A lot of excitement has been generated in radical Scottish independence supporting circles by a talk given at the Scottish SovereigntyResearch Group's ‘The Next Steps’ conference on 17 May 2025 by Robert Black, retired professor of Scots Law at Edinburgh University.
You can watch the talk here and read it here but if all you knew about it was what you’d read in the National (see articles here and here), you would be forgiven for believing that the idea the Professor was challenging was that the UK is a ‘union’. But he wasn’t. I’ll come to what he was challenging presently but let’s get the union thing out the way first.
As happens so often, confusion is engendered by semantics and in this case it’s because the word ‘union’ has more than one meaning. See the photo from my dictionary above: the UK is a ‘union’ in the first sense but not in the second. It is not a federation or some other type of association (like the European Union) between Scotland, England, Wales and Northern Ireland. The Treaty of Union in 1707 didn’t provide for a union in the second sense. The UK is a unitary state with devolution in parts of it: it has no ‘partners’ or member states, however you want to call them. Politicians may from time to time bandy around phrases like ‘equal partnership’ but a politician saying something doesn’t make it so. No academic, legal or otherwise, has ever claimed the UK is a union in the second sense: nobody remotely acquainted with the subject ever could, nor did Professor Black claim they had. So the headline “Top legal expert: Scotland not a partner in a union” is as uncontroversial as “Top scientific expert: the Earth is round”.
Neither did Professor Black claim Scotland wasn’t in a union in the first sense. What he was in fact challenging was something altogether more arcane: that the state produced by the Treaty of Union was a new one which came into existence for the first time in 1707, and with the former kingdoms of Scotland and England it came in place of both ceasing to exist. I call this the ‘new state theory’ to contrast it with the alternative which is that the UK is simply a continuation of pre-1707 England with the addition of some extra territory and a new name, and with only the pre-1707 kingdom of Scotland having ceased to exist. I call this the ‘England enlarged theory’.
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Nor has the question of whether the UK was a new state or England enlarged ever been authoritatively decided in court. Professor Black highlighted, however, that, until now, what relatively little academic opinion on the matter there has been has supported the new state theory. His purpose, therefore, was to look again at the evidence of what actually happened following the union in 1707 to see if that stands up: to see if, on reflection, the England enlarged theory might not better fit the facts.
So let’s take a critical look at some of the evidence Professor Black led for the ‘England enlarged’ theory and to debunk the ‘new state’ theory but first a couple of terminological points: the name the ToU gave the united kingdom it ushered in was ‘Great Britain’. It only became known as the United Kingdom after Ireland joined in 1801 but for convenience I’m going to call it the UK at all times after 1707, and whether it was a new state or an enlargement of England. And by ‘England’ I mean pre-1707 England.
Anyway, Professor Black divided his evidence into three chapters corresponding to the traditional three branches of state: the legislature, the executive (government) and the judiciary.
The legislature I – no general election
The first adminicle (as we lawyers say) of evidence he adduced was that there was no general election prior to the first meeting of the UK Parliament: the MPs were just the same English MPs of the last pre-Union English House of Commons plus 45 Scottish MPs nominated by the outgoing Scottish Parliament. That sort of suggests the supposed new state was just a continuation of England with a new name and some extras MPs in its Parliament, doesn’t it?
It does. But what Professor Black didn’t mention was that the ToU specifically provided for there being no election: Art XXII provided that the Queen could decide whether to call one and, as it happens, she decided not to. That dilutes this adminicle considerably. Some historical context is necessary here: since 1694, elections to the English parliament had been triennial. [3] Elections on such a short cycle gave rise to political instability in a period called ‘the rage of party’ [4] There had been an election in England in 1705 so you can entirely imagine the English commissioners during the treaty negotiations the following year going: “Hang on – this is a new state we’re creating here with a new parliament which will necessarily involve a new election. HM’s keen to avoid yet another election so can we agree a sort of carve out here? That, to begin with, the members of the new House of Commons can be the existing English MPs plus 45 of the existing Scottish MPs unless HM decides she’s OK with an election before then? Yes? Good. Right, next …”
As I type this, I’ve thought of another thing Professor Black didn’t mention: Art XXII provided that, if the Queen decided not to call an election, the existing MPs would only sit until the next election would have to have been called according to the English triennial timetable which would have been in 1708. (Scotland didn’t have limited term parliaments.) The ToU didn’t provide for limited term parliaments going forward in the UK so the unspoken assumption they’d be term limited as in England but not Scotland might be another adminicle in favour of the England enlarged theory.
