Law and Lawyers: On borders ~ a divided UK

Thursday, 15 April 2021

On borders ~ a divided UK

"The course of the English-Welsh border in front of The Bridge Inn has changed little since it was first defined by an Anglo-Saxon king in the eighth century" - How the pandemic resurrected ancient border - Atlas Obscura 2 April 2021.

Borders have been problematic throughout human history.

In Public International Law, the State is defined by three constituent elements: a population, a territory and a governmental organisation. A territory obviously implies the existence of borders.

Borders between States are

a complicated matter and, historically, the actual line taken by many a border has been settled either by conflict or by agreement. Many disputes remain.

Even where a border is agreed it is often the case that absolutely precise border demarcation has not been achieved. For example, a survey of the USA- Canadian border continues to this day - International Boundary Commission.

The UK:

The constituent nations of the United Kingdom have three examples of very complex borders which have existed for centuries but, for the most part, without absolutely precise delineation.

Northern Ireland is a constituent nation of the UK and comprises the Six Counties - Antrim, Armagh, Down, Fermanagh, Derry/Londonderry, Tyrone. However, the actual counties bordering on the Republic of Ireland (ROI) have very complex boundaries and there are hundreds of places where the border can be physically crossed.

In recent years, the avoidance of a "hard border" between Northern Ireland and the ROI has been, and continues to be, a key factor in Brexit arrangements. The border is the only land border between the UK and the European Union.

Six Counties - Northern Ireland

Wales has a geographically complex border with England. It has followed broadly the same line since the 8th century and follows Offa's Dyke for some of its 160 mile length, The modern boundary was fixed in 1536, when the former marcher lordships which occupied the border area were abolished and new county boundaries were created. The administrative boundary of Wales was confirmed in the Local Government Act 1972. Whether Monmouthshire was part of Wales, or an English county treated for most purposes as though it were Welsh, was also settled by the 1972 Act, which included it in Wales.

The significance of the England-Wales border increased when devolved government was created for Wales by the Government of Wales Act 1998 and the border gained additional significance during the Covid-19 pandemic because Coronavirus Restrictions were imposed in Wales by the Welsh government and, in England, by the UK government. There have been marked differences of detail. As an interesting and light-hearted article in Atlas Obscura notes - "In early 2020, as the spread of COVID-19 triggered regional travel bans and lockdowns, Welsh restrictions diverged from those in neighbouring England. Police could fine British citizens suspected of crossing the border for non-essential reasons. In May, when England opened up for the summer, Wales stayed in lockdown. And so it went for much of the year, one country opening just as the other shut down."

Scotland was also responsible for its own Coronavirus Restrictions legislation.

The ancient border between England and Scotland is also geographically complex and has a long and turbulent history. For the most part, the boundary was settled by The Treaty of York of 25 September 1237 signed by King Alexander II of Scotland and King Henry III of England. The boundary runs North-East to South-West from the Tweed estuary (east coast) to the Solway Firth (west coast). It lies north of Hadrian's Wall and crosses the Cheviot Hills.

Even after the Union between Scotland and England, this border continued to have significance because of the different legal systems of Scotland and England.

Scotland - England

The Scotland Act 1998 provides that - "Her Majesty may by Order in Council determine, or make provision for determining, for the purposes of this Act any boundary between waters which are to be treated as internal waters or territorial sea of the United Kingdom, or sea within British fishery limits, adjacent to Scotland and those which are not."

An Order in Council was duly enacted and took effect on 1 July 1999. See

The Scottish Adjacent Waters Boundaries Order 1999

Scotland and England are both constituent parts of the same nation - the United Kingdom. Hence, the 1999 Order should probably not be taken as settling an international boundary as opposed to settling a division for UK administrative reasons. However that may be, it seems likely that this matter will raise its ugly head if a move for Scottish independence proceeds further.

The future?

Things could get even more difficult if, at some time in the future, an independent Scotland were to accede to the European Union. Brexit was contrary to the wishes of the Scottish people as expressed in the 2016 referendum and it is no secret that the dominant party in Scottish politics - the SNP - wishes to rejoin the EU. In that event, the ill-defined border across the beautiful (desolate and dazzling) Cheviots would become both an international boundary and a boundary between England and the European Union.

It will be sad if the politics of friction between the constituent parts of the present-day UK prevail. It would mark the end of the United Kingdom and I hope that this does not come about. If it does, the ancient boundaries between the nations will only compound the difficulties. The future of the Union is likely to become an all-embracing issue in the not too distant future.