The Independent guide to the UK constitution: The Union

James Cusick considers the troubled history of Union and devolution, and wonders if the four nations can be kept together

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Indy Politics

In London’s Olympic velodrome, seven months before Scotland’s 2014 vote on whether to exit or remain part of the United Kingdom, David Cameron struggled to define what was at stake. He called the UK an “intricate tapestry”, a 300-year-old collaboration of inter-nation relationships and shared values that had been built “brick by brick”.

Leaving aside the political hyperbole and the metaphorical confusion, the Prime Minister was correct in acknowledging there is no single piece of constitutional architecture, no one legal instrument that glues the UK together.  Regardless of the emotional allure of the scepter’d isle, the fusion of the UK’s constituent parts is, as the historian Linda Colley has pointed out, a product of “constantly refurbishing and reinventing” the core “idea of union.”

However, this ever-evolving historia Britanniae does not mean that the Union’s story is devoid of points of significant invention.

With England a unified kingdom from the 10th century, and Scotland almost under central control from the 13th, the attraction of a formal conjoining was evident early on. In 1289 the twin treaties of Birgham and Salisbury were almost delivered. Ambassadors from the English king, Edward I, negotiated a deal with a Scottish parliament representing Margaret, the Maid of Norway, who at the age of three had been given the Scottish crown. The plan: Edward’s son would marry Margaret and the two kingdoms would unite.

The legal backdrop now looks familiar: the Scots would retain what they owned, “separate and divided from England according to its rightful boundaries, free in itself and without subjection.” The Scottish Parliament and the national church would remain distinct entities. Britain, great or not, looked like arriving 400 years earlier than it did. Only the death of the young Margaret in Orkney, and later suspicions about the limited independence guarantees offered by the English, saw the plan shredded.

By the time Robert Bruce had seized the Scottish throne, there was still uncertainty over succession, regardless of significant victories over the English such as Bannockburn in 1314. The Declaration of Arbroath in 1320 was intended to address this. Sent to Pope John XXII in Avignon, it used a “language of liberty”, as Colley calls it, that resonated beyond its basic purpose. “For, as long as a hundred of us remain alive, never will we on any conditions be subjected to the lordship of the English.”

If the historian Simon Schama is correct, and “the great theme of British history is the fate of freedom”, then the Arbroath document is pivotal.

Wales, once regarded as a problematic principality, came under London’s control ahead of Scotland or Ireland.  The initial 14th century conquest by Edward I came at some expense, and for the next 200 years was largely seen as an incomplete  annexation. The 1536 Act of Union, more corporate raid than union, and another Act seven years later, ended that fragmented colonisation. Wales was declared “for ever from henceforth incorporated, united and annexed to” England.  English law and language now ruled and Wales’ representative politicians decamped to Westminster. Somewhere in between, the Welsh name Tewdwr became subservient to the English Tudor, although Wales’ cultural identity was never mislaid.

Despite the administrative posturing of the Arbroath Abbey document, the fall-out from the succession confrontation between Elizabeth I and the daughter of Scotland’s James V and Mary of Guise –better known as Mary Queen of Scots – advanced the elusive Union of Crowns. In 1603 a Scottish king, Mary’s son, James VI, became the single sovereign of England and  Ireland, Scotland and Wales. Paintings by Sir Peter Paul Rubens on the ceiling of the Banqueting Hall in Whitehall show the new king, James I, confident in his belief that his unified territory was Dei Gratia, blessed and approved by God. The political reality was different. Scotland and England still had their separate parliaments, and within half a century England was gripped by civil war, James’ son Charles was executed (part of Oliver Cromwell’s “cruel necessity”), and when monarchy returned the instability continued.

But throughout, as Schama has pointed out, although governance may have seemed perched in a half-way house between tyranny and democracy, there was still parliament, and there was still the law.

The 1689 Bill of Rights in England, and the Claim of Right in Scotland, saw the Edinburgh and London parliaments agree on the crown by-passing James II and going to Prince William of Orange.  It was, clearly, a shared crown. (Ireland, too, thanks to an earlier 16th-century proclamation and the expansion of English rule, faced a new era of Protestant authority.)  The wider resonance, however, was the principle of parliamentary supremacy: the English  and Scottish legislatures, though close on their fundamental beliefs, were still divided as to what ever-closer union would mean.

The Act of Settlement in 1701 secured a Protestant monarch for England, an invited Hanoverian. Three years later, with the Scottish treasury suffering meltdown from a failed attempt at establishing a colony in Panama, and amid fears of famine at home, Edinburgh passed the Act of Security, granting Scotland the right to challenge England’s choice of successor. This was an effective political threat, which told Westminster to open its colonial trade to struggling Scottish merchants.

It wasn’t a zero-sum game: both sides had something to gain. In Whitehall in April 1706 in a location called The Cockpit  (where Henry VIIII had once staged cockfighting), another type of battle began.

At the end of three days of negotiations between appointed commissioners from England and Scotland, where neither side met face-to-face, the Scots were offered terms on what we now call the Union: “England and Scotland be forever united in one kingdom by the name of Great Britain.”