The legislature II – no new Speaker
In support of the England enlarged theory, Professor Black also instanced that the first House of Commons after the union didn’t elect a new Speaker. He’s just plain wrong on that. The first post-Union Speaker was indeed the last pre-Union English Speaker: but he was elected. [5]
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| Queen Anne addresses the House of Lords - Wikipedia |
Professor Black highlighted that the numbering of English Acts of Parliament continued uninterrupted through the Union. He explained that, in these days, Acts of both the old Scottish and English parliaments were referred to by the regnal year of the monarch and a chapter number. And he told us that the last Act of the pre-Union English parliament had been 6 Anne, Cap. 34 (the 34th Act in the 6th year of the reign of Queen Anne, in other words) and that the first Acts of the first post-Union parliament of the UK had been 6 Anne, Caps. 35 and 36.
That indeed appears consistent with the ‘England enlarged’ theory but a caveat is in order here: the Professor was basing himself on a collection of Acts called TheStatutes of the Realm first published 1810-28. But there are two earlier collections of Acts: TheStatutes at Large published in 1764 and another of the same name (here) published in 1769. And these both re-set the numbering of Acts to Chapter I at the Union. I feel it perhaps behoved Professor Black, in the interests of academic rigour, to mention that there was alternative evidence which might neutralise this point.
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| Statutes at Large (1769) |
Professor Black said
in 1707, the executive branch of the government in Scotland, the Privy Council and various other persons, was superseded by the existing executive structure pertaining in England including the English Privy Council.
With respect, that’s not quite true. Art. XIX of the ToU provided that the Queen might continue the Scottish Privy Council after the Union “until the Parliament of Great Britain shall think fit to alter it, or establish any other effectual method for that end.” And very soon after the Union, Parliament passed an Act (here: Chapter 39 of 6 Anne in the Statutes of the Realm and Chapter 6 in both versions of the Statutes at Large) which provided that, from 1 May 1708, there would be a single council “and such Privy Council shall have the same Powers and Authorities as the Privy Council of England lawfully had used and exercised at the Time of the Union and none other”. These words make clear that this was a new single Privy Council because, if it had been the English one continuing, why would it be necessary to say that the single Council was to have the same powers and authorities as the English one?
The executive II – international treaties
Professor Black also pointed out that none of Scotland’s treaties with foreign states survived the Union, only England’s. At first glance, that also looks like a strong adminicle in favour of English continuity but I wonder how persuasive it actually is?
Presumably, some sort of sift had to be undertaken after the Union of both former kingdoms’ treaties to see which continued to be appropriate for the UK, whether it be technically a new state or England enlarged. And it just so happened that none of Scotland’s treaties were appropriate. To take an example: Professor Black told us Scotland had a treaty with France. In 1707, England was at war with France and that war continued after the Union so, in these circumstances, was it realistic that the UK would adopt and continue the Scottish treaty with France? (Would it have been realistic that France would have accepted that?) In short, we can’t assume that all Scotland’s treaties ceased and England’s didn’t simply because England but not Scotland ceased to exist – there is another explanation which is equally consistent with the new state theory.
The executive III – ambassadors (and great seal)
Professor Black also instanced in favour of the England enlarged theory that England’s diplomatic representation in Europe continued uninterrupted: fresh credentials on behalf of the monarch of a supposed new state, the UK, were not presented.
