Acts of Union. Magna Carta, "the constitution" in America -- the myth often fails to withstand an encounter with the text. I've had occasion over the past couple of days to revisit Great Britain's founding statute after this case from Lord Gray began circulating amongst SNP supporters on social media. You can understand why. If it had any substance, it might look like constitutional dynamite which could be deployed against David Cameron's "English votes for English laws" proposals. The circulator concluded enthusiastically:
"I found the 1953 ruling someone pointed out earlier and it is very interesting indeed. The articles of union say that members of parliament returned by Scottish constituencies cannot be excluded from the House of Commons. This means excluded from voting on any legislation This is unalterable. No government can change it. It would appear that if a government attempts to do this the union is dissolved with immediate effect."
I am sorry to report that not only is this dead wrong on almost every point -- but the logic of the argument being deployed here is unintentionally surreal. First, the missing background. This isn't a "ruling" and nor is it from 1953. It is a partisan legal paper written by Richard Keen - who has just been appointed the Tory government's law officer for Scotland. It was written for Lord Gray in 1998 against the backdrop of the first Blair government's proposals to strip hereditary peers out of the House of Lords. Gray, a Scottish peer, wasn't a happy bunny at the loss of his family's privileges. His paper argues that it would violate the Act of Union to exclude Scottish hereditaries from the House of Lords. Article XXII provides:
"That by virtue of this Treaty, Of the Peers of Scotland at the time of the Union 16 shall be the number to Sit and Vote in the House of Lords, and 45 the number of the Representatives of Scotland in the House of Commons of the Parliament of Great Britain."
If Gray's case was right, and the Union provisions could not be amended "for all time coming" -- then the SNP's long term commitment to House of Lords repeal would also represent an outrageous breach with the letter of the Acts of Union. On this logic, Pete Wishart ought to be campaigning for the Scots lords in ermine to be restated. I don't know about you, but this doesn't particularly appeal to me.
And if we're going to be strict about it, we've got another problem. By the letter of the Articles, somebody is going to have to tell the 56 SNP MPs that the Union specifies for all time coming that there should only be 45 Scottish MPs, and at least eleven of them are going to have to seek employment elsewhere. Oh, and there's some more bad news about that independence referendum we all toiled away at back in September. The very first Article of the Acts of 1706 and 1707 reads as follows:
"That the Two Kingdoms of Scotland and England, shall upon the 1st May next ensuing the date hereof, and forever after, be United into One Kingdom."
I doubt many Scottish nationalists would support that provision being inviolate. And it'll make republicans amongst us uncomfortable to learn that their democratic ambitions are to remain unconstitutional in our eternal kingdom until the end of time or the heat death of the universe -- just because a small cadre of elite opinion in the early 1700s said so. Considering Lord Gray's case, the House of Lords Privileges Committee, which included several judges, came to a similar conclusion. They rejected Gray's argument concluding that Article XXII of the treaty wouldn't be breached by giving him and his colleagues of the blood their marching orders. Indeed, this provision of the 1706 and 1707 Acts had already been repealed by Westminster some years earlier, in 1993 and 1964 respectively. And damn right too.
But even if you disagree with this interpretation - it isn't obvious that any provision of the Acts of Union are relevant to the EVEL proposals at all. Digging further into the text, Article 23 has a good deal to say about the privileges of the sixteen Scottish peers in the House of Lords, but is mum on the rights MPs could expect to exercise in the House of Commons. The problems with EVEL are contemporary problems, and not ones which can usefully be addressed through the lens of a centuries old mercantile charter. We are at risk of being in the absurd position of pushing arcane constitutional arguments which would require sixteen Scotch lords to sit in Westminster, but which do absolutely nothing to enhance the argument about the status of Scottish MPs.
Legal nationalism in Scotland is an interesting tradition, but despite my political inclinations, not one I have ever felt a huge amount of sympathy for. Colin Kidd's (2008) Union and Unionisms has an interesting discussion of evolving legal and political ideas since 1707 about whether the Acts of the Union are entrenched and still represent fundamental law in the UK. Lord President Cooper's celebrated comments in the (1953) case of MacCormick v Lord Advocate are much quoted. The Union settlement clearly preserved things which have been seen as pillars of Scottish identity since - the church, the distinct order of law.
But for myself, I have never understood the place of the Acts of Union in that tradition. I'm indisposed to treat a commercial deal about salt and beer and window taxes with much reverence. Indeed, this is a paradoxical seam in the wider tapestry of Scottish nationalism. For many Scottish nationalists, the Union was "bought and sold for English gold" by a parcel of Scottish rogues -- but the agreement those "rogues" struck is today invoked as if it was Moses and the Prophets, in pious tones. On any reckoning, this is a perplexing combination of historical ideas to hold. This is a crooked deal, and we insist that it must be enforced to the letter and forever.
UK Supreme Court justice, Lord Sumption, began a recent lecture on Magna Carta on provocative form. "It is", he said, "impossible to say anything new about Magna Carta, unless you say something mad. In fact, even if you say something mad, the likelihood is that it will have been said before, probably quite recently." The same often goes for those other mythic texts in the UK and Scottish constitutional tradition, like the rampantly anti-catholic 1689 Claim of Right or the Scottish feudal oligarchy envisaged by the declaration of Arbroath. Much of the contemporary force of these texts seems to derive from ripping them out of context and attributing to them democratic virtues and aspirations which would have seemed alien to the very people who drafted them. It is a conclusion to madden the lawyer, but the cultural significance of these documents is not exhausted by what they do or do not actually say.
Detached from their context, and their texts, these declarations and charters float freely in the popular constitutional imagination. Sometimes, they are used to promote a more democratic vision of the country's best traditions; sometimes for more reactionary purposes. In America, grown men don tricorn hats and 18th century militiamen uniforms, to argue that their constitution is betrayed by federal healthcare reforms. On this side of the pond, Tories are even now invoking Magna Carta neo-mediaevalism to justify hacking back the contemporary rights which citizens enjoy. And Scottish nationalists are appealing to the ancient and perpetual rights of Scottish peers to try to resist the Conservative solution to the very modern West Lothian question.
Our abiding passion for old documents and ancient sources of authority are fascinating -- but often strange. Very strange,