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Paul Reid: Where now after ‘no’? A starter for 10.

paulIt is often said that one of the greatest characteristics of the United Kingdom’s unwritten constitution is its ability to evolve and adapt to change.  From the Prime Minister’s statement this morning, it appears that this 307year-old constitution has a lot of evolving to do in a very short space of time.  Perhaps a strength, or perhaps a weakness, of the constitution has been its ability to carry on whilst fundamental questions like the ‘West Lothian question’ have remained un-answered.  Those will now have to be answered and the period for doing so is said to be months not years.  That appears a tall order for a constitution that declared the intention to replace the House of Lords with an elected chamber over a century ago.  The inescapable questions that arise from the Scottish vote are many and touch all corners of the Union and almost all corners of the constitution.  Many blogs and other articles will be penned in the days, weeks and months ahead as the issues are discussed, debated and then (if the timetable holds) decided.  So here is a starter for ten (or rather, ten for a starter):

  1. “English votes on English laws” appears to be the presumptive answer to the West Lothian question.  That must be unobjectionable in principle but the practice appears more challenging.  You need only pause for a moment to recognise a number of difficulties: first, in a system of asymmetric devolution excluding the Scottish MPs cannot be the answer.  “English votes on English laws” must also call for the exclusion of Welsh MPs and Northern Irish MPs when the matter under debate relates to matters that have been devolved to those respective countries.  Thus the House of Commons has various different compositions with different consequences for the majority of the government of the day.  Secondly, the exclusion of non-English MPs works fine if the Bill before the House of Commons is exclusively English.  What about Bills which predominantly relate to the law of England but the odd clause has a Scottish (or Welsh, or Irish) element to it?  A third consequence flows from the a-symmetric nature of the current devolution arrangements: what is an “English only” issue is not clear.  Some form of harmonisation of the devolved powers would surely be necessary for this to be a workable long-term solution.
  2. The most obvious difficulty with “English votes on English laws” arises when the government relies upon non-English MPs to make up its majority.  At one level, this ought not to prevent the exclusion of non-English MPs: if the majority of English constituencies returned an MP from a given party, that party has a democratic claim to govern England.  But it presents significant practical difficulties: it would be unworkable in the context of the current House of Commons to have a one government for “English” matters and another government for “UK” matters.
  3. When Dr (now Lord) Reid was appointed Health Secretary questions were asked about the appropriateness of that appointment, representing as he did a Scottish constituency, given health had been devolved to the Scottish Parliament.  Is it now untenable to have a Scottish MP (or, with their respective spheres of devolution a Welsh or Northern Irish) appointed to a portfolio that has been devolved?  Again, that would appear unobjectionable in principle.  Perhaps a convention has emerged (or will soon emerge) to that effect?
  4. But what of the office of Prime Minister: could a Scottish MP now hold that office?  That must be open to doubt if “English votes on English laws” were to become a reality.  But it would surely be equally unacceptable to the other nations of the United Kingdom if the consequence of “English votes on English laws” resulted in a convention (at least) that the Prime Minister represent an English constituency.
  5. And what of the legislation that Parliament will pass when only composed of English MPs?  Is it the act of a sovereign legislature, beyond the challenge of the courts?  That is not the case for any other devolved legislature.  But if legal limits are to be imposed on this reformed parliament they will have to be clear and imposed by legislation and not changes to parliamentary procedure.  What of human rights?  Not a popular subject if the popular press are to be believed.  But each of the current devolved legislatures have their competence delimited by reference to the ECHR.  Will this new form of House of Commons be subject to similar limitation?  It would be a curious result if the English legislature was vested with the power to abridge the fundamental rights of those living in England in a way that other devolved legislatures were barred from.
  6. Does all this not lead necessarily to an English Parliament?  If so, does that not also require a separate English government?  Federalism?  Entrenchment of the broader devolution settlement so that it is formally put beyond the reach of the Westminster Parliament?  Given the overwhelming size of England how will be balance of power between the First Minister of England and the Prime Minister of the United Kingdom be struck?  Is that a matter to be resolved by convention or by law?
  7. Next, a point that I must credit to a non-lawyer friend of mine (an engineer in fact).  Looking at the ‘referendum map’ of Scotland it is largely red.  As I type this over my morning coffee it is 27-4 to ‘no’ on a count of the local authorities.  That appears a pretty decisive victory for the ‘no’ campaign.  Of course, look at the actual votes cast and we see that, across the country, the result is, with a bit of rounding, 55-45: a much closer contest.  That reminds us of the distorted results that a first-past-the-post system can produce.  If this were a two-horse election race, ‘no’ has won a landslide.  But the ‘yes’ vote, with a turnout in excess of 85%, has had more votes cast in its favour than any government that Scotland has ever elected!  Is the voting system to be part of the constitutional discussion that is about to take place?  If not, why not?
  8. If the electoral system is put on the agenda that should go hand-in-hand with finally completing reform of the House of Lords.  Whether elected, appointed or a mixture of the two, if we can solve the ‘West Lothian question’ in a matter of months then the ‘House of Lords question’ must also be capable of resolution.  Indeed, any truly comprehensive package of constitutional reform could not ignore it.
  9. And if we are to have a comprehensive package of constitutional reform, in fact, even the reforms mentioned by the Prime Minister this morning, will it be back to the polls?  The timetable envisages these reforms being concluded before the next UK general election.  The three main parties may well be agreed on the need for the reform.  But none of them have a mandate from the UK electorate for such wide-reaching reform.  Should the package of reforms not be put to the people for approval?  If that is to be done before the 2015 election, a referendum is the only vehicle for that.  Given the relatively trival matters that must now be submitted to a referendum under the European Union Act 2011, it seems hard to accept substantial and fundamental constitutional reform for the whole United Kingdom without asking the 96% of the population that did not vote in Scotland’s referendum whether they want that.
  10. If the process that has been started touches on so many areas of the constitution, is it responsible to do this in a matter of months.  Is this not the catalyst for a root and branch review of the constitution?  Everything should be on the table, not just the devolution settlement: electoral system, human rights, House of Lords and sovereignty (which necessitates resolving our stance on the EU).  That will take years but if the current system is ‘broken’ (to use the Prime Minister’s word) then it needs a proper repair and not yet another running repair.

