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“The Union and the law” revisited

14 Jul 14

Referring to the article of this title by the late Professor Walker, this essay argues that the “rUK continuator” analysis of Scottish independence by Professors Crawford and Boyle is legally and historically unsound

by Ian Campbell

On the 300th anniversary of the 1707 Union the late David Walker, Regius Professor Emeritus of Law in the University of Glasgow, wrote in this Journal (June 2007, 14) an authoritative article in which he noted “the continuing failure of the Westminster Parliament, and its advisers and draftsmen, to appreciate that the Union was made by a treaty within international law and merely ratified by the parliaments of the two uniting states under their domestic laws, so as to put themselves out of existence and create a new sovereign state in lieu”.

Sadly Professor Walker died, aged 93, in January this year. Obituaries published in the Herald and the Scotsman agreed that Scotland had lost one of its most respected legal figures, a “towering figure” and an “intellectual giant”. There is a brief citation from the writings of the late professor in the explanatory notes to the June 2014 Draft Scottish Independence Bill.(1)

In the final paragraph of his article Professor Walker wrote: “It is clear that any political development which requires reconsideration of the Treaty and relative Acts of 1706-07 will require careful and anxious thought to avoid repeating or compounding mistakes of the past. It is not at all a simple matter.”

Turning to the wider debate now proceeding as to the Union, one notes that the House of Lords Select Committee on the Constitution has recently considered the “Constitutional Implications for the Rest of the UK” in the event of a “Yes” vote being recorded at the forthcoming referendum. The Rt Hon Alistair Carmichael MP, the Secretary of State for Scotland, gave evidence before this Committee on 12 March 2014. Questioned by the former Attorney General, Lord Goldsmith, he was asked: “What will the United Kingdom Government or Parliament need to do in terms of legislation to have at least something that makes it clear that Scotland is now independent…?”

The Secretary of State replied: “The union was constituted by a treaty followed by two Acts. If it is now to be dissolved, it would presumably need that at the very least”.(2)

Professor Walker would probably have agreed with this response, although it may be assumed, despite the above evidence given by him, that the Secretary of State adheres to the “rUK continuator” theory of the eminent Professors James Crawford SC and Alan Boyle which is nevertheless inconsistent with it.

Origin of a theory

Their preferred joint view is published as Annex A, “Opinion: Referendum on the Independence of Scotland – International Law Aspects”. It forms part of Scotland analysis: Devolution and the implications of Scottish independence, presented to Parliament by the then Secretary of State for Scotland, the Rt Hon Mìchael Moore MP, in February 2013. It contends as its preferred view that Scotland was extinguished in 1707, but England continued, albeit under the new name of Great Britain or the UK (see Annex A, “Opinion”, paras 35 and 67). If this were correct there would be no “Union” to dissolve but merely independence to grant. Accordingly, on the UK “agreeing” to Scotland becoming independent, Scotland would become a “new state”.

Reading Elizabeth B Crawford’s obituary of Professor Walker, published in the Scots Law Times of 31 January 2014 (pp 17-18), one is struck by her recalling how the late Professor’s “standards became legendary” (p 17), and how: “Few who had the inestimable benefit and privilege of being instructed by Professor Walker will forget the rigour he required... tolerance was hardly his watchword, in his dealings with colleagues” (p 18).

What might Professor Walker’s view have been of the “rUK continuator” theory? There can be little doubt but that he would have viewed this theory as yet another instance of “repeating or compounding mistakes of the past”. Professor Walker would no doubt have pointed out that Professors Crawford and Boyle were from the outset in error as to the facts of the Union’s birth.

As to such birth Professor Walker had observed: “The proper understanding of the legal nature of the Union is that it was an agreement made in 1706-07, not by the parliaments of Scotland and England, but by commissioners appointed by the heads of the executive of the independent states of Scotland and England (both of which offices were then vested in Queen Anne, but acting in different capacities). The agreement was stated in 25 articles, signed and sealed by almost all of each set of commissioners, with a copy being presented by each set to Queen Anne and accepted by her with warm thanks, in both her capacities. ... Neither parliament had participated in discussing the terms and conditions of the agreement.” (Emphasis added.)

