The Bruges Group spearheaded the intellectual battle to win a vote to leave the European Union and, above all, against the emergence of a centralised EU state.

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Bruges Group Blog

Spearheading the intellectual battle against the EU. And for new thinking in international affairs.

Scotland, Separation and the Brexit Question

The SNP has abandoned ‘True Independence’ and Sturgeon is forcing Scotland to choose between a more powerful Scotland inside a Federal UK, or a less powerful one inside the EU and most likely the Eurozone.

David Roach

23rd April 2017
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I remember the SNP’s 2015 manifesto commitment very clearly: the more seats they won in Westminster, the more powers they would get back for Scotland. It was not their most original manifesto commitment, but it was consistent with the main theme of Scottish politics for the past few decades: that devolution should bring power closer to the people of Scotland.


It is not an idea which most of us who support devolution tend to argue with, nor was it the majority of Scottish voters who, on 7 May 2015, returned 56 SNP candidates out of a possible 59 to the House of Commons.


It puzzles me therefore, in this Brexit age, why Nicola Sturgeon was so counterintuitively against the United Kingdom leaving the European Union in the referendum last year, and why she is fighting so hard for Scotland to secure a bespoke deal on membership of the EU’s Single Market.


Of course, the First Minister is trying to manufacture a pretext for a second referendum in Scotland. Forget that for a moment: Nicola Sturgeon is playing political games. She has a ‘Party management issue’ following the influx of die-hard nationalists who swelled the SNP’s membership figures after their referendum defeat in 2014. Also, forget (but only for a minute) that since occupying Bute House the SNP has sought to find differences with England wherever there aren’t any; it's all part of the drive towards so called ‘independence’. 


I always imagined that the First Minister after a Leave victory would have been “champing at the bit” to empower her own office and Scotland. After all, she has a manifesto commitment to keep… Alas, no.


Constitutional observers will have noticed in recent years how the SNP has instead empowered the Scottish Government by centralising almost everything – from policing to planning for wind turbine projects – away from local government and into the hands of Edinburgh. Their attack on localism is an idiosyncrasy I fail to understand given their commitment to bring power “closer to The People”. But equally difficult to understand is the SNP administration’s shunning of the opportune moment that Brexit presents to “grab” yet more power.


Perhaps Nicola Sturgeon genuinely believes she can win the second referendum on so-called ‘independence’, despite recent opinion polls consistently showing Scotland would vote to stay part of the United Kingdom. Indeed, the Leader of the Scottish Conservatives Ruth Davidson, in a recent interview in The Daily Telegraph’s Scottish edition, warned the SNP that they would lose a rerun of the 2014 vote by an “even larger margin”.


Yet, despite a recent opinion poll by BMG Research showing that only one in four Scots want a second independence referendum before Brexit talks are complete, the Scottish Parliament voted through a request for a Section 30 order from Westminster, giving the Scottish Government the power to hold a legally-binding referendum on so-called ‘independence’ between the Autumn of 2018 and Spring of 2019.


Theresa May is adamant that there won’t be a second referendum… at least not until after the Brexit negotiations have been completed, and the United Kingdom has left the European Union… So another referendum could still yet take place at some point in the future.


For the sake of this paper, let’s imagine Nicola Sturgeon eventually gets her way, and the UK Government grants the Scottish Parliament’s request for a Section 30 order. What would a second referendum look like?


Timing is everything… And so is the question…

Regardless of your views on ‘independence’, it must surely be fair to both sides of the argument, and most importantly to the Scottish people, that voters be able to make their choice at the ballot box based on full knowledge of how Brexit will work.


As First Minister Alex Salmond was more or less allowed to dictate the terms of the first referendum on Scottish ‘independence’ which was set out in the Edinburgh Agreement of 2012.


I recognise that the Agreement was signed at a time when the SNP had a majority in the Scottish Parliament so it must have been hard for the then Prime Minister David Cameron to reject the Nationalists’ mandate to hold a referendum following the Scottish Parliamentary elections in May 2011. Two crucial things however did disadvantage the Unionist cause.


The first was effectively allowing Alex Salmond to hold a two-year referendum campaign which gave him the time he needed to build support for a Yes vote; a calculation which almost paid off.


The current occupier of Bute House is presumably pushing so hard for a second referendum now because she hopes to benefit from a similar time advantage. Sturgeon has an enthusiastic base of core supporters left over from three years ago, and she no doubt wants to put them to good use instead of waiting, possibly beyond 2020, for her second bite at the cherry.


This time the Nationalist calculation is that a snap poll in the middle of what will of course be challenging Brexit negotiations can exploit apparent ‘uncertainty’ and deliver them victory – before Scotland is ‘dragged out’ of the European Union ‘against her will’.


The UK Government’s position is therefore right. It not only takes away the initiative of the SNP to ‘gerrymander’ the timing in their favour, but it also ensures that any second referendum in Scotland is based on fairness and experience of an independent United Kingdom after Brexit.


The second crucial thing was the question; ‘Should Scotland be an independent country?’ The very word ‘independence’ has a positive and proactive meaning which handed the argument to the Nationalists.


Objectively, few of us would ever choose to be ‘dependent’, and yet as you will read later, it was completely disingenuous for the Yes campaign to argue in the positive that Scotland would have been ‘liberated’ or ‘emancipated’ when ‘true independence’ was never actually on offer.