The flag design was agreed, as were weights, measures, heritable offices and the numbers of peers and MPs in Westminster. Scotland was offered tax exemptions, and the preservation of its own legal, banking and education systems. The Scottish kirk was also left unchallenged.

Compensation – and, depending on your perspective, bribes – were sent north to those who could influence the union vote in the Scottish parliament. When the draft treaty was published, riots broke out across Scotland. A draft document was burnt by the hangman in the centre on Edinburgh. A month later, however, the Act of Union passed, in January 1707, and two months on the Scottish Parliament adjourned itself.

According to Colley, what was agreed was “flexible and in many respects only a partial union which explains why it has endured for so long.”

But it did not merely endure. It grew. In 1800 and 1801 the Acts of Union, addressing the limitations of the Irish parliament and the emergence of a new generation of nationalists, created the single polity of Great Britain and Ireland (which had hitherto been linked only loosely via the monarchy). This structure endured until the failures of Home Rule in the late 19th century, culminating in the Easter Rising in 1916 and the arrival of the Irish Free State in 1922 – leaving only the six counties of Northern Ireland as part of the Union.

And that, superficially, is how the Union remains. But what will the next chapter the UK’s evolving island story look like? The Scotland Act (1998) devolved primary law-making power back to Scotland, leading to its adjourned parliament reconvening for the first time in 300 years. Wales was also given limited devolution the same year, with its powers further enhanced in the Government of Wales Act (2006).

According to Colley, these devolutionary measures were “insufficiently thought out” and could result only in demands for even greater autonomy.

If there have been game-changing events which confirm this thesis, they include the Scottish Nationalist Party gaining overall control of the Edinburgh parliament; the party’s push for the 2014 referendum; and its unprecedented success in the general election of May 2015. All point to a fragile rather than a robust Union – whose immediate political future must be in doubt.

As for the constitutional precepts that might influence the future of the union, the uneasy truth is that this still-evolving patchwork of relationships justifies forecasts of both survival and fragmentation. It is politics, not the constitution, that will determine the future. The only certainty is that everything will not remain the same.

Key texts: The united kingdom

A | From the Declaration of Arbroath (1320; translated by Sir James Fergusson):

“…outrages without number which he [Edward I] committed against our people, sparing neither age nor sex, religion nor rank, no one could describe nor fully imagine unless he had seen them with his own eyes.

“But from these countless evils we have been set free… by our most tireless prince, King and lord, the lord Robert.

“To him, as to the man by whom salvation has been wrought unto our people, we are bound both by his right and by his merits that our freedom may be still maintained, and by him, come what may, we mean to stand.

“Yet if he should give up what he has begun, seeking to make us or our kingdom subject to the King of England or the English, we should exert ourselves at once to drive him out as our enemy and a subverter of his own right and ours, and make some other man who was well able to defend us our King; for, as long as a hundred of us remain alive, never will we on any conditions be subjected to the lordship of the English.”

B | From Y Deddfau  Cyfreithiau yng Nhgymru (Laws in Wales Acts) 1536 and 1543:

“His Highness therefore of a singular Zeal, Love and Favour that he beareth towards his Subjects of his said Dominion of Wales, minding and intending to reduce them to the perfect Order, Notice and Knowledge of his Laws of this Realm, and utterly to extirp all and singular the sinister Usages and Customs differing from the same, and to bring the said Subjects of this his Realm, and of his said Dominion of Wales, to an amicable Concord and Unity…

“That his said Country or Dominion of Wales shall be, stand and continue for ever from henceforth incorporated, united and annexed to and with this his Realm of England.”

C | From the Union with England Act 1707:

“That the Two Kingdoms of Scotland and England shall… hereof and forever after be United into One Kingdom by the Name of Great Britain And that the Ensigns Armorial of the said United Kingdom be such as Her Majesty shall appoint and the Crosses of St Andrew and St George be conjoined in such manner as Her Majesty shall think fit and used in all Flags Banners Standards and Ensigns both at Sea and Land.

“That the United Kingdom of Great Britain be Represented by one and the same Parliament to be stiled the Parliament of Great Britain.

“That all the Subjects of the United Kingdom of Great Britain shall from and after the Union have full Freedom and Intercourse of Trade and Navigation to and from any port or place within the said United Kingdom and the Dominions and Plantations thereunto belonging…

“That the Court of Session or Colledge of Justice do after the Union and notwithstanding thereof remain in all time coming within Scotland as it is now constituted by the Laws of that Kingdom.”

 D | From the Union with Ireland Act 1800:

“That Great Britain and Ireland shall... be united into one kingdom; and that the titles appertaining to the crown, &c. shall be such as his Majesty shall be pleased to appoint. That the United Kingdom be represented in one Parliament. That such Act as shall be passed in Ireland to regulate the mode of summoning and returning the lords and commoners to serve in the united Parliament of the United Kingdom, shall be considered as part of the treaty of union.”

E | From the Scotland Act 1998:

“There shall be a Scottish Parliament.”