One may note at para 31 of the opinion of Professors Crawford and Boyle that they there fall into error in asserting: “On 22 July 1706, commissioners appointed by the English and Scottish parliaments agreed on 25 articles comprising the Treaty of Union.” (Emphasis added.)

One thus finds that a foundation stone of the “rUK continuator” theory is laid under the mistaken impression that the respective English and Scottish Parliaments appointed the commissioners. It is true that Queen Anne had been previously empowered by Acts of the English and Scottish Parliaments respectively in 1705 to make such nominations,(3) but as we shall see later, this original error on the part of Professors Crawford and Boyle was compounded by a further error arising out of a like failure to take proper cognizance of the key role of the Crown, in the person of Queen Anne, in the creation of the Union.

Committee for Privileges

Before dealing with that, however, it may be noted that Professors Crawford and Boyle pray in aid at para 46 of their opinion the fact that: “in 1999 the UK Government suggested to the Committee for Privileges that the UK Parliament had ‘complete sovereignty’ to amend even those articles of the Acts of Union that ‘are expressed to be entrenched for all time...’”. The authors provide by way of reference for this: www.publications.parliament.uk/pa/ld199899/ldselect/ldprivi/106i/106i08.htm.

Unfortunately the reference is wrong. This reference takes one to the first report of the Committee for Privileges and to another issue irrelevant to the opinion. The correct reference should have been: www.publications.parliament.uk/pa/ld199899/ldselect/ldprivi/108i/10811.htm.

This duly takes one to the second report of the Committee for Privileges, and the UK Government case signed by M Lynda Clark QC, then HM Advocate General for Scotland. Interestingly she does refer, at para 56, to the commissioners negotiating “Treaty Articles”.

The true importance of the proceedings before the Committee for Privileges lies in the opinions delivered by the Committee and in particular by the three then Law Lords, the late Lord Slynn of Hadley, Lord Nicholls of Birkenhead and Lord Hope of Craighead. With all due respect to the immense legal authority of Professors Crawford and Boyle in the field of international law, the better view in my submission is that the opinions of the Lords Slynn, Nicholls and Hope concerning the Union, albeit not delivered in the course of legal proceedings as such but delivered in the course of a dispute, are of greater weight.(4)

Those opinions focus on a narrow issue as to the Union. Professor Walker would have noted that Lord Hope was in error as to the appointment of the commissioners, and he would no doubt have found the Law Lords in varying degrees to have been errant in much of their reasoning. Be that as it may, Professor Walker would in my submission have found nothing in those opinions to provide support for the “rUK continuator” theory.

In my submission Professors Crawford and Boyle were perfectly correct to draw attention to the Committee for Privileges proceedings, but having done so it behove them to deal with the opinions of the Law Lords insofar as logically inconsistent with their “continuator” theory.

Still a treaty?

In the first paragraph of his June 2007 Journal article, Professor Walker, with considerable foresight, stated: “After three centuries, the Union of Scotland and England and the creation of the new state of Great Britain, or the United Kingdom of Great Britain, may again give rise to legal argument.”

Despite such foresight, it is unlikely that Professor Walker could have foreseen the arguments set out for example in para 43 of the opinion of Professors Crawford and Boyle. In that paragraph they consider the possibility: “that Great Britain was the continuator of England rather than a new state. ... If one of the two parties to the Treaty ceased to exist as a state in May 1707, it can no longer sound in international law. The situation is perhaps comparable to the Treaty of Waitangi between the UK and certain Maori chiefs, which on one view (by no means uncontested but still useful by way of analogy) was an international treaty under which an independent state ceded its sovereignty. This view relies on the assumption that there could have been a treaty and yet the resulting constitutional system could still be identified with only one of the two parties, England, at the expense of the other – which is certainly possible”.

The authors continue in the following paragraph (44) to advance their view “that the Treaty and Acts of Union no longer sound as a treaty, even if they ever were one”.

It is here that the initial error referred to above in laying the foundations of the “continuator” theory is in my submission compounded. As Professor Walker explains, the Union owed its birth to a Treaty entered into by Queen Anne as head of state of her separate Kingdoms of England and Scotland. In other words, the Treaty was not concluded by the Parliaments of England and Scotland, although legislative acts of each Parliament followed the conclusion by Queen Anne of that Treaty.