He didn’t provide any reference for that statement but he may have been following the Crawford & Boyle advice (I’m coming back to that later). Neither did they reference their statement amongst the arguments put forward in support of the England enlarged theory that England’s diplomatic representation continued uninterrupted (see here, para 35.3) except to add the comment “The Act of Union Article XXIV appears to acknowledge this in retaining the Great Seal of England for transitional purposes.” I’m not sure I understand the implication there but it prompted me to look at Art.XXIV. This, after providing for there to be one great seal of the UK in place of those of Scotland and England says: “And that in the meantime the Great Seal of England be used as the Great Seal of the United Kingdom”. And is that not another adminicle in favour of the new state theory: if the UK was legally England enlarged, why was it necessary to say that the great seal of England could continue to be used pending creation of the new one?
Back to ambassadors, though. I simply don’t know enough about the topic but, if I were the judge hearing the case for the England enlarged theory, the hopefully reasonably intelligent questions I’d want to put to the counsel proponing it would be these: Is it not the case that, in the 17th and 18th centuries, international relations – diplomacy, war, peace, treaties etc. – were conducted between monarchs rather than states? Because, back then, there were far more examples of rulers who wore multiple crowns than today? “Therefore, Carlos,” as Charles II might have said to the ruler of a lot of places in Europe and beyond 1665-1700 “I’m not in the least interested in the niceties of the exact constitutional relationships between Castile, León, Aragon, the Two Sicilies, Jerusalem, Dalmatia, Croatia, Navarre, Granada, Toledo, Valencia, Galicia, Mallorca, Seville and all these other places [6] you claim to be the King, Archduke, Duke, Marquess and Count of. All I need to know is that you can put the forces of all that lot into the field for or against me or my allies and I expect an ambassador from you speaking with one voice accordingly. And in return, you can take it that my ambassador speaks for me wearing all three of my crowns. OK?”
Against that background, apart from Darien (1690s) possibly, did Scotland ever have a foreign policy independent of England’s after the Union of the Crowns in 1603 when the monarch of both became the same person? Did regiments of the Scottish army not fight in King William II’s (III of England: ‘William of Orange’) war against France – yes, his war because it was in large part motivated by protecting his native Netherlands from France – without any suggestion this was somehow unconstitutional? Is the absence of a separate Scottish foreign policy not suggested by the Act AnentPeace and War passed by the Scottish Parliament in 1703 which provided that, after the death of Queen Anne, no king or queen of Scotland who was also king or queen of England could declare war on behalf of Scotland without the consent of its parliament?
Did Scotland have ambassadors abroad accredited by the Queen separately from ambassadors accredited by her in relation to England? If so, what happened to them at the Union?
If the text around their Great Seals of England is anything to go by (see here), most of the time during the Union of the Crowns (1603-1707) the monarch styled him/herself king/queen of Great Britain and Ireland even though, strictly speaking, they were kings/queens of Scotland, England and Ireland: was that style or seal used in letters of credence of ambassadors to foreign princes?
So, if there’s any truth in the assumptions implicit in these questions, is it realistic that Queen Anne recalled all her ambassadors in 1707 then sent them out again with new credentials still saying she was the Queen of Great Britain and with a private covering note: “Dear Grand Duke, if you’re wondering why Sir John was recalled and replaced by Sir Henry, it’s not because of anything Sir John said. It’s because we’re a new state now, you see? It doesn’t change anything, we’re still allies, but the lawyers insisted!”
But if the answers to these questions reveal there’s no truth in the assumptions implicit in them, then this – no new ambassadors appointed for the UK – becomes the strongest adminicle of evidence in support of the England enlarged theory so far.
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| First seal of Queen Anne as Queen of England - Hathi Trust |
The executive IV – management of Scotland
Under the heading of the executive, Professor Black also devoted a segment of his talk to how Scotland was administered – ‘managed’ as it was put at the time – under the Union in the 18th and 19th centuries. But this was, as my old boss used to say, interesting but irrelevant: the issue of how to manage (administer) Scotland would have arisen whether the UK was a new state or England enlarged and the solutions adopted don’t help us determine which of the two is the correct legal analysis.
The executive V – regnal number (Lord Cooper)
This wasn’t mentioned by Professor Black but I’m throwing it into the mix myself: the late queen’s regnal number Elizabeth II suggests the UK is a continuation of England considering there was never an Elizabeth I of Scotland.