 

Finally, I cannot resist a comment on the result.  Hopefully the analogy I am about to draw will not belittle too much the constitutional significance of what has happened in the last 24 hours.  But it seems to me apt.  It is often said that supporting the Scottish football team prepares you for anything.  I now think that is literally true.  The feeling I have this morning, having found myself in the minority of my countrymen, is reminiscent of the feeling I am all too often left with as I walk away from Hampden having just watched Scotland play one of the top footballing nations: weeks before the match victory is accepted to be impossible; but as the day nears a belief begins to build that we might pull off an unexpected result; but once the match has finished you walk away thinking ‘we almost got there’, ‘so proud of how we played today’, ‘that was always likely to be the result’, ‘at least we gave them a run for their money’ and, the consolation thought, ‘after a performance like that I am sure we will do it next time’.  Today feels the same, but without the consolation of next time to look forward to.  But, equally, the reaction of “no” voters I have spoken to reminds me of another common emotion of the Scottish football fan, this time having just played a so-called ‘lesser’ football nation: relief, ‘that was a bit close for comfort’, ‘we made that hard for ourselves’ and ‘we better improve going forward’.

Let’s hope that final emotion endures.  If the legacy of the referendum is that meaningful constitutional reform finally comes to the United Kingdom, then something really positive will have come from the vote.  Whether that can be done in the timescale promised is another matter.  Indeed, there is a good argument to take our time and do this properly.  But to finish the football analogy, all too often you arrive at Hampden for the next match after that ‘too close for comfort’ result to see the same players, in the same formation with the same tactics.  Memories can be short.  Hopefully the unreformed House of Lords can stand as a reminder of how momentum can be lost and the commitments made today are seen through to their conclusion.

Paul Reid is an Advocate with Ampersand Stable and a part-time tutor of Public Law at the University of Edinburgh

Suggested citation: P. Reid, ‘Where now after ‘no’? A starter for 10.’ , UK Const. L. Blog (19th September 2014) (available at http://ukconstitutionallaw.org).

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Alan Trench: What follows the referendum: the process of negotiating Scottish independence, or of delivering Devo More

Alan TrenchBack in May, I gave a lecture at the University of Ulster’s Belfast campus about what might follow the vote in the Scottish referendum. I’m afraid I’ve only now had the chance to tidy that up for wider reading. It’s available on the Social Science Research Network here, or can be downloaded directly HERE. The lecture as a whole is somewhat lengthy (around 10,000 words), so this post picks out the key points.