Accordingly the suggestion made, as noted above, in the opinion of Professors Crawford and Boyle that: “If one of the two parties to the Treaty ceased to exist as a state in May 1707, it can no longer sound in international law”, is in my submission flawed. What this proposition ignores is that in the United Kingdom it is the Crown which is treated as a symbol, although not necessarily as a synonym, for the state. (See Bradley and Ewing, Constitutional and Administrative Law, at p 233.) Professors Crawford and Boyle put forward no evidence to suggest that in 1707 either Queen Anne or anyone else regarded her as having “ceased to exist” in her Scots as opposed to her English capacity.

Examination of modern practice demonstrates that the theory of Professors Crawford and Boyle, which accordingly requires it to be shown that the Scottish Crown as symbol of the state had ceased to exist in 1707, is in my submission untenable.

One may for example ask the rhetorical question as to whether, when HM Queen Elizabeth II opens each new session of Scotland’s Parliament in the presence of the ancient Crown of Scotland, itself retained in Scotland pursuant to article XXIV of the Union Treaty, she is acting in her capacity as successor to the Crown of Scotland or merely participating in an empty pageant. Without looking any further than the official website of the British monarchy, it would seem that it is the former which meets the understanding of HM the Queen and not the latter. Thus it is stated: “Although a new Scottish Parliament now determines much of Scotland’s legislation, the two Crowns remain united under a single Sovereign, the present Queen.” (Emphasis added.)(5)

One can only speculate as to whether Professor Walker would have regarded reference to the Treaty of Waitangi as providing a helpful analogy. In the ninth edition of Oppenheim’s International Law, vol 1 at p 1217 (1996 paper edition), under the heading “Parties to treaties”, the late editors Professor Robert Jennings and Sir Arthur Watts comment (at footnote 2): “In the 19th century and before, it was often the practice to designate agreements reached between colonising settlers and indigenous peoples, such as Indian tribes in North America and the Maoris in New Zealand, as ‘treaties’ (e.g. Treaty of Waitangi 1840 with certain Maori chiefs), even though the indigenous peoples may not have constituted states in the modern sense of the term. Those instruments are often still regarded as treaties for the purposes of municipal law, even though they may not have that status in international law.”

It may well be that Professor Walker would have remained unpersuaded as to the utility of seeking to draw any useful analogy from the controversial Treaty of Waitangi, which became the cause of much bitterness. This so-called treaty, signed by the Lieutenant-Governor of New Zealand on the one hand, and initially by 40 or more Maori chiefs and thereafter hundreds more on the other hand, contributes in my submission little or nothing to the understanding of the dual role of Queen Anne as Queen of England and Queen of Scotland, in accepting the Treaty of Union in her two separate executive capacities from the commissioners representing England and Scotland who had been appointed by her to draw up such Treaty.

Birth of Great Britain

It may be more instructive to consider material available closer to home. According to the United Kingdom Parliament website dealing with the 1706 negotiations: “Those negotiations between the English and Scottish commissioners were held at the Cockpit, one of the government buildings at Whitehall in London. The commissioners did not carry out their negotiations face to face, but in separate rooms. They communicated their proposals to each other in writing. There was also a news blackout. Business commenced on 22 April 1706 when Lord Cowper, the Lord Keeper of the Great Seal, presented the Scots with the proposal that: “the two kingdoms of England and Scotland be forever united into one kingdom by the name of Great Britain; that the United Kingdom of Great Britain be represented by one and the same parliament; and that the succession to the monarchy of Great Britain be vested in the House of Hanover”.(6)

As to the Union itself, the United Kingdom Parliament website states: “The Acts of Union, passed by the English and Scottish Parliaments in 1707, led to the creation of the United Kingdom of Great Britain on 1 May of that year. The UK Parliament met for the first time in October 1707.”(7)

Thus, as far as the UK Parliament website is concerned, the UK Parliament did indeed meet for the first time in 1707. This is not the standpoint which Professors Crawford and Boyle adopt in their opinion, where they state at para 35:

“An alternative view [to the view that the union created a new state] 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. In support of this view, among other things:

“35.1 Scottish members joined Parliament at Westminster, but there was no new election of its English members.”