This was famously the subject of judicial challenge in the Scottish courts in 1952 shortly after the queen’s accession in the case of MacCormick v Lord Advocate (which I’ve written about before here). Interestingly for present purposes, the pursuers’ (plaintiffs’) case was based, not on there not having been an Elizabeth I of Scotland, but on there not having been one of the UK. Because if the UK was a new state beginning in 1707, the numbering of its monarchs should, like its Acts of Parliament, have been re-set to I, shouldn’t it? [7]
The MacCormick case was ultimately thrown out but not because the court ruled that the UK was legally a continuation of England and that II was therefore the correct number. Instead, the ground of judgement was that the choice of regnal name and number was a matter within the royal prerogative the exercise of which was not challengeable in the courts: the queen could quite legally have chosen to call herself Ursula the 43rd, in other words. But the regnal numbering practice (not law) to date is said to be to take the higher number from Scotland or England (or if there’s an equal number, as in the case of Charles, that number) and add one. It just so happens there hasn’t been a higher number from Scotland yet – it will be interesting to see what number is chosen if there’s a monarch of the UK in the future called James or Robert, for example.
Although Professor Black didn’t mention it in his talk, the MacCormick case is also interesting as containing the only (that I know of) judicial support for the new state theory. That’s because, in the course of his judgement, the Lord President of the Court of Session, Lord Cooper (most famous for his dictum uttered in the same case: “The principle of the unlimited sovereignty of Parliament is a distinctively English principle which has no counterpart in Scottish constitutional law.”) said:
Considering that the Union legislation extinguished the Parliaments of Scotland and England and replaced them by a new Parliament, I have difficulty in seeing why it should have been supposed that the new Parliament of Great Britain must inherit all the peculiar characteristics of the English Parliament but none of the Scottish Parliament, as if all that happened in 1707 was that Scottish representatives were admitted to the Parliament of England. That is not what was done.
That does not amount to an authoritative court ruling that new state is the correct theory because it’s what lawyers call an obiter dictum. That is a statement made by a judge in a judgement but which is not essential to his ground of decision – a sort of ‘interesting but irrelevant’ digression, if you like – and is thus not legally binding. (So when Crawford & Boyle (see below) said (para. 34 of their advice) under reference to the MacCormick case that the new state theory “has been relied on in UK courts”, that is not correct, with respect.) Nor did Lord Cooper analyse why he believed the new state theory to be the correct one, he just made that assertion. So even as obiter dicta go, it’s not the weightiest.
The executive VI – coronation oath
This wasn’t mentioned by Professor Black either but the UK coronation oath is the English one, not the Scottish one.
That too looks like another adminicle of evidence supporting the England enlarged theory but there’s another way of looking at this which is consistent with the ‘new state’ theory. I wrote about this here but, in brief, the Treaty of Union (ToU) didn’t specify a coronation oath for the UK – it specified a number of its features including its name; its coat of arms; its flag; its coinage; who its monarch was to be and the line of succession to her failing her issue; even the name of its parliament. But, apart from oaths to maintain the Churches of Scotland and England, the ToU didn’t provide for any other coronation oath to be taken by an incoming monarch. So, if the new state theory is correct, an incoming monarch wasn’t legally obliged to take any coronation oath. But the powers-that-be decided one would nevertheless be appropriate, even if not strictly required, at the coronation of the first post-Union monarch, George I in 1714, so they re-purposed the English one. And its use ever since could be argued to have evolved into a constitutional convention if not even the common law of the UK, the new state created in 1707.
But as I type this, it occurs to me there’s counterpoint to that argument: at the coronation of the present king, Charles III, the Archbishop of Canterbury said to him immediately before administering the oath (watch it here and text here at page 23) “The Coronation Oath has stood for centuries and is enshrined in law. Are you willing to take the oath?” Now, if the Archbishop had said that at the coronation of George I that would tell strongly in favour of the England enlarged theory. For my theory about him having taken an oath even though none was required by the ToU for the UK as a new state to hold any water, the Archbishop would have to have confined himself to saying something like “Are you willing to take an oath?” Ten minutes’ googling failed to reveal exactly what was said at George I’s coronation but this footage (and text here, although I can’t vouch for its authenticity) of Elizabeth II’s coronation (1953) suggests the Archbishop merely said “Madam, are you willing to take the oath” without any mention of its history or provenance – point being we can’t assume that what was said at Charles III’s coronation was also said at any earlier coronation.