Perhaps the most important and novel part of the lecture is the second one, where I map out what would follow a Yes vote – the sort of steps needed, particularly on the rUK side to tackle the many uncertainties that will follow. This is a separate issue from that of the strengths of each party in the negotiation, discussed HERE earlier in the week.  This would call for a great deal of imaginative thinking, in the midst of a first-order constitutional crisis. In particular, it seems to me that:

  • The negotiating process needs to move with all due speed, to preserve the democratic legitimacy of both rUK as well as an independent Scotland. There is no good reason for rUK to seek to prolong the process, and plenty of reasons for it not to.
  • The 2015 UK General election presents grave problems for that – the time lost to campaigning in an election and briefing a possible incoming new government means it will be impossible to make a proper start in negotiations before June 2015, since even provisional agreements reached under the present government might lack support from the new one.
  • One option – which appears to be gaining some support, particularly among Conservatives – is to postpone the 2015 election. But the present government has already been in office for 4½ years, and has no mandate to negotiate something so important to rUK as Scottish independence.
  • A better option would therefore be to hold a general election early, before the end of 2014, so there was both certainty about the composition of the UK/rUK Government and that government had a political mandate for independence negotiations. This would need approval by a two-thirds majority in the Commons, under the Fixed-term Parliaments Act 2011.
  • Those negotiations will not be quick or straightforward – not just because of the difficulty or complexity of the issues to be considered, or how trade-offs might be made between issues, but because they are a matter for parliaments as well as governments. Parliaments will need to approve legislation giving effect to the final outcome, and in Westminster’s case also to authorise much of the necessary preparation on the Scottish side. There will need to be close co-operation between governments and their parliaments, both to ensure proper democratic control and accountability in the process and to simplify the process of approving the agreement at the end of it.
  • A special UK Parliamentary committee, probably mostly meeting in private to preserve the confidentiality of proceedings and negotiating positions, would be an important way of helping to accomplish that.
  • There would also be problems about the involvement of Scottish MPs and ministers in the independence process on the UK/rUK side. It would be contrary to the interests of the people of rUK for MPs sitting for Scottish seats to be involved in that process; as those negotiations affect first and foremost the people of England, Wales and Northern Ireland, only their representatives should be involved – whether in negotiating teams, Cabinet or Cabinet committees when considering independence-related matters, or when those are considered in Parliament. This is the West Lothian question on steroids.
  • The need to ensure a broad consensus of support within rUK for the agreement also means that the Opposition – whoever it may be at the time – will need to be involved in the process. In particular, figures from the Opposition should be included in the rUK negotiating team, and party leaderships kept abreast of all issues under consideration. Again, while this complicates the process of the negotiations, it will simplify the process of approving and implementing an independence agreement.

Much of this sits oddly with usual British constitutional practice. But a Yes vote would trigger extraordinary times, and a need for extraordinary measures to cope with an unprecedented and very difficult situation.

As far as a No vote is concerned, the lecture maps out the programme that was clearly being advanced by the Unionist parties in May, and advanced by the IPPR’s Devo More project: separate party policies, cross-party agreement on the key elements of that, early consideration of them following the referendum and implementation through endorsement in the 2015 election manifestoes. That process would clearly need to include the SNP as well as the pro-union parties, unless the SNP chose not to take part. Since I gave the lecture, the Scottish Conservatives have published their proposals in the form of the Strathclyde Commission report (and I have amended the text to reflect that). Subsequent developments have hardened the commitment of the parties both to the need for joint action and a clear timetable, as well as a Scottish-focussed process to agree the main features of ‘enhanced devolution’.

None of this is about simply ‘giving Scotland more powers’. It is about getting devolution right, so that it enables Scottish voters to have what they have wanted for more than a decade: extensive self-government within the Union. That will benefit other parts of the UK too, and not just by achieving a greater degree of constitutional stability. It will ensure that if Scottish taxpayers choose to spend more on devolved Scottish services, they bear the fiscal consequences of that; this would not be at the expense of taxpayers outwith Scotland.

There is, however, a clear need for that to be followed by a wider process covering the whole UK, and the best way to achieve that would be through a conference of members of the UK’s parliaments and legislatures; MPs, MSPs, AMs and MLAs. This is the idea underpinning the Strathclyde Commission’s recommendation for a ‘committee of the parliaments and assemblies’ . Through their election, these figures all clearly have a mandate and authority that other methods of selection would not give them.

