N. MacCormick, Questioning Sovereignty: Law, State and Nation in the European Commonwealth (Oxford, 1999), ch. 12, which elaborates some of the present arguments.