No support for this thesis is to be derived from the first Queen’s speech delivered after the Union by Queen Anne.(8)

Under the heading “First Parliament of Great Britain” it is noted:

“Nov. the 6th, the Parliament for the United Kingdom sat the first time at Westminster, to whom her Majesty made the following most gracious Speech.

'The Queen's Speech.

'My Lords and Gentlemen, It is with all humble Thankfulness to Almighty God, and entire Satisfaction to myself, that I meet you here in this first Parliament of Great Britain, not doubting but you come with Hearts prepared, as mine is, to make this Union so prosperous, as may answer the well-grounded Hopes of all my good Subjects, and the reasonable Apprehensions of our Enemies. ….

'My Lords and Gentlemen, In a Work so great and new in its kind as that of the Union, it is impossible but that some Doubts and Difficulties must have arisen, which however, I hope, are so far overcome, as to have defeated the Designs of those who would have made use of that Handle to soment [sic] Disturbances.

'There are several Matters expressly made liable by the Articles of the Union, to the Consideration of the Parliament of Great Britain, which, together with such others, as may reasonably produce those Advantages, that, with due Care, must certainly arise from that Treaty, I earnestly recommend to your serious Consideration.

'On my Part nothing shall be wanting to procure to my People all the Blessings which can follow from this happy Circumstance of my Reign, and to extinguish by all proper Means the least Occasions of Jealousy, that either the civil or religious Rights of any Part of this my United Kingdom can suffer by the Consequences of this Union.…'

“The Lords pausing upon her Majesty's Speech, the Commons forthwith resolved upon an Address of Thanks to her Majesty, which was this that follows.

'Commons Address.

'Most gracious Sovereign, We, your Majesty's most dutiful and loyal Subjects, the Commons of Great Britain in Parliament assembled, do, with all Thankfulness and Humility, acknowledge the Divine Goodness, in making your Majesty the glorious Instrument of uniting your two Kingdoms. [Emphasis added.]

'And we shall never be so far wanting in our Duty to your Majesty, and the Trust reposed in us by those we represent, as not to embrace all Occasions of confirming and improving the Advantages of this happy Union.…'

“To this Address her Majesty answered to this Effect;

'Queen's Answer.

'Gentlemen, I thank you very kindly for this Address: The Desires you express of taking all Occasions to improve the Advantages of our happy Union, are extremely agreeable to me.….'”

It is hard to avoid coming to the conclusion that if the theory supported by Professors Crawford and Boyle, that Great Britain or the United Kingdom became the continuator of England in 1707 while Scotland was extinguished, is to be accepted, the conclusion must equally be come to that Queen Anne and her first Parliament of Great Britain in 1707 were engaged upon some “charade”, to create the illusion that they were participating in such first Parliament and that a new state had come into existence uniting the Queen’s two kingdoms (as was stated in the Commons address), whereas in reality England was living on under a new name and Scotland was being extinguished.

Status of the Crown

Again one asks the rhetorical question: if, as I submit is the case, the official website of the British monarchy is correct in setting out that the Crowns of Scotland and of England remain to this day united under a single sovereign, how can it come about that upon the parliamentary Union of England and Scotland being brought to an end, Scotland would require to be treated as a “new state” according to the preferred view of Professors Crawford and Boyle?

It would seem that for this hypothesis to be correct, not only the territory of Scotland but its Crown also must have been absorbed by the English Crown. This is not a field where rules of international law are of the slightest assistance. Were Professors Crawford and Boyle considering, for example, a proposal for independence for the Principality of Wales, or for that matter carrying out a retrospective analysis of the acquisition of independence by the Republic of Ireland (the Kingship of which had been assumed by Henry VIII without Ireland ever acquiring separate international personality), their analysis of international principles in terms of the breaking away of a piece of territory from a larger state would certainly be of relevance. Within the context of the analysis of the 1707 Union of the two previously independent states of England and Scotland, such principles are however in my submission irrelevant.

