Look up the Treaty of Union and/or search for it on the web and its text is not easy to find. You’d think that something as binding and permanent as that is supposed to be would have a hallowed, prominent place. It is in our National Archives (as the American Constitution is in theirs) but there the resemblance stops.
Whereas the American Constitution is full of high-sounding principles (“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility…”) the Treaty of Union (actually two treaties—one for each country) is, by comparison, an embarrassingly pedestrian, not to say tawdry affair. (Oliver Cromwell actually enacted a pretty serviceable Treaty of Union a half century earlier but the restoration put paid to that and the clarity it might have brought.)
First of all, far from being a hallowed document that enshrined the loftier principles by which the two countries were wedded together, the Treay has been butchered by parliament down the years. Articles V, VIII to XVII, XXII and XXIII were all removed by the UK Public General Act 1906 in which a lot of loose ends like the March Dykes Act, the Lawburrows Act and other lumps of obscure legislation were either ditched or dragged into what was (at the time) modernity.
Of the remaining articles, the most odious is Article II which makes clear that “all Papists and persons marrying Papists shall be excluded from and for ever incapable to inherit possess or enjoy the Imperial Crown of Great Britain”. The remaining articles are replete with a combination of hedging in of vested interests (Article XIX protecting how the Court of Session and the College of Justice are appointed) and of Scots merchants finally getting their mitts on the lucrative English colonies (Articles IV, VI and VII ensuring freedom of trade, equal customs duties and taxation, respectively).
Article XXI preserves the rights and privileges of Scottish Burghs and XXV does the same for the Presbyterian Church (although the Scots had to write in that last bit and haggle over its inclusion). And, most interesting of all Article XX states (in full) “That all heritable Offices, Superiorities, heritable Jurisdictions, Offices for life and Jurisdictions for life be reserved to the Owners thereof as Rights of Property in the same manner as they are now enjoyed by the Laws of Scotland notwithstanding of this Treaty”.
Now, I am no lawyer (Scots or otherwise) but that last seems to enshrine rights that the Scots already have. In that, I would include the tenet enshrined in the Declaration of Arbroath: that the people of Scotland are sovereign. Nowhere in the Treaty can I find any evidence of such rights being taken away and this article would seem to confirm that.
Also nowhere in the Treaty is any article that extends the existing powers of the English parliament to Scotland. Not having any recognisable constitution, what is and is not valid in England is a bit of a punt: unlike the Scots, their legal system rests on precedence so, good luck if you can’t find one. As a kind of catch-all to handle this, the English parliament declared itself sovereign. But I, for one, do not see that extends north of the border, especially where it might conflict with the will of the people of Scotland.
Since that same people of Scotland gave a clear majority to the SNP last May and since all unionist parties accept that clear democratic mandate, it would seem that the SNP are well within their rights to put a referendum to the people of Scotland not just as to whether they wish to remain within the UK but about anything they damn well please. And there IS no such thing as a “legally binding” referendum anywhere in Britain. Just like Westminster can always make new laws over-ruling a decision in England so the Scottish people could at any time over-rule a decision made there.
Just because Scots MPs have served in Westminster does not mean that Westminster can apply its English privileges outside of the country in whose laws those privileges were originally couched. In part because the Treaty of Union was handled like a cheap bill of sale for the benefit of merchants and vested interests on both sides of the border, it is almost incapable of withstanding close scrutiny. Had this been the US, clever lawyers would have shredded it into useless chaff centuries ago.
And so, with nothing but this Swiss Cheese Treaty to build on, I wish the unionist parties well in finding sold ground on which to found their arguments. Deference and obfuscating tradition may have allowed Westminster to have its own way for most of those 300 years. But under any kind of examination, the major holes in the unionist position—no constitution to speak of, a Treaty not fit for purpose and a convention of arrogance that has not—until now—ever been challenged, become fuzzy liabilities that undermine their cleverest argument.
Looking back, people will say the Treaty of Union was dead long before now. It just took the Scottish people, exercising a right they never lost, to choose their destiny. And, unlike many historic documents, one as tawdry and hollow as this one will not be long remembered. Or, the English might display it in their National Archives, along with verse 3 of their National Anthem—you know, the one that sings about “rebellious Scots to crush”.