Undoubtedly, the question handed Nationalists the advantage. Voters were given a binary choice between another Nationalist positive, and a Unionist negative: ‘Yes’ and ‘No’. It was a loaded question, which is exposed as such when compared with the process undertaken to compose the question for the EU referendum.


After much debate, and representations from all sides, the UK’s Electoral Commission ruled that a simple ‘Yes’ or ‘No’ vote would not be fair, nor indeed suffice, in a complex and multifaceted debate on whether we should ‘remain’ or ‘leave’ the European Union. In the end, they came up with a neutral, unemotional question which handed neither ‘Leave’ nor ‘Remain’ the advantage.


And so it must surely be right that if Scotland does hold a second crucial referendum on our constitution, the UK Electoral Commission be handed the responsibility again of writing the question.


The situation is now different from that in 2011: the SNP has no mandate to pursue another referendum, nor a majority in Holyrood. This time, Downing Street is just as entitled to have a say on the timing and question as Bute House.


The UK Government should make it clear that Scottish voters have a right to experience life in a truly independent United Kingdom, both the pros and cons of life after Brexit.


If there is to be a second Scottish referendum, it should only be held two or three years after the United Kingdom has left the European Union. And only then!


But whatever decision the Scottish people make in that ballot, the choices before them will be much more nuanced than last time.


The choices before the Scottish people

At this point it is important to clarify what the SNP mean by ‘independence’. Cast your mind back to the Scottish Government White Paper in 2014 and you will remember that they proposed a formal currency union with the rest of the United Kingdom in the event of a ‘Yes’ vote.


This was soon rejected by the then UK Chancellor George Osborne, forcing the Scottish Government to propose the ‘Sterlingisation’ option which meant unilateral use of the Pound, but with the disadvantage that Scotland would have no control over monetary policy, nor have a Central Bank which could act as a lender of last resort.


In short, what the Yes campaign proposed on the ballot paper was separation, with dependency on the impulses of a foreign power Scotland would have spurned.


Scotland would have been unable to set interest rates, print money, or devalue. Ceding the fundamental levers of power which shape your economy does not allow you to claim true independence.


‘True Independence’, the preferred option of ‘more committed’ Nationalists who make up a significant tranche of the SNP's grassroots, means full fiscal and monetary autonomy; a Scottish currency with its own central bank and interest rate; and the ability to levy taxes and borrow money.


A ‘True Independence’ supporter resists membership of global institutions such as the European Union, some even NATO, and demands a Scottish Armed Forces made up of whatever the UK Government agrees to share with Scotland once she has left the Union. For them her own territorial waters, including the much-discussed North Sea oil and fishing, a land border with the UK and her own immigration policy, are an important part of reclaiming Scottish sovereignty.


Without EU membership, a ‘truly independent’ Scotland would of course not be part of the EU’s Single Market to which she exports £12.3bn of goods and services, but free from the rulings of the European Court of Justice. Perhaps more crucially in financial terms, she would no longer be a ‘member’ of the UK's ‘Single Market’ where her exports are worth £49.8bn.


The path to ‘true independence’ is rocky, and the SNP know this!


It is why when a Currency Union and then Sterlingisation was rejected by the UK Government in 2014, they announced that the latter would be a transition currency. But a transition to what? Official SNP policy up until the 2008 Financial Crash had always been for an ‘independent’ Scotland to join the Euro.


The SNP has rather bashfully always put great faith in the idea that the best path to ‘freedom’ is to separate Scotland from the UK and join a Federal United States of Europe. Its belief has always been that the rights of its citizens, security and economic future can be protected inside a Federal Europe, but you could be forgiven for not knowing this. It's not a policy they advertise with any great enthusiasm.


In fact, since the then First Minister Alex Salmond was forced to drop his much-vaunted idea of an ‘Arc of Prosperity’ (the proposed economic and trading alliance between Ireland, Iceland and Norway), and then subsequently drop formal plans to adopt the Euro, the SNPs silence has been deafening.


Before a second referendum takes place in Scotland, the SNP will need to come clean. If ‘True Independence’ is left off the ballot paper again, then they need to be clear what exactly it is they will be asking the Scottish People to vote for.


To me the choice they want to offer Scots is becoming more and more apparent:


-       Separation from the UK and dependency on the EU

A second Scottish referendum could end up being a hybrid plebiscite, not so much debating ‘independence’, but answering a refined Brexit question. And that is no bad thing for Unionists.


Assuming the Scottish Government were successful, and Spain did not veto their membership, re-entering the EU would mean adopting the Euro – taking the SNP back full circle to 2008; a more honest time for manifesto promises.


There is no avoiding the fact that Scotland would have formally to adopt the currency. Scotland would be forced to inherit the European Central Bank’s interest rate, and a monetary policy geared towards maintaining the success of the German economy. Much like Greece, Scottish jobs and inflation would be secondary concerns.


But all this assumes that Scotland could meet the convergence criteria of a less than 60% debt to GDP ratio, and reducing the deficit to GDP ratio below 3%. Such a feat is likely to take the Scottish Government years. According to the TaxPayers’ Alliance in 2015/16 Scotland had a deficit to GDP ratio of 9.5% – the highest in the EU, twice that of the UK, and even higher than that of Greece. Scotland under the SNP is some way off meeting these targets.