In the course of its enquiry, the House of Lords Select Committee on the Constitution website offered the question: “What impact might Scottish independence have on the monarchy? Would an independent Scotland need a governor-general?”

Professor Boyle dealt with this question in his written evidence, and his reply is to be found at p 7 of the Evidence volume referred to above. He wrote: “It is not obvious that Scottish independence would have any specific impact on the monarchy as such. Her Majesty is already monarch of several states; adding one more changes nothing.”

It would thus seem that as far as Professor Boyle is concerned, the reason why, according to him, Scottish independence would not have any specific impact on the monarchy is that the Scottish Crown had already been incorporated, pursuant to the “rUK continuator” theory, within that of England. His reference to “adding one more” seems to be consistent, not with the re-emergence of the 1603 Union of Crowns, but with the concept that Scotland as a “new state” (a monarchy) would need a new, and in this case according to Professor Boyle’s theory, an “rUK” Crown.

Professor Boyle continued: “Nor is there any constitutional requirement for a Governor-General to be appointed, although in practice all other Commonwealth monarchies currently have a Governor-General. But this seems a matter for negotiation between the two states, taking into account the unique relationship between the monarchy and Scotland. Provision would have to be made to ensure that both countries retained the same rules on matters of succession to the throne and so forth, but this is already true for the other Commonwealth monarchies which have the Queen as Head of State.”

The inference to be drawn from this is that taking the “continuator” theory to its logical conclusion, Scotland would not upon independence retain the Queen as head of state as successor to the long line of Scottish monarchs, but would be required to install her as head of a “new” state in her capacity as successor to the long line of English monarchs.

Although the above hypothesis would certainly appear to flow from the “continuator” theory, it would be inconsistent with the unequivocal statement on the official website of the British monarchy as to the two Crowns remaining since the Union united under a single Sovereign. That view is consistent with the better view, namely that the English and Scottish Crowns, jointly and equally as from 1707, were responsible for “parenting” what is now the Commonwealth.

The “continuator” theory carried to its logical conclusion when applied to the monarchy would give rise to a further problem. As set out by Professor Walker under the subheading “Perpetual settlement”, the articles contained in the Treaty having been accepted by Queen Anne (thereby effecting an inter-state agreement within international law), the respective Parliaments engaged upon enacting the respective Acts of Union and in the course of this, Acts were passed for the protection of the respective churches of England and of Scotland. In each case these were declared to be fundamental and essential conditions of the Treaty and, Professor Walker points out, incorporated in the Acts of the respective Parliaments.

Once again the official website of the British monarchy states: “The monarch takes an oath to preserve the Church of Scotland at the meeting of the Privy Council immediately following his or her accession.”(9)

Taking such oath in such circumstances provides an illustration of the “inescapable fact” that the Union Treaty and Acts continue to be effective and respected. (See the Opinion of Lord Nicholls as member of the Committee for Privileges: “The inescapable fact, and this is what matters, is that the Union took place on the basis of articles thus described [as articles of the ‘Treaty of Union’].”(10)

Political realities

In this article I abjure strictly from considering political as opposed to legal issues. The two do however give the appearance of being intertwined in the oral evidence of Lord Wallace of Tankerness QC, Advocate General of Scotland, to the House of Lords Select Committee on the Constitution on 12 March 2014 in relation to the speech given by the Chancellor of the Exchequer on 13 February 2014. In that speech the latter had stated that the currency would not be part of negotiations in the event of a “Yes” vote in the referendum (p 48 of the Evidence volume cited above). Lord Lang of Monkton in posing a question (at Q33) stated:

“I am assume [sic] that part of the basis on which the Chancellor made his speech was the fact that the UK was the continuator state and would be in possession of the currency and he could already see that that would simply not be part of the negotiations. To what extent does that concept of continuator state endow the negotiating position more generally?”

Lord Wallace replied: “It is the crucial starting point. On your specific example, it allowed the Chancellor to make that statement. It is my view that the Bank of England as the central bank is an institution of the United Kingdom and would be the institution of the continuing United Kingdom”.

