Scottish by Birth, British by Law

January 14, 2012
There are enormous numbers of people debating the ins and outs of Scotland's mooted independence all over the interweb. A lot of them make valid points, and, unsurprisingly, a lot of them don't. The argument I'm having the most trouble understanding is the one that England (which is not really a valid political entity anyway) has no valid political power over Scotland, because of the 1320 Declaration of Arbroath. This seems a bizarre point of view to put forward. I may be wrong, but I was under the impression that if a signed legal document is later contradicted by a later signed legal document, it's the later one that is valid, particularly if it specifically voids the previous one. Please feel free to correct me if this is, for some reason, not the case. This being the case, then one would imagine that the actual legal position is defined by the 1706 Act of Union. Interestingly, and, some might say, inconveniently for those wielding the Declaration of Arbroath like a broadsword, it specifically states:

"Her Majesty enacts and declares that all Laws and Statutes in this Kingdom so far they are contrary to or inconsistent with the Terms of these Articles as above mentioned shall from and after the Union cease and become void".

That would seem to cover it. No semantic issues with that, as far as I can see.

Right, so, assuming that all declarations regarding Anglo-Scottish relations up to 1707 are voided, the union would appear to be binding. With me so far? Good. One can then add to this, for good measure, the Union with Scotland (Amendment) Act, 1707, which basically strips Scottish politicians of political power over Scotland (a pleasingly semi-oxymoronic concept, if ever there was one). So, we're now in a situation where the UK parliament in Westminster has supreme governing power over Scotland, which is effectively now a province of the aforementioned UK. This being the case, after devolution, only the powers specifically handed to the Scottish regional government are valid.

After all this, the conclusion is this: Scotland is, categorically, part of the UK, and, fundamentally, under the provisions of the various legislation, only the UK parliament can enact a binding referendum on independence. Alex Salmond keeps on saying he's got a mandate. That, in fact, is true. He's the democratically-elected leader of Scotland. What he hasn't actually got is the power. And a mandate's not much use without power.

So, that's the legalities dealt with. Now, on to the practicalities. A whole other can of fetid stinking worms on their way here…

There are many people on varying interweb-fora peddling the theory that Scotland pays more than its fair share in taxes. Scotland has 8% of the population, they say, but pays in 10% of the tax. True. No arguments there. What they all, to a man/woman/child/chimpanzee/trilobite fail to mention, is that, as a result of the complexities of the Barnett formula, they actually receive more government funding per head of population than anywhere else in the UK. Were they to secede from the UK, the Scots would have quite a bit less money to spend. They would probably have to do away with free university education, for a start.

The economic factor is by no means the only issue that they'd have to deal with. For one, they would have to independently apply to join the EU, and would not have the option of not joining the Euro (assuming it still existed). They would also have to negotiate trade agreements, set up and staff embassies across the world, conjure border controls out of nowhere, and, crucially, somehow magic an army, navy and air force into existence.

What, for example, would happen to our flag? The Union Flag has been around for over 400 years, and it's one of the most recognisable in the world. Would we take the Cross of St. Andrew off it? We'd be left with a hideous red and white travesty, resembling the one below (although arguably we could actually finally add bits of the Welsh flag to it). I don't think we want that. No, I think if the Scots want to secede, we'll keep the Union Flag, thanks, and they can design themselves a new one. After all, if they want to be independent from the Union, they should have a new start in every way.

Broken Union Flag

Alex Salmond and his clan have made it clear that they would like to become a Commonwealth Realm (like Australia and Canada); keeping the Queen as head of state. That's all well and good, but one suspects Her Majesty is unlikely to take kindly to having to break out her passport to go on her summer holidays. Apart from anything else, it's not really the same; they are part of the parent country of the Commonwealth, not an ex-imperial colony. If I was in charge, I'd say no to that status, make them apply for Commonwealth membership, and then reject their application on the grounds of disloyalty. OK, that might be a bit much, but I still think the sentiment is the right one.

The challenges for an independent Scotland would plainly be enormous; some might say insurmountable. It's a big ask for any government to manage that transition smoothly and successfully.

The reality is, however, they are very unlikely to have to do so. The likelihood is that, regardless of when the referendum occurs, the answer will be no. The required majority for such a referendum to pass, by the way, is two-thirds, not just your standard 50%. Polls at the moment show that only 38% of Scots would vote yes. Most favour the disgustingly-named "devo-max" solution, whereby Scotland wields its own power over taxation and spending, but remains part of the UK. I'm with David Cameron, though. Either they want to be independent or they don't, and if they don't, they should stay as they are. A simple yes/no referendum is the way to go, and I suspect that's what will happen. If previous such occurrences are any barometer, a vote of "no" in the referendum might just be the end of the SNP as major political force.

As I say, though, it probably won't happen, which is a good thing. The UK is one of the most enduring and successful political unions in history; breaking it up cannot be a good thing for anyone concerned.


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I'm a trained linguistics expert, so there are a lot of posts about language; sorry! There's also a lot about current affairs etc., as well as anything else that I find interesting. Have a read, and of course comment if you wish. more »


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