How the Treaty of Union of 1707 has been breached

We must not confuse the Treaty of Union with the English and Scottish acts that brought about the Union. That is simply because the treaty – which was real, despite what some Unionists argue, and even Queen Anne herself said so – ceased to exist once both countries passed the Articles of Union into their domestic laws to create the Kingdom of Great Britain.

Since then, legally, technically and constitutionally, all sovereignty in the United Kingdom is indeed vested in the Westminster Parliament as the UK Supreme Court has confirmed.

That is because the Acts of Union make it clear that the UK Parliament can do what it wants to Scotland with impunity, so every ostensible breach of the Union legislation is nothing of the sort as Westminster – very much based on the modus operandi of the previous English parliament – can do what it likes in this so-called “partnership” of equals.

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Breaches of the letter and spirit of the Treaty of Union – recognised by its perpetrators as a genuine international treaty between two nation-states – are a different matter. And there have been plenty of them in the past 317 years.

The first major breach of the Treaty and Acts of Union happened just five years after the Union took effect on May 1, 1707. In 1712, Parliament acted to make the House of Lords able to act as a court of appeal in Scottish civil cases, despite the express legislation that Scots law was inviolable and supreme.

In one fell swoop, the Court of Session was no longer the highest legal authority and it has to be said that many Scots – though not Scottish lawyers – were pleased with that outcome, given the poor opinion of Scottish judges at the time. The Supreme Court itself should rule on whether it is a breach of the treaty …

In the same year, Parliament passed the Toleration Act which allowed Scottish Episcopalians to use English liturgy. Outraged Presbyterians protested that this act was in direct conflict with the law passed just before the Union, and confirmed by the treaty, which effectively made the Church of Scotland the state religion of Scotland.

One of the breaches that many people point to concerned a Mint for Scotland. The act stated: “A Mint shall be continued in Scotland, under the same rules as the Mint in England.” It never happened and 317 years later we are still waiting on one.

Despite the treaty and the acts specifically stating they should continue, following the Jacobite Rising of 1745, in 1747, Parliament passed the Act For Taking Away And Abolishing The Heritable Jurisdictions In That Part Of Great Britain Called Scotland. The sub-title said it all: “and for rendering the Union of the two kingdoms more complete”. Centuries of Scottish traditions and culture that had been guaranteed by the treaty disappeared overnight at Westminster’s behest.

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In 1800, the Union between Great Britain and Ireland was negotiated, taking effect the following year.

Despite having a similar population, Ireland was given 100 MPs, compared to Scotland’s 45. So much for the partnership of equals …

Following the accession of the late Queen Elizabeth to the throne, Scottish nationalist John MacCormick took a case against the Crown that her decision to call herself Elizabeth II was a breach of the Act of Union as Scotland had never previously had a Queen Elizabeth.

The Court of Session dismissed his case, although it did elicit a remarkable statement by the lord president, Lord Cooper, that “the principle of unlimited sovereignty of Parliament is a distinctively English principle and has no counterpart in Scottish constitutional law”.

If only, your lordship, if only …

Despite winning only 23 seats in Scotland in the 1970 General Election, the Conservative government of Ted Heath took the UK into the European Communities in 1973. He was right to do so and the 1975 referendum confirmed that, but going ahead without specific Scottish consent was surely against the spirit of the Treaty of Union.

In that same year of 1975, the Labour government of Harold Wilson abolished the status of royal burghs in Scotland despite the treaty and the acts guaranteeing that status in perpetuity. As the act stated: “That the rights and privileges of the royal burghs in Scotland as they are, do remain entire after the Union, and notwithstanding thereof.”

Let me quote you Article 18 of the Act of Union: “That the laws concerning regulation of trade, customs, and such excises, to which Scotland is by virtue of this treaty to be liable, be the same in Scotland, from and after the Union as in England.” For excises, read taxes.

Step forward Margaret Thatcher and her hated poll tax. Need I remind you it was imposed on Scotland before England? And yes, she was warned at the time that she was risking the Union because she was breaking its terms.

There have been recent examples of the Act of Union being quoted in legal and political matters.

In the run up to the Alcohol (Minimum Pricing) Act 2012, drinks industry leaders such as the Scotch Whisky Association argued that the new law was a breach of the Acts of Union. They lost, but the point was taken seriously.

And when Boris Johnson threatened the use of Henry VIII’s powers to force through legislative changes following Brexit, why did so few people protest that he was using powers that ceased to exist in 1707?

We Scots are stuck in a time-warped mess of Westminster’s making, so is there any way we can break out of this impasse?

I have been working on a possible solution for some time now and am nearly ready to publish my ideas. It will take a few weeks to finish my project – which is very much based on the history of the Union and how other nations have dealt with similar problems – so keep reading and hopefully, we can find a way forward to independence.