The curious case of our Acts of Union

Unusually for a government document, the first half of the uninspiringly named Scotland analysis: Devolution and the implications of Scottish independence, produced by the UK administration, is actually a pretty good read: lucid, informed and as balanced as such an exercise can be.

But it doesn’t get everything right. It asserts, for example, that the 1707 Act of Union “united the parliaments of Scotland and England and resulted in the formation of a single parliament of Great Britain at Westminster and a single, unified United Kingdom (UK) state”.

Only it did not. There was certainly a united kingdom, but that was a description of Great Britain rather than the name of the new state. Indeed, the 1707 legislation is quite clear that, in place of Scotland and England, there was to be a new country “by the name of Great Britain”.

That remained the case for almost a century when another Act of Union merged the kingdoms of Great Britain and Ireland to form, as the 1801 legislation makes clear, a country thereafter to be known “by the name of ‘the united kingdom of Great Britain and Ireland’”.

With a significant amendment in 1922 (actually enacted in 1927), that remains the name of the country we currently inhabit – regardless of constitutional aspiration. Thus the United Kingdom (as the name of a state) was created in 1801 rather than 1707, and refers not to Scotland and England, as is widely assumed, but to Great Britain and Ireland.

Yet there is a curious reluctance to acknowledge this, not only in UK government documents, but also among Scottish Nationalists. Recently on Twitter, senior Yes Scotland strategist Stephen Noon confidently told me “the 1801 UK, 1707 GB thing is a myth”.

Unless Mr Noon thinks his passport embodies a “myth”, then it is quite clear he is a citizen of the “United Kingdom of Great Britain and Northern Ireland”. But, as I say, this mistake is so often made that otherwise constitutionally informed people have stopped even thinking about it.

As an aside, the 1603 “Union of the Crowns” is a misleading term, for Scotland and England remained separate kingdoms for another 100 years.

Rather, in 1603 there existed a personal union, in that King James VI of Scotland also became James I of England. The two kingdoms were only formally united in 1707.

It could be argued that the 1801 Act of Parliament uniting Great Britain with Ireland is the forgotten Act of Union, although arguably an important one. Like the 1707 act, it added MPs and representative peers to the Westminster parliament in London, while also changing the name of the state and giving it new branding (the current Union flag – or Jack – dates from that period).

Only the historian Alvin Jackson has acknowledged its significance in his excellent comparative study, The Two Unions (Edinburgh University Press, 2011), in which he examines the United Kingdom’s curious status as a multilayered, and arguably very messy, state of nations and kingdoms.

In their legal opinion (an appendix to the UK government’s Scotland analysis), Professors James Crawford and Alan Boyle play down the 1801 Act of Union in time-honoured tradition. Ireland is dismissed as “previously a colony”, which doesn’t quite capture its 18th century status equipped, as it was, with an independent parliament fiercely defended by a Protestant ruling class. They then conclude that it didn’t “affect state continuity”, which is arguably true, and agree with “Scottish and English writers” who generally view the “incorporation of Ireland” not as the creation of a new state but “as an accretion without any consequences in international law”.

Now, I doubt the people of Northern Ireland view themselves as an “accretion” to anything, but such wording is an example of overly-legalistic language that undermines an otherwise largely robust legal opinion. Thus, many Nationalists were incensed at the authors’ use of the word “extinguished” in relation to Scotland.

The authors were referring, of course, to Scotland’s status in international law following the 1707 Act of Union. As an independent, sovereign state Scotland did, of course, cease to exist more than 300 years ago. Extinguish might sound brutal, but it is accurate. England too was “extinguished”, and Great Britain was formed in both countries’ place.

But latching on to words like “extinguished” revealed a certain defensiveness on the part of many Nationalists – is Scotland’s future really going to be decided on the basis of legal terms (perhaps misused) buried in a government document no-one (other than me) will actually read?

And if Scotland was not “extinguished” as an independent state in 1707, then what, precisely, happened to it? And what, pray, is the point of next year’s referendum if not to re-establish Scotland as a sovereign, independent state?

There is a wider point in all of this, and one that I think betrays the lack of a US-style constitutional education (“civics”) in schools throughout the UK. The history of this country is pretty damned complicated, but understanding its subtleties and nuances – in the context of 2014 – is more important than ever.

The UK government’s legal opinion, like so many Scottish Government documents, is 1707-centric, but the events of that tumultuous year have never provided the full story.

It would, I suspect, come as news to many that the UK is just over 200 years old. Indeed, even fewer appear to realise that, in its current form, it is less than a century old. But then it suits Alex Salmond and other Nationalists to cast “independence” purely in terms of Scotland and (often versus) England, including the specious suggestion that, upon independence, the former can somehow refer to its pre-1707 state (impossible, not least because Scotland is no longer a distinct kingdom).

The United Kingdom of Great Britain and Northern Ireland now comprises four nations, not two, and its history is a lot more complicated than many die-hard Nationalists, and indeed die-hard unionists, seem to appreciate.