If the timetable remains on track, in two years the United Kingdom will leave the Common Fisheries Policy and Common Agricultural Policy, both of which have caused significant damage to Scotland’s fishing and farming communities. It is clear from reading the Scotland Act that competency over rural affairs and fishing, not to mention the environment, business regulation, and transport, rests with the Scottish Parliament.


There can be no doubt that powers and responsibilities returning from Brussels in these areas are going straight to Scotland. The UK Government is committed to this aim, and I am encouraged that it is right, and will happen.


Having already created the most powerful devolved Parliament in the world, Brexit is going to make the Scottish Parliament even more powerful.


It seems extraordinary therefore that a Party which said in its manifesto, and has argued for decades, that it wants more powers for Scotland, is now committed to giving them away. At a time when the SNP could empower the Scottish Parliament, they are preparing the ground for a referendum which would see them giving newly returned powers back to Brussels. It is a bizarre paradox.


Make no mistake, ‘independence’ would not be on the ballot paper. A vote for the SNP’s interpretation of ‘independence’ would be a vote to make Scotland less powerful. Scotland would be anything but an ‘independent nation’, but instead a small separated one with hardly any voice inside the EU and Single Market, while losing access to the UK’s Single Market and the trade deals which the UK is seeking to sign with the more prosperous parts of the world.


It is why, following the EU referendum in which pro Leave SNP MPs and MSPs were allegedly ‘gagged’, Eurosceptic Nationalists are finding their voice. The SNP’s former Deputy Leader Jim Sillars has said he would not vote for so-called ‘independence’ in a second Scottish referendum if it meant re-joining the EU after Brexit. In a recent interview with The Herald newspaper he said he would abstain and believed many SNP supporters would follow suit:


“I do not want to be run by an unelected, self-serving elite… I, for example, could not vote Yes if on the ballot paper it said, ‘We wish the Scottish state to be a member of the European Union’, and I’m not alone in that… One of the biggest miscalculations by Nicola Sturgeon is to believe that the 1.6m Scots who voted Remain would automatically then vote to go back into the European Union… That means Ruth Davidson, the leader of the Tory party, and all the Tories who voted to Remain, would in fact vote to leave the United Kingdom and take a Scottish state into the European Union. I think that’s fantasy.”


Jim Sillars is not alone. Survation estimates that 34.9% of surveyed voters who backed the SNP in last year’s Holyrood elections voted to leave the EU in the UK-wide referendum, presenting Sturgeon with a difficult conundrum.


As a Leaver, I share Jim Sillars sentiments towards the EU, and as a Unionist I part company with him over ‘independence’. But as someone who fought hard in 2014 to preserve our precious 300-year-old Union I believe the UK Government must do all it can to find a new settlement that Scotland and the Scottish people can be comfortable with; a settlement that has broad support, and longevity.


This is where the second option on the ballot paper can play a significant part in answering the Brexit Question.


-       Staying in an independent Federal UK

This second option should be an invitation to Scottish voters to empower their Parliament through Brexit. Scotland is a divided country so this invitation needs to be open to both Nationalists and Unionists alike. With 45% of voters demonstrating very clearly in 2014 that they are not content with the status quo, it will be hard in the future to maintain the Union without reforming the way that it works for all its people.


The second option needs to say that if it is independence you crave then look no further than the United Kingdom which, having invoked Article 50 on 29th March 2017, is well on the path to regaining hers, and is committed to sharing sovereignty among the family of nations.


The UK constitution has undergone dramatic changes in the last twenty years which has seen the creation of devolution in Scotland, Wales and Northern Ireland, and since then further powers devolved.


The Scottish Parliament is the most powerful devolved parliament in the world. In financial terms, it is more powerful than most federal states with comparative legislatures, including Germany, the United States and Australia.


Brexit presents Scotland with an opportunity to repatriate to existing institutions even more powers over fishing, farming, the environment, business regulations, transport, and the law.


Should Scotland choose this second option she would naturally keep Sterling and continue to be part of the decision-making process which sets interest rates and determines money supply.


She would be protected by HM Armed Forces, remain a member of the Commonwealth, NATO and have access to the 30 or so trade deals on offer to the UK which amount to roughly 60% of the world’s GDP. She would also continue to benefit from the Barnett Formula.


But if Scotland is to benefit from Brexit by staying in the United Kingdom, then others within the family of nations should benefit too by having the same powers and responsibilities.


After years of patchwork reform, we have ended up with a constitutional ‘dog’s breakfast’; an unfair and unclear system where the West Lothian Question remains unanswered and political and democratic inequality exists between the nations.


In November 2014, the Conservative MP Andrew Rosindell sought to rectify this by introducing a Ten-Minute Rule Bill in the House of Commons to create a federal United Kingdom, with separate parliaments for each of the four nations, leaving the UK Parliament responsible for defence, foreign affairs, national security, and the macroeconomy. Unfortunately, his Bill didn’t make progress.


Many nationalists in Scotland however, and not just those who voted Leave, would be attracted by a second option which incorporates this thinking. Federalism would constitutionalise the existing and newly repatriated powers of the Scottish Parliament, and further enhance its role in deciding policies which the governing party believes will directly improve the lives of the Scottish people.


