How the Union came within four votes of ending almost as soon as it began

To me the principle is the same: two sovereign nations combined to form a political union, a unitary state, in 1707. The UK did much the same in 1973 – a sovereign state joined with others in what was then the European Economic Community and which later became the EU. As with the 1707 Union, in the EU there was the surrender of some sovereignty for a presumed greater good, and while the UK state has been in existence for much longer than the EU, the principle in a democratic polity remains the same – nations and states have the right to join a Union, and they should always have the right to leave.

That’s why the draft independence referendum bill published yesterday is all well and good, except for one vital and rather important missing ingredient – it does not say HOW that referendum is to be achieved. Too many people who should have known better have painted themselves into a corner in which Section 30 is the only way forward – and Boris Johnson or his successors only have to say No. Then what happens? There is no clue in the actual bill itself, but presuming that the next Scottish government votes for a referendum, then the case for a legal and binding referendum will have to be made in the UK Supreme Court. If the case is lost, we who desperately want independence will have nowhere to go except the murky waters of international law.

So here is a lesson from history. There is a precedent for attempting to end the Union via the Westminster Parliament. The fact is that the Union was fragile from the outset and, as I wrote last week, only just survived several times until well into the 18th century. I showed last week how the abortive Jacobite Rising of 1708 was probably the greatest missed opportunity to end the Union – that was an explicit pledge by King James VIII and III as he was known in France and Rome – and even by 1710 it was clear that the promised immediate economic boom, supposedly encouraged by greater trade and the protection of the Royal Navy, just wasn’t happening.

In his book Scotland: A History from the Earliest Times, Alistair Moffat neatly sums up what really took place immediately after the Union: “Because the idea of the Union had been so unpopular before 1707, the commercial benefits of an open border and the beginning of free trade with England and her burgeoning empire were overstated. After 1707, the Scottish economy grew only very slowly and in some sectors contracted, as industries, such as paper-making , salt-making, woollen manufacture and candle-making, seemed particularly to suffer from stronger English competition.”

As has so often happened in Scottish history, religion reared its head, and provoked an extraordinary crisis which nearly ended the Union practically before it was a pup. The Church of Scotland had opposed the Union but eventually accepted it when the Scottish Parliament bought off the Kirk with the Protestant Religion and Presbyterian Church Act 1707.

This Act was passed to ensure that the Kirk would not be affected by the Union. The long title of the law sums it up: “An Act for Securing the Protestant Religion and Presbyterian Church Government”. In other words, the Kirk would remain the state religion of Scotland – proof yet again that the Scottish nation never died – and its system of church government presided over by the General Assembly would continue indefinitely.

That may actually have suited the head of the Church of England, Queen Anne, as with Scottish Presbyterian support she was able to get her most precious desire passed in the form of a law. Indeed it was one of the first pieces of legislation of the new Union Parliament. The Succession to the Crown Act 1707 is again summed up by its long title – “An Act for the Security of Her Majesties Person and Government and of the Succession to the Crown of Great Britain in the Protestant Line”.

The Act required that when Anne died, members of the Privy Council and other government officials would be forced to proclaim as her successor the next Protestant in the line of succession to the throne – it became high treason for any of them to fail to do so. When the pro-Jacobite Tories took over the reins of government in 1710, they were clear from the outset that the Kirk was one of their targets.

READ MORE: Back in the Day: How the Act of Union barely survived its formative years

THE Church Patronage (Scotland) Act 1711 or Patronage Act was “an Act to restore the Patrons to their ancient Rights of presenting Ministers to the Churches vacant in that Part of Great Britain called Scotland”. Notice the “regionalisation” of the UK even that early on … and it was a frankly disgraceful law, not least because it overturned the guarantees made by the Scottish Parliament to the Kirk, whose members were in the main absolutely seething about this intervention into church affairs.

To make it clear, the High Church Anglican Tories hated Presbyterians everywhere and were determined to bring all Protestants into line with their policy of imposing bishops. The Scottish Tories supported the Westminster Government because they wanted the Scottish Episcopalians to flourish, and it was an Episcopalian minister, James Greenshields, who challenged the rights of presbyteries to stop him preaching and attending to his flock in Edinburgh. He was hauled before the Edinburgh presbytery and eventually jailed for seven months, probably because the Kirk saw his preaching as a direct threat to their rule.

