Conrad Russell once observed that the essential problem of the relationship between Scotland and England “could be defined by saying that England could brook no equal, and Scotland no superior.” (James VI and I and his English Parliaments (2011) at 124) Russell described the eventual Parliamentary Union between the two countries thus (ibid. at 126-7):
“In 1707 the English got the unitary sovereign power which they wanted and got it in the form based upon the existing English parliament, with an English majority within it. The Scots got their recognition as a separate sovereign State, both from the form of the Union of 1707 as an international treaty, and from the survival of Scots law and the Scottish church. It is that claim that Scotland is a sovereign nation state which is reasserted whenever the English forget that 1707 was not a ‘perfect Union’…. Scotland in accepting the Union in 1707 remained a nation and as a result any sovereignty in the British parliament could not be national sovereignty. This has always been hard for the English to understand.”
While the Parliament of Scotland – the Thrie Estaits of senior clerics, nobles and merchant burgesses – was abolished under the terms of the 1707 Union, the interests of the Scottish governing classes were preserved by:
(1) England buying up and taking over debts accrued by the “Company of Scotland” after the virtual bankruptcy of the Scottish economy with the failure of the (Bank of Scotland financed) Darien scheme, under which Scotland had sought, in the late 1690s, to establish its own central American colony and trading-post on the isthmus of Panama;
(2) abolishing the Scots pound and creating a common sterling-zone;
(3) providing for a single British internal market and customs union allowing for the free movement of goods, services and people between Scotland and England, and for Scotland’s free access to and trade with England’s growing overseas empire;
(4) creating a common British citizenship;
(5) putting in place constitutional barriers against English law to discourage English lawyers from practising in Scotland, with a view to preserving Scots law as a distinctive legal system within the Union;
(6) confirming and supporting Presbyterianism as the form of constitutional governance within the State-sponsored reformed national church in Scotland;
(7) allowing the Scottish peers to elect some of their number to sit in the House of Lords (this practice of elected Scottish peers continued until the early 1960s when all those with Scottish peerages were also given United Kingdom titles to allow them to sit, as of right, in the House of Lords).
The long-term result of these measures in 1707 was that, in exchange for the effective de-politicisation of Scotland, the constituencies making up the former ruling classes of Scotland could comfortably commit to political Unionism while maintaining those other forms of (de-politicised) nationalism which the Union expressly protected and preserved, namely: legal nationalism (in the case of Scots lawyers); ecclesiastical nationalism (in the case of Scots Presbyterian clerics); and ultimately, under the influence of the works of Sir Walter Scott, a romantic nationalism expressed (in the case of post-Union Scottish military, drawn in the main from the Scottish landed and gentry class) in tartan and bagpipes. But as a result of the 1707 Union compromises, there developed in Scotland a public culture where there was no strong tradition of any active political involvement or engagement in Scotland by the lawyers, clerics, or lairds. Perhaps, most worryingly of all for the health of the nation, there was no proper development in Scotland of public law to ensure that political power be kept within legal bounds.
For almost 300 years after the Union real politics went on elsewhere. Scottish internal affairs were managed by, in effect, a viceroy (originally in the form of the Lord Advocate and latterly with the Secretary of State for Scotland running the shop). Able Scottish politicians went to Westminster and thrived there. But this de-politicisation of Scotland for 300 years meant that the professional classes who stayed on in Scotland (the lawyers, the landed, the journalists, the academics, the bankers and the clergy) simply lost the habitus of direct engagement with political power, since politics was something that happened, not in Edinburgh, but in London.
The end of the British Empire called into question some of the previous economic justifications given for the 1707 Union and the period after the Second World War showed a slow but steady rise in Scottish political nationalism and popular support for Scottish self-government. Devolution brought real politics back to Edinburgh in 1999. And the victory of the SNP in the May 2011 Scottish elections has, increasingly, called into question the largely unexamined post-Union marriage of political unionism with legal, ecclesiastical and tartan nationalism. New tactical alliances are being forged, but Scottish politics itself remains at a young and formative stage. In the absence of a properly developed Scottish public law culture – and with no independent NGO sector to speak of – politics in Scotland is not (yet) used to being checked or called to account in anything other than a political forum. And Scottish public discourse has traditionally been somewhat robust in its expression, in comparison to that of England, with Scots priding themselves on saying what they mean (if not always, on reflection, meaning what they say).
This all makes for a heady and volatile mix, as is plain from the tenor and content of the criticisms of the UK Supreme Court which were made in the course of 2011 by both the Scottish Cabinet Secretary for Justice and by the First Minister for Scotland. Those politicians advocating Scottish independence can now tap directly into the other forms of nationalism (notably Scottish legal nationalism) which had continued to flourish throughout the course of the Union and righteously claim to be defending the “sanctity of Scots law”. One current example of this (perhaps opportunistic) marriage of legal nationalism with political nationalism is the issue of the jurisdiction of the UK Supreme Court, under and in terms of the Scotland Act 1998, to hear and determine “devolution issues” arising out Scottish criminal cases. This has been made a particular bone of political contention by the SNP administration. The Scottish Cabinet Secretary for Justice has, paradoxically, called for (at least a partial) return to the state of the Union as it was before devolution, stating that
“[W]e believe that it is wrong in principle that the decisions of the High Court of Justiciary should be challengeable in a way which was not possible before devolution, and we are concerned about the problems this process of challenge is creating for the Scottish courts. The Scottish Government therefore wishes to restore the position in criminal cases prior to devolution and to stem the flow of criminal cases raising devolution issues to the Supreme Court. As the First Minister indicated, the High Court should be the highest criminal authority in Scotland, as it was prior to devolution.”
Until now, constitutional law in the UK has been “the law that dare not speak its name” precisely because of the contradictions highlighted by Conrad Russell at the outset of this piece between English presumptions and Scottish reservations about the post-1707 constitution. It may be that it is precisely because of its ability to expose these still unresolved tensions – of competing constitutional narratives north and south of the border, notably about the meaning and effect of the 1707 Union – and to rouse those submerged other nationalisms in Scotland, that constitutional law has become the chosen political battleground of the current Scottish government; whether it be on the question of the competence of the Scottish Parliament to call an independence referendum, or on the power of the UK Supreme Court to hear and decide upon Scottish criminal cases. The UK Supreme Court was established under and in terms of the Constitutional Reform Act 2005, section 41(1) of which affirms that “nothing in this …. is to affect the distinctions between the separate legal systems of the parts of the United Kingdom”. But it does seem clear that the UKSC is understood by many to be a new constitutional court, intended in its upholding of the (Union) constitution further to bind the Union. The court’s very iconography – with an official emblem depicting an entwined wreath of plants creating a unity from its four jurisdictions – seems to lend some support to this view. And precisely because of this perception and presentation of it as a “unionist institution”, the UKSC is likely to become the focus of continuing attacks in the new Scottish politics.
By way of postscript, it may be noted that should Scotland ultimately become “independent in Europe”, the marriage between Scottish legal and political nationalism may swiftly come to an end. The constitutional barriers which have protected Scots law within the United Kingdom until now would have to be dismantled by an independent Scotland to allow English lawyers to practise law before the Scottish courts in exercise of their EU free movement rights. Now that would be “the end of an auld sang”.
Aidan O’Neill QC, Matrix Chambers
This publication presents the personal views of the author and not those of The Constitution Society, which publishes it as a contribution to debate on this important subject.