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| The coronation of George I - Wikipedia |
Under this heading Professor Black explained that in Scotland before the Union there had been a process called ‘protestation for remeid of law’ whereby litigants disappointed by the outcome of their cases in the courts could, in certain circumstances, appeal to Parliament. It was a right guaranteed by the Claim of Right (1689) but no provision for any equivalent to it following the demise of the Scottish Parliament at the Union had been made in the ToU so the solution adopted was that Scottish litigants could appeal instead to the House of Lords (HoL). And Professor Black explained that, until 1862, there was no requirement for Scottish legally qualified peers to sit on Scottish appeals. Now you might think that, as the whole point of protestation for remeid of law was to get your case out of the hands of Scottish judiciary, this was no bad thing but, as the Professor explained, the HoL became just another court of law, with its judgements being binding on the Scottish courts, and the absence of Scottish legally qualified judges therein had a predictably deleterious effect on Scots Law. But as interesting as this was, it wasn’t relevant to his main theme: the question of what to substitute for protestation for remeid of law would have arisen whether the UK was a new state or England enlarged. [8]
Crawford & Boyle
In 2012, the UK Government sought the advice of James Crawford, then Professor of International Law at Cambridge University and later judge of the International Court of Justice, and Alan Boyle, then Professor of International Law at Edinburgh University, on the implications for the rest of the UK (rUK) if Scotland were to become independent following the 2014 referendum.
Specifically, while there was little doubt Scotland would have become a new state – a ‘successor state’ as it’s termed in international law – what would be the status of the rUK? Would it too be a successor state or would it be the same UK as before minus some of its territory and population: what’s called a ‘continuator state’ in international law. That mattered a lot because, if the rUK would not be a continuator state, then it might not be able to take for granted some of the privileges it enjoys in international law such as permanent membership of the UN Security Council: as a successor (new) state, it might have to re-apply for these.
You can read the Professors’ advice here. After analysing the precedents in international law, their conclusion (para 3.1) was that the rUK would indeed be the continuator state. [9] But in the course of their opinion they touched briefly on whether the UK as it stood was a new state created in 1707 or a continuation of pre-1707 England enlarged: see paras. 33-37. But they decided it was not necessary for them to reach a conclusion on that because the advice they were about to give about the legal result of Scotland splitting off again now would be the same either way.
But Professor Black said in his talk: “It is perfectly clear from the examples that they give of the continuation unchanged of English institutions that Crawford & Boyle favoured the ‘England enlarged’ alternative.” The examples C&B gave were three of those given by Professor Black – no new election in 1707, survival of English but not Scottish treaties and no new ambassadors – but you can’t conclude that, just because academics list points in favour of a position, that means they support it! Professor Black knows that perfectly well so I found his remarks about C&B’s opinion quite inexplicable.
Company law analogy: merger or takeover?
Observing that:
When lawyers are confronted with situations in which there appears to be no direct legal precedent, guidance as to what the correct answer may be is often sought in analogies. What situations are there that can realistically be regarded as analogous to what took place between England and Scotland in 1707?
Professor Black proceeded to draw an analogy with corporate mergers and takeovers and concluded:
In company law there are well recognised tests for determining whether what has happened is a merger or a takeover. I have no doubt that any corporate lawyer looking at the events of 1706, 1707 and later would classify what occurred as a takeover, not a merger.
But this isn’t an analogy that helps decide the legal question of whether the Union was effected in 1707 by creating a new state or continuing with England enlarged, it’s a metaphor for the facts of history. It’s a metaphor, moreover, which invokes popular perceptions of the difference between mergers and takeovers (meetings of equals vs. absorption of a smaller firm). But it doesn’t reflect company law.