Greenshields took his case to the House of Lords and won his appeal. But the Government had had quite enough of the Kirk and promptly passed the Patronage Act and added the Toleration Act into the bargain – a law that permitted Scottish Episcopalians to practise their faith without Kirk control as long as its adherents agreed to pray for the monarch. When the laws took effect in 1712, it created a schism between the Kirk and their Protestant cousins – the Episcopal churches were soon called English kirks.

AS Professor Sir Tom Devine writes in his excellent book The Scottish Nation: A Modern History: “All this outraged the Kirk and seemed to undermine the act of security guaranteeing Presbyterian rights in the event of union, an enactment central to the acceptance of the treaty itself. But, in addition, the legislation of 1712 raised the issue of the nature of 1707 and the extent to which the treaty was an inviolate, fundamental law or subject to change at the whim of the sovereign legislature in Westminster.”

For me, Devine’s acute summary of the situation in 1712 sums up the very nature of the current dispute over the continuation of the Union – were the Acts of Union “inviolate fundamental law” or were they subject to the Westminster Parliament’s interpretation of its sovereignty? We need only look back to Lord Richard Keen’s statement before the UK Supreme Court in July 2018: “The UK Parliament is sovereign, the Scottish Parliament is not.” It’s worth noting that even a top Tory like Keen could not stomach Boris Johnson’s government breaking international law and he resigned from his position as advocate general.

To pay for the English war of the Spanish Succession that had suddenly become a British war – against Scotland’s ancient ally France – the government in London decided that, despite promises to the contrary contained in the Acts of Union, Scotland would have to pay its share of the taxes that were financing the war. There was also an increase in customs and excise duties, and the excuse used by the Westminster Government was an undoubted problem with smuggling on an industrial scale.

It was all too much for Scotland’s peers and MPs. As I wrote last week, even the Earl of Mar, who had been strongly pro-Union, had written in 1711 to Queen Anne to tell her about how the Union was failing Scotland.

By the end of 1712, the Scottish representatives in Westminster were sickened by the increases in taxation and especially the attacks on the Church of Scotland. When the War of the Spanish Succession finished in 1713, the Westminster Government decided to change the basis of taxation across Great Britain and several taxes in particular hammered Scotland – salt, linen, beer, soap and malt. The salt tax was particularly outrageous, as salt produced in Scotland had never been taxed and it was the most widespread preservative in the country. It was the malt tax which was the final straw. The Acts of Union had specifically stated that no malt tax would be imposed on Scotland, but less than six years after the Union, here came the dreaded malt tax that would drastically increase the price of ale, then the most popular alcoholic drink in Scotland. There were minor riots against this tax, and Scotland’s politicians took heed.

The attack on the Kirk and the pockets of everyone in Scotland saw the Parcel of Rogues finally find a conscience and in the front rank was the Earl of Seafield and Findlater, then the Keeper of the Great Seal of Scotland. The Earl had been a very keen promoter of the Union and served as the first Lord Chief Baron in the Scottish Exchequer from 1707. Yet by 1713, his views of the Union were diametrically opposed to his previous opinions.

In the House of Lords, the aristocracy began to meet and plan for a serious bid to end the Union. The Scottish MPs joined in, and it was agreed to bring forward a simple plan – a vote to repeal the Union.

According to Lord Balmerino, as quoted by parliament historian Dr Robin Eagles: “All our consultations will be but silly stuff except they would unanimously take the resolu[tio]n which every man severally says he wishes – to bring in a bill for dissolution of the Union.”

The Duke of Argyll and the Earl of Mar, plus MPs George Lockhart and William Cochrane presented a list of grievances to Queen Anne but she rejected any idea of dissolving the Union. They were left with no option. On June 1, 1713, the Earl of Seafield moved to terminate the Union in the House of Lords. According to Eagles: “He outlined a series of slights that the Scots had endured since 1707, of which the malt tax was the final indignity. The response from the English peers who favoured the Union’s continuance principally underscored its importance in terms of protecting the succession. At this point the coherence of the Scots’ assault broke down as some of their English allies moved in favour of adjourning the debate and suggested that separate legislation should be drafted for protecting the nation. When the House came to divide, the bill for dissolving the Union lost by just four votes, and even then only because of the employment of proxies.”

Four votes. Just four votes. That’s how robust the Union was.