Returning to the United Kingdom Parliament website, one seeks in vain for anything to support the “rUK continuator” theory. The 25 Articles of Union are specifically referred to on the website(11) as: “The clauses which make up the Treaty of Union”. The six articles (1, 2, 3 and 22-24) which are referred to as “relating to the constitution” are summarised (as to articles 1 and 3) as follows:

Article 1: From 1 May 1707 the kingdoms of Scotland and England were to be "united into one kingdom by the name of Great Britain". The flags of St George and St Andrew were to be combined.

Article 3: The people of Great Britain were to be represented by one parliament, known as the Parliament of Great Britain.

The website goes on to note that: “The written Articles of Union with the commissioners' personal seals, were presented to Queen Anne at St James's Palace on 23 July 1706. The ceremony was witnessed by courtiers and foreign ambassadors.” (Emphasis added.)

Once again the rhetorical question arises as to why, on 23 July 1706, foreign ambassadors should be present when the Articles of Union were presented to Queen Anne? It is submitted that the inference may safely be drawn that they were present because they were witnessing an international treaty being concluded. Once again it is scarcely credible that it was merely a “charade” designed to deceive everybody including the international community, represented there by ambassadors, into believing that an agreement for Union was being concluded between independent nations, when in reality and despite the specific words being used, what was really happening was that Scotland and its Crown were being incorporated into England.

The website further explains that: “The term United Kingdom was originally just a shortened form for the United Kingdom of Great Britain, the name by which the united kingdoms of England and Scotland were officially known after 1707.” (Emphasis added.)

Two observations

Perhaps two matters emerge from the above discussion.

First, one may refer back to Lord Nicholls’ observation that what matters is that the Union took place upon the basis of “articles thus described” (as of the “Treaty of Union”). It cannot be ignored that the words of the articles are clear and have in essence been heeded for over 300 years. It should never be overlooked that the rule of law depends upon the observation and respect for agreements solemnly made. The “continuator” theory cannot apply without interpeting the Union in a manner different from the manner in which it has hitherto been heeded, not least on the UK Parliament’s own website. The “continuator” theory would instead require the interpretation that Scotland had been incorporated by England, just as the Principality of Wales was incorporated by England many centuries ago.

The authors of the “continuator” theory having in my submission erred in regard to the Union, have thus compounded this error in seeking to apply rules of international law appropriate to the breakaway or secession of an “incorporated” piece of municipal territory, but inappropriate in so far as the Kingdoms of England and Scotland are concerned, and, in the event that they should separate, inappropriate as far as the contingent right to the separate Crowns of those Kingdoms which is vested in HM the Queen is concerned. The authors’ initial mistaken understanding of the Union is thus in my submission compounded by the consequential application of inapplicable international law principles.

Clearly there is no principle of international law to prevent a renewal of a form of “Personal Union” of the Crowns of England and Scotland which the international community happily accommodated from 1603-1707, as it accommodated the later Personal Union between the Kings of the United Kingdom of Great Britain and Ireland with the Electors of Hanover 1714-1814 and with the Kings of Hanover 1814-1837. Indeed, as late as 1866 the UK Foreign Office was concerned at the effect of the annexation by conquest that year of the Kingdom of Hanover by Prussia, upon the contingent right of Queen Victoria to succeed to the throne of Hanover. (See A McNair, International Law Opinions, vol 1, pp 27-28, and my essay “From the ‘Personal Union’ between England and Scotland in 1603 to the European Communities Act 1972 and Beyond”, published for the University of Liverpool in Legal Visions of the New Europe, 1993.)

Secondly, in my submission, the “rUK continuator” theory, should it continue to represent the official UK Government standpoint on the “Union”, signals the end of what had been understood by the late Professor Walker, and more generally, as being the nature of the Union created in 1707, namely that it was a Union of two states and not an incorporation of one by the other. The “continuator” theory threatens to destroy partnership and establish dominion.

Whichever way Scotland votes at the forthcoming referendum, it would seem that the Union as analysed by Professor Walker is coming to an end. In the event of a “No” vote, the UK Government, relying on the “continuator” theory, may continue to maintain, contrary to what it has said in the past (see Scotland in the Union – a partnership for good, presented to Parliament by the then Secretary of State for Scotland, now Lord Lang, March 1993), that Scotland was now to be viewed as a former nation whose Crown and territory had been incorporated in 1707 within a greater England bearing the name Great Britain or the UK.