The attraction of the second option to those who up until now have identified themselves as ‘Yes’ voters is an obvious one, as a federal constitutional arrangement inside the UK is a more empowering alternative to the emasculating option that separation and EU dependency offers.


Brexit and Federalism can save the Union

In a post-Brexit, independent Federal UK, the new beginning a second option offers would address the problem of our politics being far too centralised, and our country being far too divided.


Federalism would clearly set out in statute the powers and responsibilities of the Governments of each federal state, be it England, Scotland, Wales or Northern Ireland, and of course the principle of pooling resources across the nations of the UK.


There could be no disputes from nationalist governments in the Celtic fringes playing a game of divide and rule with Westminster, and where there might be disputes, these could easily be resolved by The Supreme Court. We would move towards a more harmonious constitutional settlement.


Post-Brexit federalism would see off divisive nationalism and set the glue that would bind us together as one People sharing this new unique island at the centre of the world, and which we all call our home.


So, before Nicola Sturgeon calls for another referendum on so-called ‘independence’, let the people of Scotland, and indeed all the peoples of the nations of the United Kingdom, first experience a newly reformed federal country outside of the European Union, at least for a significant number of years. Let Scots experience just how great it could be, before the SNP plunge them back into a divisive, dishonest referendum.


Like any Conservative, Unionist, or Leaver, I am optimistic about our country’s future; eternally optimistic that our best years are yet to come. And as I weigh up the opportunities that Brexit will bring, I am filled with great optimism that if we combine it with federalism, we won’t just keep our country together, we will have strengthened it for generations to come.

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The truth only Europhiles can tell about the EU

The EU is on the road towards a single state and is already largely there.

30th March 2017
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The European Union is an attempt to unify Europe under one centralised authority in a fundamentally similar fashion as tried for instance by the Roman Empire and Napoleon Bonaparte. The difference is that this time it's being attempted through a different method.


This is not a reference to the words of some eurosceptic as someone might assume. Like for instance a supporter of Britain leaving  the EU. This is on the contrary a reference to a speech by former French President Valéry Giscard d'Estaing, the main author of the European Constitution which was later renamed the Lisbon Treaty and is today the EU's supreme legislation.


The former French President delivered his speech on 29th May, 2003 in the city of Aachen, Germany while accepting the Charlemagne Prize for his contribution to EU integration. His words were meant to describe the EU's future with the then proposed European Constitution in place:


"Our continent has seen successive attempts at unifying it: Caesar, Charlemagne and Napoleon, among others. The aim has been to unify it by force of arms, by the sword. We, for our part, seek to unify it by the pen. Will the pen succeed where the sword has finally failed? In the scales of history, will the feathered quill outweigh the bloodstained blade?"


Last year, during the British EU referendum campaign, now Foreign Minister Boris Johnson pointed out pretty much the same thing while interviewed by the Sunday Telegraph. However, unlike in the case of Giscard d'Estaing Johnson's comments were condemned by EU proponents.


Johnson said European history had seen repeated attempts to unify the continent under a single authority. People such as Napoleon, Adolf Hitler and others had tried this with tragic results. Now it was being done through a different method. While Giscard d'Estaing did not refer to Hitler directly he clearly did so indirectly with the words "among others". Whether intentional or not.


Giscard d'Estaing went on saying he thought this time the unification of the European continent would succeed "because our success today is based on the free choice of the peoples of Europe to organise their common future. We shall have the answer in the months to come."


The EU got an answer when the European Constitution was rejected in referendums in France and the Netherlands in 2005. How did Brussels react to that free choice of the French and Dutch peoples? They decided that the voters of other EU members should not be asked and the European Constitution would be re-branded as the Lisbon Treaty and implemented anyway.


The main force driving the EU integration has indeed been the centuries old desire to create a single European state. With or without public approval. It's actually quite hard to find an EU leader in the last thirty years or so who hasn't called for a single state in one way or another.


This ultimate objective has already largely materialised. While the EU is not yet formally recognised as a single state it can be argued that in many ways the bloc is today more politically centralised than some formal states such as Switzerland. In fact it has been pointed out that in certain areas the Lisbon Treaty entails more centralised authority than the United States Constitution.


However, not everyone can obviously point this out in the eyes of EU proponents. This point can be made in order to justify further EU integration but not to criticise it. That, however, doesn't change the fact that the EU is on the road towards a single state and is already largely there.

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Brexit and the Supreme Court

The Supreme Court has no jurisdiction in preventing the Prime Minister from invoking Article 50 to leave to EU. Its ruling is wrong. Jurisdiction was passed to the People, who have primary authority, by Parliament.

25th January 2017
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One must now wonder whether in his memoirs Lord Neuberger, President of the Supreme Court will say, of the unintended consequences of the Court’s Brexit decision, “Of course, the People had made a valid decision to leave the EU but at the time it seemed the right thing to send it back to Parliament.”


We are now ruled not by law but by legalisms.


Lord Neuberger and those Justices who voted with him are wrong.  Parliament is not sovereign.  Parliament is an administrative system for carrying out the will of the People.  In the final analysis, the People are sovereign.  That was established by the French revolution of which the French are justly proud.  In this county, for better or worse, Oliver Cromwell acted for the People at the time of a useless Parliament and an extravagant King.  


