In his chapter in The Oxford Handbook of Scottish Politics, Iain McLean explores Unionism in Scotland, going back to 1707 and the Act of Union to show how the themes present during these times influence contemporary debates.
My chapter of The Oxford Handbook of Scottish Politics explores varieties of Unionism in Scotland. Since 1707, the Union of the United Kingdom has been a fact of life in Scotland. It lay there mostly unnoticed until the SNP first became a political force in the 1960s. It now faces its greatest challenge since 1746.
To analyse Unionism, let’s take a deep dive back to 1707, where we find some very contemporary themes.
In 1707 the Earl of Roxburghe helped to swing the last Scottish Parliament in favour of Union. He wrote:
The motives will be, Trade with most, Hanover with some, ease and security with others, together with a general aversion to civil discords, intolerable poverty and … constant oppression
The motives he listed are still there. They help us discern three shades of present-day Unionism. Let us call them Clerk of Penicuik Unionism, Defoe Unionism, and Dicey Unionism.
Sir John Clerk of Penicuik was one of the Scottish Union negotiators in 1707. He was an economist and political realist. His Scotland suffered intolerable poverty due to bad harvests and the Darien disaster of 1699-1700, which had decimated Scotland’s capital stock. He saw union as an economic necessity, but he was also one of the few in 1707 who saw that Scotland could gain from free trade and access to markets. Clerk-of-Penicuik unionism today stresses the benefits to Scotland of the UK single market, and the guarantee of uniform social protection. The most notable modern Clerk-unionist is Gordon Brown.
Daniel Defoe (yes, that Daniel Defoe) was the English government’s agent in Scotland in 1707. He helped swing the leaders of the Church of Scotland by promising them that their independence would be guaranteed in the final (English) Act of Union, and it was. The Act protects the ‘true Protestant religion’ in Scotland and a different ‘true Protestant religion’ in England. Defoe wrote:
[N]othing is more plain than that the articles of the treaty . . . cannot be touched by the Parliament of Britain; and that the moment they attempt it, they dissolve their own Constitution…. And as the Parliaments of Great Britain are founded, not upon the original right of the people, as the separate Parliaments of England and Scotland were before, but upon the Treaty which is prior to the said Parliament, and consequently superior; so, for that reason, it cannot have power to alter its own foundation.
Thus, 1707 was not an incorporating union, but one that united two independent entities into a new one, of which the Acts of Union are the fundamental constitutional law, superior to all other.
The most prominent Defoe unionist in recent decades was Lord President Cooper (the senior judge of the Court of Session). In a famous case (MacCormick v. Lord Advocate) he opined that unlimited sovereignty of Parliament was inconsistent with the Act of Union according to the ‘elementary canons of statutory construction’. Some parts of the Act of Union were fundamental constitutional law, unrepealable by later Acts, so long as the UK continued to exist.
Oh no, said A. V. Dicey, constitutional lawyer and Unionist ideologue at the turn of the 19th and 20th centuries. The Act of Union has no more authority than the Dentists Act 1878. A later statute repeals an earlier, either expressly or implicitly. Dicey unionism is more practical (and pugnacious) than intellectual. Dicey’s own view was inconsistent – he bitterly opposed Irish Home Rule in 1914, claiming that Parliament had no right to enact it. The Patronage Act 1711 was an act of Diceyan unionism. It restored lay patronage in the Church of Scotland in defiance of the protections in the Act of Union (and against the majority vote of Scots MPs – the ‘West Lothian Question’ is not new).
The UK governments elected since 2015 have also upheld Diceyan unionism, notably in giving the Article 50 notification to withdraw from the Union without seeking the consent of the Scottish Welsh, or Northern Irish parliaments.
In the first constitutional case brought by Gina Miller against the UK government, Defoe unionism scored one win and one loss. In requiring Parliament to enact permission to withdraw from the EU, the court accepted that the (Scottish) Claim of Right Act 1689, still in force, forbids executive acts that ‘Cass annul and Dissable lawes’. But the court refused to order the UK government to consult the Scottish Parliament. Its refusal turned on the word ‘normally’ in the Scotland Act 1998 as amended in 2016:
28(8) ..[I]t is recognised that the Parliament of the United Kingdom will not normally legislate with regard to devolved matters without the consent of the Scottish Parliament
This section was inserted in the Act by the Scotland Act 2016. It was a product of the Unionist ‘Vow’ after the narrow ‘No’ to independence in 2014. It aimed to make statutory the ‘Sewel convention’ of not legislating on devolved matters without Scottish Parliament consent. But Miller I showed that it was an empty phrase. The court held that it was not its place to judge what was normal: that was up to politicians.
As Dicey unionism asserts the omnipotence of the UK Parliament, it is not surprising that there are no Dicey unionists in Scotland. The constitutional struggle is therefore between Defoe unionists and nationalists. The more the UK government behaves like the sponsors of the Patronage Act 1711, the stronger becomes the nationalist case against Defoe unionists. Prime Minister Johnson has hailed the Union as the ‘awesome foursome’, but some of his government’s acts seem to belie this: such as a cap (now lifted) on English students attending Scottish universities, and a White Paper asserting that the UK Government is the only body that can police the UK internal market. Still, at least he may procure a bridge to Northern Ireland.
Where are Clerk unionists, meanwhile? They remind anybody who will listen that the fiscal position of an independent Scotland will be dire. Without the Barnett comfort blanket, it will have to reduce spending or increase taxation, or both. How will it bear its share of the (now enormous) UK debt? And what interest rate will it pay on it? There are no easy answers to those questions. As Sir John Clerk of Penicuik would have pointed out, were he around today.
Iain McLean is Professor of Politics at Oxford University and a fellow of Nuffield College, Oxford
'Understanding the Union' was published in The Oxford Handbook of Scottish Politics in August 2020 in the UK and Europe by Oxford University Press.
Photo by Tatiana Rodriguez on Unsplash