Breaking up the Country?

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By Jason Michael

It has become something of a lazy unionist stock phrase that those of us seeking Scottish independence are divisive. Apparently we are troublemakers who want nothing other than to break up the country. We want nothing of the sort.

This notion of “divisive nationalists” is a staple in the repertoire of every Scottish unionist. Somehow the idea that Scotland can and perhaps should be an independent country – a state in its own right – is treated, as if by magic, to be the only politically divisive issue. A Department of Work and Pensions sanctions regime that has been described by the United Nations has a human rights violation, that punishes the poorest and most vulnerable – both unionists and nationalists, is never “divisive.” The crony capitalism and corruption of a London ruling élite Scotland never elected doesn’t divide us. That the Westminster government is using Brexit, which Scotland rejected, to target EU migrants and damage the entire British economy isn’t contentious. Only the desire to free Scotland from this insanity is divisive in the minds of Scotland’s unionists.

Divisiveness as an easily processed sloganistic rhetorical tool is not limited to the idea of polarising political opinions. Nationalist politics are divisive by nature because they seek to divide the country; it is the stated intention of the independence movement to break up the United Kingdom. This is what it’s really all about. No one gives a damn if policy or social issues are divisive. They are always divisive. That’s the nature of politics in a democratic society. What really upsets the unionists is that growing nationalism in Scotland poses an existential threat to their country. It doesn’t matter to them that Scotland is a country because, to unionism, Scotland does not exist.

Prior to the September 2014 independence referendum the British government published the legal advice it had sought of Professors James Crawford and Alan Boyle by which the government had asked if an independent Scotland would constitute a new state under international law. Their answer makes for interesting reading:

There are two possible answers to this question [of whether a new state was created in 1707]. It is a question not of the position of Scotland within domestic law—under which Scotland clearly retained a distinct constitutional status, in particular a separate legal system—but of how the union should be treated as a matter of international law.

One view is that the union created a new state, Great Britain, into which the international identities of Scotland and England merged and which was distinct from both…

An alternative view is that as a matter of international law England continued, albeit under a new name and regardless of the position in domestic law, and was simply enlarged to incorporate Scotland.

For the purpose of this advice, it is not necessary to decide between these two views of the union of 1707. Whether or not England was also extinguished by the union, Scotland certainly was extinguished as a matter of international law, by merger either into an enlarged and renamed England or into an entirely new state [emphasis added].

As of 2014 the British government’s legal understanding of Scotland is that it ceased to exist on the first day of May 1707. Call the Act of Union of England and Scotland what you will, it was not then nor is it today a union of equal parties in a new polity so named Great Britain. Of course it can be argued that England too ceased to exist, but the only certainty given was that Scotland did. In one of the two opinions it is suggested that England continued to exist, “albeit under a new name… and was simply enlarged to incorporate Scotland.” There is no suggestion that Scotland has the same possibility of existence. Scotland did not continue under a new name. It was never enlarged to incorporate England.

Given that the Westminster parliament, the parliament of the Kingdom of England before 1707 and that of Great Britain – England’s new name – thereafter, it is unlikely in the extreme that England would be found, in British law, to have ceased to exist with the Union. What this leaves us with is an Act of Union that is less a union than it is the complete absorption of Scotland by England. In the eyes of the unionists Scotland was simply annexed by England in the formation of a single country called Great Britain – Greater England.

This certainly puts the language of “divisive nationalists” in a whole new light. The charge that we are attempting to break up the country is completely preposterous. By the law of a foreign country we have been determined no longer to exist, yet in our lived reality we know that we do. Scotland’s memory, territory, culture, and nationhood are still lived realities, and so our desire for statehood – for existence – is anything but a desire to break up or divide our country. Rather it is to affirm by our lives and our reality that Scotland lives, and to make it clear that no written words in any Act of any parliament can legislate us out of existence. We are bringing our country together.

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