Similarly, it is the role of the Courts to codify the will of the People.  It was not the Courts that, in their love of justice, forced legislation to give women the vote or to abolish slavery on a protesting People.  If the Supreme Court is to create law as it is said to have done in this instance, it must be in accord with the wishes expressed by the People.


Brexit is a matter in which the Courts have no jurisdiction.  The Attorney General should not have stipulated that they had jurisdiction following Parliament’s clear decision to mandate the People to decide the matter.  One can hardly expect such august, learned and powerful men to draw limits to their own powers.  The Courts lost jurisdiction when Parliament handed the Brexit decision to the People and implementation to the Government.   That was what the People were told and that is the position.  David Cameron said publicly that in the event of a referendum vote to leave the EU he would give Article 50 notice the next day.  Clearly, he expressed what Parliament intended and his powers in the matter.   That he resigned rather than give Article 50 notice speaks of his ethics rather than the legal position.


Let us be plain about the situation.  The Prime Minister, Theresa May, underestimated the degree of disdain for democracy in this country.  Delay in giving Article 50 notice while combatting the whining, demands and invective of the Remainers permitted time for the rich and influential to devise means to keep a system from which they benefit but the People and the United Kingdom do not.  The Prime Minister is acting with honesty and integrity, with the good of the Country and the People’s wishes in mind.  Unfortunately, honest persons often underestimate the duplicity and unscrupulousness of the rich and powerful who seek only their own interests. 


It was always foreseeable with whom the Supreme Court would side.  Its statement that Parliament is sovereign is a smoke screen.  Parliament unequivocally passed an unqualified, simple, majority decision to the People by the 2015 Act and statements by Government Ministers.  All the evidence is that this is so; there is nothing to the contrary.  The Supreme Court has failed to uphold democracy, the consequences of which are not clear, but they will not benefit the country.  The Court has permitted an opening for delay and manoeuvre by those who wish to remain in the EU.  I understand that their Lordships have considered this matter, by intention, without consideration of the possible consequences of their ruling.   I would inform them, unqualified in law as I am, that law is always about consequences.  That is its purpose.   We have the case of the Iraq war as an exhibit.


It was clear the day after the referendum result on 23 June 2016 that a situation like this would occur when the Remainers immediately said that the referendum was ‘advisory’.  On 12 July I wrote a letter to the Chairman of the Treasury Select Committee that was considering the referendum result.  Perhaps inevitably it counted for nothing, but it was clear what had to be done.  The position is unchanged.  The Court is wrong.  Here is the letter:


*    *    *


It is a sad and extraordinary day when one must say that our Supreme Court is wrong.  We are experiencing events indicating that we are living in extreme and unstable times.  We must deal with the times with confidence in our abilities and culture against the trouble-makers and back the Prime Minister in doing so.  There is no-one else remotely capable of doing it.


By Christopher King MSc DipM DMS


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Robert Oulds
Its also bad law. The ECA 1972 was amended when the Lisbon Treaty was put through Parliament to incorporate Article 50, it was cle... Read More
Thursday, 26 January 2017 22:49
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Independence or incoherence? Why the Scottish government is misleading Scots

Scotland’s former First Minister Alex Salmond and (then) Deputy First Minister Nicola Sturgeon in 2007, at the launch of Choosing Scotland’s Future – a White Paper on a possible independence referendum. Picture by The Scottish Government.

Scottish First Minister Nicola Sturgeon has commented on several occasions in recent weeks on the subject of a second Scottish independence referendum. She first warned that she was not “bluffing” about calling another referendum, should the United Kingdom also leave the European single market. She then ruled out holding such a vote in 2017, effectively holding the threat of it over the British government as it moves ahead with Brexit.

There’s nothing wrong with many in Scotland, as in other European regions like Catalonia, wishing for independence. Indeed, notions of sovereignty, identity, and more representative democracy were all integral to Britain’s vote to leave the European Union (EU). Where such movements lose coherence, however, is in their insistence on remaining in the EU.


Many, many laws pertaining to the UK, including Scotland, originate in Brussels. Though the exact proportion of British laws stemming from the EU is hotly contested, it is likely quite large, with some estimates ranging up to 62%. What is more important, however, is how significant some of the EU’s competencies are. An “independent” Scotland within the EU would face the same quotas on its fisheries, abide by the same agricultural policy, honour the same trade deals signed devised in Brussels, and have absolutely no control over its borders. Its government also intends to continue using the British pound as its currency. In this sense, the stated intention of being “in the driving seat of [Scotland’s] own destiny and to shape [its] own future” loses its meaning. Without full control over essential areas like borders and monetary policy, a nation is not independent.

Moreover, the EU has always made clear that to secede from a member state is to secede from the Union. As such, Scotland deciding to leave the UK in order to retain its EU membership is not only impossible, but dangerously misleading to Scots.

Beyond the glaring incoherence of the Scottish government’s position, Scots have already decided on the matter of independence, and it is irresponsible for the Scottish government to use the threat of a future referendum as a political shuttlecock. It is common practice to hold referenda once in a generation, especially if their results are as decisive as the last time Scots were consulted, in 2014 (55% in favour of remaining in the UK). Sturgeon’s postponed threat of another Scottish vote depending on how “hard” Brexit ends up being is more of a bargaining chip than a true expression of Scotland’s will. This cynical approach to politics serves no one. Scots wishing to remain in the UK are under constant threat of a second referendum, while Scots wishing for independence are being manipulated for narrow political gains.