In company law, mergers and takeovers are not alternatives. Takeovers are about change of control (the shareholding) of companies while mergers are about transfers of their assets (and liabilities) irrespective of who controls them: they’re apples and pears. A merger typically follows a takeover: for example A Ltd takes over B Ltd by buying the majority of its shares. A Ltd may then (but need not necessarily) decide to merge the two companies. But a merger is not necessarily the consequence of a takeover: A Ltd and B Ltd may have been owned by the same shareholders since their formation but they later decide to rationalise by merging the two.
The Companies Act 2006 doesn’t define ‘takeover’ but it does define ‘takeover bid’ (see here, para. 20(1): “a public offer … which follows or has as its objective the acquisition of control of [a] company”) And the definition in s.904(1) of the Act of ‘merger’ is interesting:-
(1) [A] scheme involves a merger where under the scheme—
(a) the undertaking, property and liabilities … of one or more public companies … are to be transferred to another existing public company (a “merger by absorption”),
or
(b) the undertaking, property and liabilities … of two or more public companies … are to be transferred to a new company, whether or not a public company, (a “merger by formation of a new company”).
Remember I said earlier that the law doesn’t contemplate ‘fusions’ of legal entities, only the transfer of the assets and liabilities of one to the other or the transfer of the assets and liabilities of both to a third party? Well, there are these two alternatives in the context of UK companies right there (there are no other options for a company merger I haven’t quoted). Option (a) – a ‘merger by absorption’ – is analogous to the ‘England enlarged’ theory while option (b) – a ‘merger by formation of a new company’ is analogous to the ‘new state’ theory.
So, if you really wanted to mix company law and history, and draw conclusions from analogues from these different disciplines 300 years apart, you could say that the Union is unequivocally a merger because, according to the Companies Act, it’s still a ‘merger’ even when it’s a ‘merger by absorption’, the analogue of the England enlarged theory. I’m being tongue in cheek there, of course, but not when I say I found this segment of Professor Black’s talk a bit strained: ‘Takeover not merger’ would be dynamite from a historian such as Tom Devine but a lawyer digressing into history from the law which is his province lacks the same impact.
Professor Black’s comments on the ‘management’ of Scotland in the 18th and 19th centuries and the jurisdiction of the House of Lords do not assist deciding the question which of the ‘new state’ or ‘England enlarged’ theories is correct because these things would have happened even with a new state. Nor does his company law analogy (takeover or merger?) assist because it’s an analogy with the facts of history: you can’t translate the fact it was a takeover into support for the England continuing theory because it would still have been a takeover even with a new state.
That leaves us with the following points:-
* no new elections in 1707 – neutralised by the fact, which Professor Black didn’t mention, that this was specifically provided for in the ToU: why was it necessary to provide for no elections if the UK was to be England continuing?
* no new Speaker – neutralised by the fact, which he also didn’t mention, that there was an election of the Speaker. The fact the former English Speaker was elected is immaterial.
* continuity of English numeration of Acts of Parliament – weakened by the fact, which Professor Black didn’t mention, that there are two earlier series of Acts which show them being re-set to I from the Union.
* Scottish Privy Council abolished, English one continued – neutralised by the fact that both former Privy Councils were replaced by one in terms which show it was a new council, not the English one continuing.
* none of Scotland’s treaties survived, only English ones – that could have happened even were the UK a new state
* no new ambassadors appointed, English ones remained in office – were they England’s ambassadors or Queen Anne’s? If the latter, then no need to appoint new ambassadors even were the UK a new state. But if not, then this is perhaps the strongest adminicle for ‘England enlarged’ so far.
* Crawford & Boyle – I simply don’t see how you can read their advice as supporting ‘England continuing’ as Professor Black claimed.
Then there are three adminicles in support of the England enlarged theory of my own which Professor Black didn’t mention:
* unspoken assumption that UK parliamentary elections would be triennial – as in England but not Scotland.
* regnal numbering – not re-set to I at the Union and seems to be a continuation of the English sequences. But the numbering could be a UK as new state practice consistent with a compromise between the English and Scottish numbering sequences.