Jewel of an illustration

In the event of a “Yes” vote, negotiations over the end of the “Union” will almost certainly lead to issues arising as to whether or not the theory propounded by Professors Crawford and Boyle is correct.

Even the Personal Union between the United Kingdom of Great Britain & Ireland and the Kingdom of Hanover required a form of arbitration (the appointment of a Royal Commission) when it came to an end, to resolve a dispute, in this case as to the ownership of certain Crown Jewels. Almost echoing the incorporative nature of the “continuator” theory, one finds a memoir written by Münchhausen (Hanoverian envoy in London) of 20 April 1839 complaining:

“The undersigned is quite convinced that no rule of Law can exist in this country which makes Jewels once belonging to the Hanoverian Crown a property of the British Crown” (FO 34-72).

The British Government relied for its part, inter alia, on the argument that the property in dispute was situated in England. On 5 January 1843 the UK Government rejected the Hanoverian claim, insisting “that for the eighty years before 1837, the jewels had been treated as the jewels of Great Britain” (FO 34-72). The Hanoverian reply delivered on the same day asserted that “if they have been so considered and treated, the reason has been, that during the space above-mentioned the Crowns of Great Britain and Hanover have been vested in one Sovereign”.

Eventually in 1843 a Royal Commission was set up to resolve the issue. Queen Victoria appointed three commissioners, but the Commission aborted on the death of Lord Chief Justice Tindal (FO 34-96). A fresh Commission was set up in 1856 and the matter was eventually resolved in December 1857, giving some satisfaction to Hanoverian claims. Thus in 1858, 21 years after the Personal Union had ended, the Crown Jewels of Queen Charlotte, together with pearls substituting for those of the Electress Sophia (who would have become Queen had she outlived Queen Anne and whose pearls could not be found), were handed over to the Hanoverian embassy in London (FO 34-96).

One might reflect that, in a manner of speaking, “Bank and currency” could be looked on as today’s “Crown Jewels”.

In conclusion

A final thought. The Balfour Royal Commission on Scottish Affairs Report 1952-1954, presented to Parliament in July 1954 (to which the Law Society of Scotland gave evidence through its representatives), stated in its first Chapter: “Scotland is a nation and voluntarily entered into union with England as a partner and not as a dependency.”

If the above statement of the Royal Commission is correct, then the “rUK continuator” theory must in my submission be wrong.

Professor Walker might well have considered the above Royal Commision statement as a better starting point for a 21st century analysis of the Union than by seeking to construct a “rUK continuator” theory in the light, inter alia, of a document entitled a “treaty” prepared by local UK Government officials and read to a gathering of Maori chiefs (who had had no part in its composition and in respect of which controversy has arisen as to the translation provided), on the lawns of the residence of the then British Resident at Waitangi in New Zealand in 1840.

Ian Campbell CMG, former circuit judge and former Honorary Visiting Professor at the University of Liverpool
Click here for a follow-up comment related to the Law Society of Scotland paper Scotland's Constitutional Future 2

References

(1) See text at p 31 to footnote 4 at www.scotland.gov.uk/ (PDF download)

(2) See p 53 of the Evidence volume at www.parliament.uk/(PDF download) 
My own written evidence submitted to that committee is to be found at pp 37-42 of the same volume.

(3) See generally: British History Online, www.british-history.ac.uk/

(4) Their opinions are to be found at www.publications.parliament.uk/

(5) www.royal.gov.uk/HistoryoftheMonarchy/

(6) www.parliament.uk/about/living-heritage/

(7) www.parliament.uk/about/living-heritage/

(8) The text is available at British History Online: www.british-history.ac.uk/

(9) See www.royal.gov.uk/MonarchUK/QueenandChurch/QueenandtheChurchofScotland.aspx

(10) www.publications.parliament.uk/pa/ld199899/ldselect/ldprivi/108i/10806.htm

(11) www.parliament.uk/the-articles-constitution-and-trade/

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