Whatever happens on 18 September takes the UK into new and uncharted constitutional waters. It is important that everyone understands what is likely to follow, and what the world is likely to look like in a few months’ time.

 

Alan Trench is a Professor of Politics at the University of Ulster, also having affiliation to the University of Edinburgh and the Constitution Unit at University College London, and he runs the blog Devolution Matters. This post is reproduced from that blog with permission.

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Debate: Jo Murkens: Scotland and the EU: A Comment

jo-mur1What would be the characteristics of an ‘independent’ Scotland? And what kind of a Member State would it be? Intriguingly, the pro-independence Yes Scotland campaign promises continuity on key issues, such as the currency, the Queen, and the European Union. In a recent paper, Sionaidh Douglas-Scott claims that the process of continuing EU membership for an independent Scotland will be ‘relatively smooth and straightforward’ – a claim that has been taken up by Yes Scotland. (Given the at best ambivalent and at worst antagonistic attitude of the UK, the promise of continuity is not necessarily good news for the European Union). The strength of this claim rests on Douglas-Scott’s preference for Article 48 TEU (the Treaty revision procedure) rather than Article 49 TEU (the Treaty accession procedure). In other words, she assumes that the EU would welcome Scottish independence with a simple and internal procedural change, rather than with an insistence on a cumbersome accession process.

There are two problems with using Article 48. First, it is the provision by which existing member states organise their relationships with non-Member States and international organisations. Unlike Article 49, it was not designed to bring about the institutional changes needed to accommodate a new Member State. Second, in his evidence to the House of Commons, Prof. Kenneth Armstrong exposes the ‘smooth and straightforward’ claim as fallacious by highlighting the risky nature of Article 48. For starters, the Scottish Government would have to rely on the UK government to initiate and manage the negotiation process. But in addition, Article 48 would create an opportunity for the UK government to hijack the process in order to renegotiate the UK’s own relationship with the European Union. Even assuming goodwill from the other Member States about the principle of membership of an independent Scotland, the UK’s renegotiation strategy in particular, and the negotiation process as a whole, may very well meet with fierce resistance. Far from being ‘smooth and straightforward’, Prof. Armstrong points to a danger that:

…the process [under Article 48] becomes lengthened rather than shortened. If it was a normal accession process under Article 49, there is every reason to believe it possible that the negotiation element could be conducted by the preferred date for independence. That would still leave open the ratification of that agreement, which might take several months, if not longer, to do.

Douglas-Scott’s paper is further marked by an absence of political context. She is correct to note that the EU is not the slave of public international law, and that it is capable of reacting in ‘pragmatic and purposive’ fashion to current affairs unregulated by the Treaties, as it did for example in 1990 when Germany unified. But she does not discuss the current politics of secession in the EU, which is very different from the situation in 1990. German reunification did not result in immediate Treaty change. East Germany acceded to West Germany, and Germany accepted the (unchanged!) Treaty rules relating to the institutions, the weighting of Council votes, and the allocation of seats in the European Parliament. From the perspective of the European Community in 1990, reunification did not change the way it operated and was, therefore, waved through.

By contrast, Germany, France, Italy, and Spain can have no interest in witnessing the diminution of the United Kingdom and in setting a precedent for other European secessionist movements. Experience shows that the international community as a whole shows an interest in the activities of states especially in cases of break-ups. Spain, Slovakia, Romania, Greece, Cyprus did not recognise Kosovo’s unilateral declaration of independence in 2008 in order not to set a precedent for separatists in their own countries.

That said, Douglas-Scott is correct to assume that there will be Member States who will be supportive of Scottish independence, especially if clear support for it was demonstrated in a referendum. If the United Kingdom resolves the matter in a procedurally fair and transparent manner, the attitude of the Commission and the other Member States may be positively influenced and Scotland’s application could be fast-tracked. The UK’s attitude may in turn depend on how Scotland behaves during the independence negotiations, and whether the negotiations have been conducted co-operatively and amicably, or the reverse.

Finally, an independent Scotland will not be fully compliant with the EU’s acquis communautaire. As Daniel Kenealy has noted, ‘Scotland is only compliant by virtue of being part of the UK and thus covered by the UK’s institutions and regulatory structures’. The loss of membership status following separation means that Scotland would no longer benefit from the UK’s derogation from the single currency and from the Common Travel Area (Schengen Agreement). An independent Scotland would not inherit the opt-outs the UK negotiated for the Treaty of Maastricht. The formal position is as follows. All Member States (except UK and Denmark, who secured opt-outs in the Maastricht Treaty) are expected eventually to join the Mechanism and to adopt the Euro. All the new Member States since 2004 are legally obliged to adopt the Euro at some future point, with no opt-out clauses. If Scotland wishes for membership to be ‘smooth and straightforward’, should it not better prepare itself to adopt the Euro and to sign up to Schengen?