* English coronation oath used at coronation of UK monarchs – but this could have originated in a UK as new state non-statutory practice
Professor Black’s Conclusion
To quote him:-
… no honest and conscientious [in his written text “conscientious and impartial”] lawyer can look at what happened in the first decade of the 18th century to the institutions of government north and south of the Tweed and reach the conclusion that the pre-existing states of Scotland and England both ceased to exist and that a new state emerged phoenix-like out of the ashes. The evidence, the facts on the ground, support no judgment other than that Scotland ceased to exist as a state in international law and was absorbed into a still extant England cosmetically renamed Great Britain.
Professor Black has form for these uncompromising conclusions [10] and this is another one. I’m an honest and conscientious lawyer: I’ve raised points which the Professor didn’t and which could, on one view of them, support the England enlarged theory he comes down so unequivocally in favour of, so: honest? – tick. And I’ve spent a lot of time trying – so far as is possible without access to a law (or history) library – to fact-check and look below the surface of all the points he and I have both raised, so: conscientious? – tick. And I could conclude that the new state theory is the correct one.
My conclusion
So what is my conclusion – new state or England enlarged? I find it really difficult to decide. I’ve tried to demonstrate that some of Professor Black’s adminicles in favour of England enlarged are perhaps not as persuasive as they appear at first sight. That doesn’t mean new state must be correct, of course, but on balance I think I favour it by the smallest of margins. The adminicles in favour of new state I find most persuasive are the provisions in the ToU providing for no new elections and the English Great Seal to be used pending the making of a new UK seal and the provision in the Act 6 Anne c.6/39 providing that the single Privy Council of the UK was to have the same powers and authority as the English Privy Council – why were any of these provisions necessary if the UK was England continuing under a new name?
All that said, I can’t swear that I’m not still being a bit subliminally influenced by the fact that the new state theory was what I was taught when I studied constitutional law at Edinburgh University in the 1980s. But in the end, I’m agnostic as to which is the correct theory because it doesn’t matter which one is correct!
It doesn’t matter!
As fascinating as I find debating these abstruse points of constitutional law, it’s real angels on pinheads stuff because the outcome doesn’t make a jot of difference to anything. That’s why Crawford & Boyle didn’t think it necessary to decide which of the new state or England enlarged theories was correct.
Properly understood, the distinction between the two theories boils down to one of timing: when the UK came into existence. Was it in 1707 (new state theory) or was it whenever England could be said to have come into existence (10th century? England continuing theory)? But whether it came into existence in the 18th or the 10th century doesn’t affect the fact that, in the 21st century, the UK is what it is.
David Henry, the director of the Scottish Sovereignty Research Group who chaired the conference Professor Black spoke at wrote in the National (here):
The legal ramifications of what was revealed over the fictitious nature of the Union [i.e. that, in Professor Black’s opinion, it’s not a state newly created in 1707 but a continuation of pre-Union England] cannot be overstated. Every treaty the UK has signed in the last 300 years is based on a legal fiction. This is truly a legal bombshell that exploded on to the world stage during our conference.
David doesn’t mean a ‘legal fiction’ (what they are is explained in this footnote [11]) but he seems to imply some sort of deception by the UK that it was a new state formed in 1707 and that other states entering into treaties with it would not have done so had they known the UK was, in fact, a continuation of England with some new territory added in 1707. But the UK has never, so far as I know, represented internationally that it only dates from 1707 and, anyway, countries entering into treaties with it don’t care what year it was created in: did we care when Germany or Italy were formed when we joined the EEC (as the EU used to be called) in 1973? Did we care when Spain was formed when we acceded to its joining in 1986?
Another analogy
Imagine the A Medical Practice with thirteen partners amalgamates (to avoid using the word ‘merges’) with the B Medical Practice with three partners and the combined practice is rebranded as the A&B Medical Practice.