The desire for independence is unambiguously good. All willing nations deserve to gain their sovereignty, including most recently the United Kingdom. The Scottish government’s position rejecting Westminster while embracing Brussels does not reflect a genuine yearning for independence. Rather, it smacks of political opportunism. The people of Scotland –both for and against independence– deserve better.

This article first appeared on


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Asking Parliament to Vote on Article 50 TEU for the Third Time?

The very purpose of the referendum was to establish a decision-making procedure for leaving the EU. This procedure was implemented by the June referendum.

5th December 2016
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In R (Miller) v. Secretary of State for Exiting the European Union [2016] EWHC 2768 (Admin) (3rd November 2016), the Divisional Court determined that the government may not trigger Article 50 of the Treaty on European Union (TEU) without legislation being passed by Parliament. Article 50 states:

1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements. … 3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, agreement with the Member State concerned, unanimously decides to extend this period. 

The claimants were members of the public described by the Divisional Court as “parties … whose interests are potentially affected in different ways” (para. 7 of judgment in Miller). The essential reason for the conclusion of the Divisional Court that legislation is needed was that triggering Article 50 TEU will inevitably have the effect of changing domestic law because those elements of EU law which Parliament has made part of domestic law by the enactment of the European Communities Act 1972 will in due course cease automatically to have effect.

The judgment seems open to criticisms on a number of grounds, chiefly the following: (i) it fails to adequately take into account the relationship between the UK legal system and the international legal system, understood here to include the European Union legal system, and the doctrine of dualism that applies to the incorporation of the EU Treaties into EU law; (ii) relatedly, its fails to adequately take into account the manner of incorporation of the EU Treaties into UK law by a method of reference or incorporation, and in particular, by reference to the entire body of EU law; (iii) the distinction drawn between categories of rights under EU law does not establish that some rights protected by UK law will be set aside in  way contrary to the European Communities Act 1972, and (iv) and the judgment does not fully consider any constitutional effects of the European Union Referendum Act 2015.

Parliament will need to vote on how to replace EU law in UK law when Brexit actually happens. The Miller judgment requires that Parliament votes to being the process of Brexit too. At a political level, the Miller judgment is very significant in that the House of Lords may well vote against triggering Brexit, and it would take one year for the House of Commons to be able to bypass the House of Lords under the Parliament Acts 1911-1949.


(i) The relationship between the UK legal system and the international legal system, understood here to include the European Union legal system, and the doctrine of dualism:

The essential argument made by the Divisional Court to sustain its conclusion in Miller was that triggering Article 50 TEU would mean that the UK could leave automatically after 2 years and that leaving the EU would undermine or alter the effects of the European Communities Act 1972 (‘ECA 1972’) and change or reverse the rights of individuals created by the ECA 1972. The Divisional Court noted the principle of parliamentary sovereignty as common ground: “Parliament can, by enactment of primary legislation, change the law of the land in any way it chooses. There is no superior form of law than primary legislation, save only where Parliament has itself made provision to allow this to happen. The ECA 1972, which confers precedence on EU law, is the sole example of this.” (para. 20). However, this includes the way in which ordinary EU legislation (i.e. EU legislation other than the Treaties, in the form mainly of Regulations and Directives) is passed at EU level. Legislation under Article 288 of the Treaty on the Functioning of the European Union is adopted in Brussels by the EU Council (of Ministers), with UK ministerial participation, as envisaged in s. 2(2) ECA 1972 (as noted in paras. 52-52 of the judgment). This procedure does not involve any vote by the UK Parliament, yet clearly changes UK law on a regular basis. This can only be because, as the Divisional Court says in paragraph 20 quoted above, Parliament has allowed this to happen.

The issue in Miller could thus be expressed as whether or not Article 50 TEU has also already been enabled by legislation in a similar way. Despite the Divisional Court conclusion in Miller, arguably the answer is yes. 

The Divisional Court continued that “An important aspect of the fundamental principle of Parliamentary sovereignty is that primary legislation is not subject to displacement by the Crown through the exercise of its prerogative powers” (para. 25) and the Court noted that this predated the Glorious Revolution of 1688 and could be found in The Case of Proclamations (1610) 12 Co Rep 74. Further, the Divisional Court noted that “Another settled feature of UK constitutional law is that, as a general rule applicable in normal circumstances, the conduct of international relations and the making and unmaking of treaties on behalf of the United Kingdom are regarded as matters for the Crown in the exercise of its prerogative powers”(para. 30). Thus, the executive exercises the power to engage in foreign and international relations, but it cannot do so in a way that has an effect on legislation passed by Parliament.   

Concerning the relationship between international law and UK law, the principle of dualism should first be clearly explained. The principle of dualism is recognised within the international legal system as one of two ways in which national legal systems can interact with the international legal system. The other is monism. Monism and dualism differ in the manner of incorporating international treaties or conventions into the national legal system. In a dualist system, which indeed the UK is, two steps are needed for an international treaty or convention to become part of UK law: (i) signature and ratification by the executive (in a monist approach, ratification also incorporates treaties into national law) and (ii) followed by incorporation into national law by Parliament. The argument of the Divisional Court – that because triggering Article 50 TEU would affect rights exercisable under EU law, it would therefore deprive the ECA 1972 of its effect and, thus, required an Act of Parliament to appropriately amend or repeal the ECA 1972 – seems reasonably persuasive at first, but this is so only because the judgment in Miller really does not take into account (i) the difference between producing effects in domestic law and producing effects at European/EU level and (ii) the way in which parliament has incorporated by reference the whole body of EU law into UK law.