In sum, Douglas-Scott’s reliance on Article 48 is far from persuasive on technical legal grounds (is it the correct legal basis to accommodate a new Member State?) as well as for strategic reasons (the negotiation process may well be dominated by the UK’s negotiating team pursuing its own agenda). But even if an independent Scotland’s continued membership in the EU were ‘smooth and straightforward’, Douglas-Scott provides no answer to the question as to what kind of member an independent Scotland would be (Europhile? Eurosceptic? Europhobic?) and what the terms of membership would be. Instead, her contribution perpetuates the language of continuity for membership and for citizenship which, given the UK’s often fractious relationship with the EU, is not necessarily a good thing. The outside observer is none the wiser as to the characteristics, indeed the meaning, of ‘independence’, and completely in the dark as to whether an independent Scotland would welcome the EU.

 

Dr. Jo Eric Khushal Murkens is an Associate Professor at the Department of Law of the London School of Economics and Political Science (LSE).

This posted originally appeared on the Verfassungblog, and is now reposted on this blog as part of a collaboration between UKCLA Blog and the Verfassungblog.

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Debate: J. H.H. Weiler: Scotland and the EU: a Comment

Joseph-H.H.-Weiler-avatar-1409860918-96x96The Scottish referendum on independence is upon us. At some levels it is an easier and ‘cleaner’ case than that of Catalonia: The United Kingdom, in a mature political decision, has allowed this referendum thus removing any objection from either a British constitutional perspective or from public international law.

The people of Scotland, many of them at least, resent ‘outside interference’ in what they consider their internal business – the exercise of a right to self-determination. It is indeed their business; but this does not mean that outsiders cannot, or should not, have a view and express that view driven by both prudential and normative considerations.

The issue of greatest concern outside Scotland and the United Kingdom concerns the future, or otherwise, of an independent Scotland within the European Union. Membership would not be automatic – I find the argument for automaticity based, as it has been by some, on the fact that the people of Scotland are citizens of the Union unpersuasive. Citizenship of the Union is predicated on being nationals of a Member State. And if Scotland becomes independent, her people, by their own sovereign decision, would no longer be nationals of a Member State. They are becoming independent from the United Kingdom. (Let me open a first parenthesis. In part the matter is one of framing: If, say, Belgium were to decide to split, it would not be nearly as clear which, if any, of the two – Wallonia, Flanders – would “remain” a Member State and which would have to accede. Perhaps neither.)

Be that as it may, there should be no legal impediment for Scotland to become a Member State if she satisfies the condition for Membership, political and legal, one of which is a unanimous decision of all Member States. On the technical side it should be a relatively easy accession, since the European legal acquis is part of the political and legal fabric of Scotland. The adjustments necessary will be, for the most part, of a technical nature. (A second parenthesis: It is said that for Scotland to accede she would first have to be an independent State i.e. forcing her into an interregnum of non-membership. That is why some lawyers suggest Scottish “accession” through Treaty amendment rather than through Accession. I think Treaty amendment is a circuitous way, and normal Accession is the correct route; but I do not think a real interregnum would be necessary. The would-be independent Scotland could negotiate her accession in her current status, go through all the European constitutional hoops save the final signature of the Act of Accession. That can be planned to take place, literally on the very same day that Scotland becomes formally an independent State. One would first complete the last formal act of independence – some piece of paper will be signed by, presumably the British Monarch and the Scottish authorities and immediately the Act of Accession could be signed. Scotland would be a non-Member State for the duration of it takes to sign those two pieces of paper. This is of course a short-hand for a fairly complex procedure but it could be done.)

The issue, therefore, is not legal but political. Should the Member States of the European Union embrace an independent Scotland? In an Editorial in EJIL some time ago I took a dim view of plans for Catalan independence – which earned me the ire of many. I do not think that any editorial I wrote provoked so much hate mail. I take a similarly dim view of the Scotland case. Make no mistake: I harbor great affection for Scotland and its people. My father admired them, as he did any small people living in the shadow of a giant and yet managing to preserve a keen and rich sense of distinct national identity. I also do not doubt their distinctiveness as a nation.