Takeover or merger (as these words are understood by lay people, not as they’re defined in the Companies Act)? Takeover, no doubt. And that’s not really surprising when a big entity amalgamates with a smaller one – the combined practice is likely to look a lot like the bigger one. Thus, the three former B partners find themselves in partners’ meetings on the first Monday of each month in the meeting room at the A surgery just as the former A partners did (the B partners never had any fixed timetable of partners’ meetings). The B practice (the smaller one) didn’t have a practice manager but the A practice (the bigger one) did and she remains in post. The former B partners and staff have to get used to the former A practice appointments and accounting software which continues to be used by the combined practice. The former B partners used to order things themselves but now all purchases have to go through the practice manager which is what used to happen at the A Practice. And so on … .
Meanwhile, a patient of another practice is considering moving to the A&B Practice: apart from being a shorter bus ride from her home, she’s heard good things about its partners and also how polite the staff are: even the waiting room is beautifully decorated and has lovely comfy chairs, by all accounts. But what the patient does not care about – would never even occurr to her – is whether the combined practice legally dates back to the formation of the former A Practice (because the amalgamation with the B Practice was effected by the former A partners assuming the B partners into their partnership) or only back to the amalgamation (because the A&B Medical Practice was an entirely new partnership set up at that time).
Footnotes
[1] Though in domestic law at least, the entity whose assets have been transferred to the other needn’t necessarily cease to exist: it might remain in existence as an empty shell.
[2] In this case, both might remain in existence as empty shells.
[6] Full list of his various territories and titles here at page 239, note 2. He was the King of Spain, in short.
[7] On the argument that the UK was a new state, the numbering of whose monarchs ought to have been re-set to I, William IV (1830-37) and Edwards VII (1901-10) and VIII (1936), whose numbers also continued from their English namesakes, should have been William I and Edwards I and II. Indeed, Charles III ought properly to be Charles I even though there were two previous Charles of both Scotland and England.
[8]The segment of the talk about the jurisdiction of the House of Lords would have been highly relevant if Professor Black’s theme had been breaches of the ToU considering, as is well known, it provided for the continuation of the Scottish judiciary with no Scottish cases to be heard in English courts and for the continuation of Scots Law, subject only to alteration by the UK Parliament (which I think must be read as by an Act of Parliament passed by both houses and assented to by the monarch, not by a handful of ignorant members of just one house). But breaches of the ToU wasn’t the theme, it was whether the ToU had given birth to a new state or merely an enlargement of England considering the ToU didn’t specify by which of these two methods the Union was to be effected.
[9] When speaking, Professor Black by a slip of the tongue said that Crawford & Boyle’s conclusion was that the rUK would be a successor state (see here and here). He correctly refers to it as continuator state in his text although referring there to the continuator state as ‘England alone’ is, in this of all contexts, a regrettable lack of imprecision: the continuator state would of course be England, Wales and Northern Ireland.
[10] For example, he’s on record as saying (here) no Scottish jury would have convicted the Lockerbie bomber – predicting juries is a notoriously risky business! And in 2012 he said (here) that “no court could conceivably hold that it was beyond the legal power of the Scottish Government to promote legislation to enable it to consult the Scottish electorate (by means of a referendum) about whether they would favour the Scottish Government's making … proposals to [hold conversations or enter into negotiations with, the United Kingdom Government about (i) widening the devolved powers of the Scottish Government and Parliament (including amending or removing some or all of the matters reserved to the United Kingdom which are set out in Schedule 5 of the Act) or (ii) altering the constitutional position of Scotland], or holding such conversations or entering into such negotiations with, the Government of the United Kingdom”. And that a Supreme Court challenge to such legislation would be “doomed to failure”. The legislation he envisaged there seems to be subtly different from an actual independence referendum bill (which, as we all know, was ruled out by the Supreme Court) but, even so, it’s a pretty rash prediction.
[11] A legal fiction is when a certain state of affairs is declared for the purposes of the law to be the same as another state of affairs with which, in all other contexts, it is not comparable. Example: imagine the Scottish Gender Recognition Reform Bill had become law. And imagine a biological woman who has not undergone any gender reassignment procedure obtained a gender recognition certificate as a man: by a legal fiction she’s a man.
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