Triggering Article 50 TEU would indeed produce legal effects at EU level, but it would not amend or repeal the ECA 1972. This is especially so when it is taken into account that the ECA 1972 has been amended by the European Union (Amendment) Act 2008, which was enacted specifically to give effect in UK law to the Treaty of Lisbon, and the Treaty of Lisbon included in it Article 50. This is the first occasion on which Parliament has already in effect voted on Article 50 TEU. The wording of the European Union Amendment Act 2008, which was not quoted in the Miller judgment, helps illustrate this. Seciton 2 of the European Union (Amendment) Act 2008 states:

Addition to list of treaties

At the end of the list of treaties in section 1(2) of the European Communities Act 1972 (c. 68) add— “; and 

(s)the Treaty of Lisbon Amending the Treaty on European Union and the Treaty Establishing the European Community signed at Lisbon on 13th December 2007 (together with its Annex and protocols), excluding any provision that relates to, or in so far as it relates to or could be applied in relation to, the Common Foreign and Security Policy;”


This is important, because the Divisional Court in Miller specifically referred to the importance of parliamentary control as evidenced by the listing of the Treaties in s. 1(2) ECA 1972 (para 93(8) of the judgment):


Finally, we have already drawn attention to the significance of the fact that the principal EU Treaties which are given effect in domestic law are specifically listed in section 1(2). Section 1(3) provides for parliamentary control before any ancillary treaty can be made and regarded as a “Treaty” for the purposes of the Act, and hence given effect in domestic law.   The Crown cannot simply make and ratify ancillary treaties in the exercise of its prerogative powers and thereby create legal effects in domestic law. It is not compatible with this degree of parliamentary control – listing the main “Treaties” in the ECA 1972 itself and providing for a high degree of Parliament control by way of approval by resolution of both Houses before an ancillary treaty qualifies as a “Treaty” for the purposes of the Act – that Parliament at the same time intended that the Crown should be able to change domestic law by the simple means of using its prerogative power to withdraw the United Kingdom from the Treaties.

Yet now the Treaty of Lisbon, which created Article 50 TEU, is listed under s. 1(2) of the ECA1972 (as amended by the 2008 Act), but the Divisional Court did not attribute any significance to this. The method of incorporation that was chosen by Parliament to give effect to EU law – incorporation by reference – confirms that triggering Article 50 TEU will not change UK law, but simply apply a procedure set out in the ECA1972 itself as amended.


(ii) The manner of incorporation of the EU Treaties into UK law by a method of reference or incorporation:

The wording of s 2(1) of the ECA1972, which is the clause of the ECA 1972 that incorporates EU law into UK law, is broad enough to cover both the incorporation of individual rights and other procedures:


(1)   All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression“enforceableEUright”and similar expressions shall be read as referring to one to which this subsection applies.


In its judgment, however, the Divisional Court speaks as if only individual rights were incorporated and not Article 50 TEU, when both are subject to the same principle of incorporation by reference (see e.g. para. 62 et seq). What incorporation by reference means, is that instead of re-enacting all of the individual provisions of EU law in the form of UK Acts, instead, EU law is globally incorporated by a single provision of UK law, s. 2(1) ECA 1972, with the relevant Treaties thereby incorporated being listed in s. 1(2) ECA 1972. Thus, both the original Treaties and all amending Treaties, including the Lisbon Treaty, have been incorporated in the same way. Seen in this light, the reasoning of the Divisional Court becomes problematic. The Divisional Court suggests that triggering Article 50 will denude the ECA 1972 of its legal effect:

As Parliament contemplated, it was only if it enacted the ECA 1972 (and then amended it to refer to later EU Treaties) that ratification of those Treaties could occur. The reality is that Parliament knew and intended that enactment of the ECA 1972 would provide the foundation for the acquisition by British citizens of rights under EU law which they could enforce in the Courts of other member States. We therefore consider that the claimants are correct to say that withdrawal from the European Union pursuant to Article 50 would undo the category (ii) rights which Parliament intended to bring into effect, and did in fact bring into effect, by enacting the ECA 1972.(para. 66)


However, this is to suggest that Article 50 is in some way in conflict with the ECA1972: that triggering Article 50 will end up in a situation where the ECA1972 will no longer apply, yet it is exactly because the ECA 1972, as amended, has provided for Article 50 TEU to be a part of UK law that this is not so. Article 50 TEU is a part of the overall body of EU law that the ECA 1972 has incorporated. Article 50 needs to be seen as a part of this body of EU law and as something applies across the whole of EU law. By triggering Article 50, the government is providing for a procedure in EU law itself. The relationship between Article 50 TEU and the rest of EU law should be seen in the ordinary way in which different legal provisions relate to each other. Article 50 is lex specialis (specific law) and lex posterior (recent law) in regard to the rest of EU law. It is lex specialis or specific law in the sense that it provides for the particular or specific situation of leaving the EU. It is lex posterior or more recent law in that in effect amends EU law so that EU law itself provides for its own dis-application to a Member State, i.e. it amends the EU Treaties to this effect.