Why then this dim view? One consideration, not trivial, is prudential: I am convinced that Scottish independence coupled with simultaneous, or close to simultaneous, membership of the Union will provoke a domino effect among many nations and regions in Europe. Independence pure and simple is in many cases threatening and unattractive. There is a long list of candidates, in Spain, France, Italy and elsewhere who would be emboldened by the Scottish example. Feeding this frenzy for secession and independence in Europe is the premise that all these new States will somehow find a safe haven as Member States of the European Union. Absent that assumption, appetite for independence would be significantly muted the rough seas of “going it alone” far more threatening.

I do not believe that given the decisional structure of the Union, even on the most optimistic ideas for reform, it would be helpful for Europe to have a growing number of Member States. Saying Yes to Scotland would require saying yes at least to all other constitutionally lawful secessions.

But the main consideration is not prudential. I do not take the view, normatively speaking, that having a distinct national identity within a democratic State in and of itself justifies independence. It is simply ethically  demoralizing to see the likes of Scotland and Catalonia reverting to an early 20th Century post World War I mentality, when the notion that a single state could encompass more than one nationality seemed impossible – hence the special treaties on minorities which abounded in the breakup of the Ottoman and the Austro-Hungarian Empires. These arrangements were well intentioned but lacking in political imagination and eventually, let us not hide the ugly facts, feeding and leading to that poisonous logic of national purity and ethnic cleansing. Again, make no mistake: I am not suggesting for one minute that anyone in Scotland or Catalonia is an ethnic cleanser. But I am suggesting, that the “go it alone” mentality is associated with that kind of mindset.

More than any other country with which I am familiar, the current constitutional arrangements in the UK allow a full vindication of a Scottish cultural and distinct political identity. Scotland is not a Chechnya. So what is the case for independence? It is precisely that notion that having a distinct national identity justifies secession, a notion fueled in my view by a seriously misdirected social and economic egoism, cultural and national hubris and the naked ambition of local politicians.

But the reality is more mundane than this. I watched the televised debates. Most of the sparring was utilitarian: Will we better off, especially economically. More employment, yes or no. Better social network, yes or no et cetera et cetera. So this is what will ultimately decide things.

This runs diametrically contrary to the historical ethos of European integration. The commanding moral authority of the Founding Fathers of European integration – Schumann, Adenauer, de Gaspari and Jean Monnet himself – was a result of their rootedness  in the Christian ethic of forgiveness coupled with an enlightened political wisdom which understood that it is better to look forward to a future of reconciliation and integration rather than wallow in past historical rights and identity. There were, of course, utilitarian considerations, but they were not at the normative core. The European Union is struggling today with a decisional structure which is already overloaded with 28 Member States but more importantly with a socio-political reality which makes it difficult to persuade a Dutch or a Finn or a German, that they have a human and economic stake in the welfare of a Greek or a Portuguese, or a Spaniard. Why would there be an interest to take into the Union a polity such as an independent Scotland predicated on a regressive and outmoded nationalist ethos which apparently cannot stomach the discipline of a multinational nation? The very demand for independence from the UK, an independence from the need to work out political, social, cultural and economic differences within the UK, independence from the need to work through and transcend whatever gripes there might be, disqualifies morally and politically Scotland and the likes as future Member States of the European Union. Do we really need yet another Member State whose decisional criterion for Europe’s fateful decisions in the future would be “what’s in it for us”?

Europe should not seem as a Nirvana for that form of irredentist Euro-tribalism which contradicts the deep values and needs of the Union. Thus, the assumption of Membership in the Union should be decisively squelched by the countries from whom secession is threatened and if their leaders, for internal political reasons lack the courage so to say, by other Member States of the Union.

It would be hugely ironic if the prospect of Membership in the Union ended up providing an incentive for an ethos of political disintegration. There really is a fundamental difference to the welcoming into the Union of a Spain or a Portugal or a Greece or the former Communist countries emerging from ugly and repressive dictatorships and a Scotland, which is part of a functioning democracy which recognizes in word and deed the distinctiveness and wide and deep autonomy of Scotland and its people. In seeking separation Scotland would be betraying the very ideals of solidarity and human integration  for which Europe stands.

I hope the people of Scotland will  reject the seduction of separatism and tribalism. And if they do not – well, let us wish them, as I wished the Catalans, a Bon Voyage in their separatist destiny.

Joseph H.H. Weiler is President of the European University Institute (EUI).

This posted originally appeared on the Verfassungblog, and is now reposted on this blog as part of a collaboration between UKCLA Blog and the  Verfassungblog.

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Event: 2014 Public Law Lecture

ThomsonBangor University School of Law is delighted to host the 2014 Public Law Lecture sponsored by the journal Public Law, a Thomson Reuters publication.

The lecture, hosted as part of the school’s 10th Anniversary Celebrations, will be delivered by the Rt. Hon. The Lord Thomas of Cwmgiedd, Lord Chief Justice of England and Wales

Thursday 9th October 18:30

Main Arts Building, Bangor University, College Road, Bangor, Gwynedd, LL57 2DG

For further information and to register your attendance please visit: https://www.eventbrite.com/e/lord-chief-justice-of-england-and-wales-annual-public-law-lecture-sponsored-by-thomson-reuters-tickets-12523834125

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Andrew Le Sueur: announcing the launch of UKAJI

UKAJI logo 2014UKCLA members and blog followers interested in administrative justice will want to know about the launch of a new project to create the United Kingdom Administrative Justice Institute (UKAJI). Based at the University of Essex School of Law for the next three years, the initiative is made possible thanks to a £350,000 grant from the Nuffield Foundation.

The project is cross-disciplinary and has three aims (1) linking the policy, practice and research communities involved in administrative justice; (2) developing a coordinated research agenda; and (3) identifying and tackling capacity constraints. More information about the project is on the UKAJI website and blog; and you can follow the project on Twitter. Work will start in earnest in October 2014. In the meantime, we are seeking to appoint a senior research officer.

The ‘core team’ of the project consists of:

  • Varda Bondy, Senior Research Fellow, De Montfort University, formerly Director of Research, Public Law Project
  • Ray Burningham, formerly Chief Executive, Administrative Justice and Tribunals Council, currently adviser to Welsh Government on Administrative Justice
  • David Cowan, Professor of Law and Policy, University of Bristol
  • Christian Gill, Lecturer in Administrative Justice, Queen Margaret University
  • Christopher Hood, Gladstone Professor of Government and Public Administration, Oxford
  • Andrew Le Sueur, Professor of Constitutional Justice, University of Essex
  • Tom Mullen, Professor of Law, University of Glasgow
  • Lucinda Platt, Professor of Social Policy, LSE
  • Steve Pudney, Professor of Economics, Institute for Social and Economic Research, Univeristy of Essex
  • Vania Sena, Professor of Business Economics and Entrepreneurship, Director of the ESRC Business and Local Government Data Research Centre, University of Essex
  • Maurice Sunkin, Professor of Public Law and Socio Legal Studies, University of Essex.

 Andrew Le Sueur is president of the UK Constitutional Law Association and Professor of Constitutional Justice at the University of Essex, UK

Suggested citation: A. Le Sueur, ‘Announcing the launch of UKAJI U.K. Const. L. Blog (13th August 2014) (available at http://ukconstitutionallaw.org).

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Call for Evidence: Review of Communications Data and Interception Powers

The Home Secretary announced to Parliament on 10 July that the Independent Reviewer of Terrorism Legislation had been asked, with all-party support, to lead a review before the General Election, in the light of the diverse and emerging threats we face, of

  • the capabilities and powers required by law enforcement and the security intelligence agencies, and
  • the regulatory framework within which those capabilities and powers should be exercised.

The terms of reference for the review are here, and the obligation to commission the review was given statutory force in the Data Retention and Investigatory Powers Act 2014, which sped through Parliament last week.

Among the issues that will be considered are whether the UK needs new legislation along the lines of the proposed Communications Data Bill, and whether Part 1 of RIPA 2000 needs to be amended or replaced.  The review will also be looking at the statistical and transparency requirements that should apply, and at the effectiveness of current statutory oversight arrangements.  For comparative purposes it is hoped to refer to the position in other countries, in particular Germany and the USA.

The Independent Reviewer is currently assembling the help needed, and establishing working practices.

If you wish to submit evidence with a bearing on any of the issues, please do so by Friday 3 October 2014 to independent.reviewer@brickcourt.co.uk, limiting your submission where possible to a maximum of 5000 words and heading your email “Evidence for Review”.

The default position is that evidence received may be published or shared with others, attributed to its author and quoted from in my report.  If you wish to submit all or part of your evidence on a confidential basis, please so indicate in a cover email.

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