Contrary to what the Divisional Court suggests, there is no inherent or unresolvable conflict between Article 50 and rights created by EU law. Article 50 TEU regulates how EU rights are to be dis-applied. When Article 50 TEU is triggered, there will not be any provisions of UK law that have been left on the statute book, but which now have no legal effect. Yes, EU laws that have become part of UK law will be automatically dis-applied after the 2-year period (unless the UK and all the Member States agree to extend the period), leaving gaps in UK law. These gaps will be for the legislature to fill by replacing the ECA 1972, when Brexit actually happens, with an Act of Parliament that specifically sets out what rights previously set out in EU law to be continued in UK law.       

(iii) The distinction between categories of rights under EU law:

The parties and Divisional Court agreed on a distinction between three categories of right that would be involved in the triggering of Article 50 TEU:

- Category (i) rights capable of replication in the law of the United Kingdom, e.g. EU rules on maximum working hours

- Category (ii) rights enjoyed in other Member States of the EU by UK citizens, e.g. free movement rights   

- Category (iii) rights that could not be replicated in UK law, e.g. the right to stand for election to the European Parliament.

The Divisional Court suggests that triggering Article 50 would undo category (ii) rights. Triggering Article 50 would undo all of these rights. The Divisional Court seems mistaken in characterising, in para. 59, references by national courts Article 267 TFEU as a ‘right’, where decision to make a references to the Court of Justice are decided upon by national courts according to the criteria in the caselaw of the Court of Justice, and individuals cannot require a reference to be made as a right. But the same argument as above applies here concerning the undoing of rights: Parliament has provided for the undoing of these rights by incorporating Article 50 into UK law already.   

(iv) The European Union Referendum Act 2015:

The Divisional Court was very brief in its discussion of the effect of the European Union Referendum Act 2015, which can be seen as the second time Parliament has voted on Article 50 TEU. The Divisional Court’s conclusion is hard to reconcile with the parliamentary and institutional facts surrounding the passing of the Act. Referenda are a relative novelty at UK level. Apart from the referendum on the Alternative Voting System held in 2011, the last referendum at UK level was also on the EU, or European Economic Community as it then was, in 1975. Both the legislation proving for the 1975 and 2015 referenda simply stated that there would be a referendum on membership, i.e. the legislation did not say anything about the effects of the referendum. However, this does not seem to justify the conclusion of the Divisional Court that the referendum held in June 2016 was purely ‘advisory’ unless very clear language to the contrary is used in the referendum legislation in question (para. 106). In support of its conclusion, the Divisional Court did not cite any authority. It did refer to “a background including a clear briefing paper to parliamentarians explaining that the referendum would have advisory effect only” (para. 107). However, this does not seem sufficient to dispose of the constitutional effects of the referendum. It is clear from the House of Commons debate on the European Union Referendum Bill that the government intended that the decision of the people in the referendum would determine the issue of UK membership. The then Foreign and Commonwealth Secretary, Philip Hammond MP, stated on the European Union Referendum Bill:

This is a simple, but vital, piece of legislation. It has one clear purpose: to deliver on our promise to give the British people the final say on our EU membership in an in/out referendum by the end of 2017. (Hansard, Vol. 596, 9th June 2015)

Giving the people the final say means that Parliament must accept the referendum result. This is reflected in the fact that the vote to leave precipitated the resignation of the then Prime Minister, David Cameron MP.


When legislation is ambiguous, the rule of statutory interpretation in Pepper v. Hart [1992] UKHL 3 allows the courts to refer to Hansard, the official record of debates in Parliament, to help determine its meaning:

In my judgment, subject to the questions of the privileges of the House of Commons, reference to Parliamentary material should be permitted as an aid to the construction of legislation which is ambiguous or obscure or the literal meaning of which leads to an absurdity. Even in such cases references in court to Parliamentary material should only be permitted where such material clearly discloses the mischief aimed at or the legislative intention lying behind the ambiguous or obscure words.In the case of statements made in Parliament, as at present advised I cannot foresee that any statement other than the statement of the Minister or other promoter of the Bill is likely to meet these criteria.(Lord Browne-Wilkinson, p.22 of Bailii judgment text)

At the very least, the question of the status of the referendum seems by no means as straightforward as the limited discussion in the judgment in Miller suggests. In her judgment in Jackson v. Attorney General [2005] UKHL 56, Lady Hale indicated that Parliament might be bound by a provision of legislation requiring a referendum to be passed:

If the sovereign Parliament can redefine itself downwards, to remove or modify the requirement for the consent of the Upper House, it may very well be that it can also redefine itself upwards, to require a particular Parliamentary majority or a popular referendum for particular types of measure. In each case, the courts would be respecting the will of the sovereign Parliament as constituted when that will had been expressed. But that is for another day.(para. 163 of judgment in Jackson)

The Divisional Court in Miller refers to a briefing paper, but pays no attention to the clear statement above from the lead member of the government advocating the passing of the Bill. Under Pepper v. Hart, it was clearly open to the Divisional Court to refer to Hansard, and the above quoted statement by Philip Hammond is quite clear that the very purpose of the referendum was to establish a decision-making procedure for leaving the EU.  This procedure was implemented by the June referendum.

By Gerard Conway

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