Report and commentary on the Campaign for an English Parliament  English Speaking Union debate  24 November  2010

Proposition: ‘This house believes that an English Parliament  is the last hope for a United Kingdom’

Chair: Louisa Preston (BBC Presenter)

For: Scilla Cullen (CEP), David Wildgoose ( (English Democrats)

Against:  Prof.  Hugo de Burgh (Ex-journalist and now a Director, China Media Studies at Westminster U, Eddie Bone (CEP)

NB Eddie Bone was playing devil’s advocate (see below) as he is a supporter of an English Parliament  

The proposition for  debate was lightly worn as  both the platform speakers and  comments and questions from the floor tended to circle around the questions of a federal UK and the practicality of an English parliament.  Nonetheless, it was an interesting evening with a healthy turnout.

Scilla Cullen

Mrs Cullen’s main thrust was directed at what she claimed were  breaches of the 1707 Act of Union. She illustrated this by pointing to the  fact that we now have at  two Parliaments – at Westminster and Edinburgh – in the UK ( four if the Welsh and Northern Irish Assemblies are treated as  parliaments)  whereas the Act says there will be but one Parliament for the United Kingdom of Great Britain and different tax and regulatory regimes for trade between the four home countries, something which she claimed was forbidden by the Act.

There are two objections to Mrs Cullen’s  argument.  The Act of Union is simply an ordinary Act of Parliament. It has no superior status as constitutional law. This means that it can be amended or repealed overtly by an Act of Parliament or by the  application of  the English legal doctrine of  implied repeal, viz:

“As a general rule, if an Act is partially or wholly inconsistent with a previous Act, then the previous Act is repealed to the extent of the inconsistency. It does not matter that the later Act contains no express words to affect the repeal or alteration. This is known as the doctrine of implied repeal. (page 3 –  http://cseng.aw.com/catalog/uploads/Carroll_C05.pdf – there is a good presentation  of the history and development of the doctrine at this url )”

There have been attempts since Britain’s entry into the EU (EEC at the time of entry) – most notably in the  ‘Metric Martyrs’ case –  to establish that some statutes have a de facto constitutional status and should not be subject to implied repeal – but no higher court has sustained the claim. (This failure to create a superior constitutional law status  underpins  David Cameron’s recent claim that Parliament is supreme and consequently Britain could leave the EU simply by an Act of Parliament. Cameron  is incorrect because of the Lisbon Treaty – see below under Wildgoose).  It is worth adding, that even if some ordinary Acts of Parliament were retrospectively given a superior constitutional law status and were not subject to implied repeal, the constitutional position would remain unclear because  the Acts with constitutional law status would  contradict one another. 

The existence of implied repeal means  that any complaint that the  original Act of Union has been breached by later law has no legal force.

As for the claim that the original  Act required equality of  tax and trade regulations throughout Great Britain, this is simply wrong because there are exceptions such those in clause  VI  (the full text of the Act can be found at  http://englandcalling.wordpress.com/the-act-of-union-1707/ ). Most notable is clause IX, viz:

“THAT whenever the sum of One million nine hundred ninety seven thousand seven hundred and sixty three pounds eight shillings and four pence half penny, shall be enacted by the Parliament of Great Britain to be raised in that part of the United Kingdom now called England, on Land and other Things usually charged in Acts of Parliament there, for granting an Aid to the Crown by a Land Tax; that part of the United Kingdom now called Scotland, shall be charged by the same Act, with a further Sum of forty-eight thousand Pounds, free of all Charges, as the Quota of Scotland, to such Tax, and to proportionably for any greater or lesser Sum raised in England by any Tax on Land, and other Things usually charged together with the Land; and that such Quota for Scotland, in the Cases aforesaid, be raised and collected in the same Manner as the Cess now is in Scotland, but subject to such Regulations in the manner of collecting, as shall be made by the Parliament of Great Britain.”

At the time of Union England  had a population in the region of 5 million and Scotland a population of approximately 1 million.  If Scotland had been taxed at the same rate as England under that clause they would have been paying not £48,000 but nearer to £400,000. Hence, from the very beginning Scotland was treated much more favourably than England when it came to taxation.

Mrs Cullen was on firmer ground when she pressed the fact that we had a de facto federal system which could only be equitable by the creation of an English Parliament .  She illustrated the point by mentioning that we currently have the absurdity  of  the  SNP’s Richard Lochhead,  a domestic Scottish politician without any electoral base  in UK politics,  negotiating on behalf of the UK with the EU over fishing policy. 

David Wildgoose

Mr Wildgoose wanted a federal UK but it would not have been one which I think most English men and women would welcome. His idea of a federal government was one in which 55 seats at Westminster were taken from the Celts and given to the English, with “English votes for English laws”  and the federal issues decided by the entire Parliament. The problem was he was not envisaging a situation  in which the English subsidy to the Celts ended, for example, he assumed   welfare benefits would continue to be  funded from Westminster .  This sat uncomfortably  with his claim that he wanted “The English to be equal citizens with equal rights”.

During the Q and A session afterwards I detailed what a stable and long lasting  federal UK should involve –  four national parliaments with home rule including fiscal responsibility and one assembly to deal with federal matters such as foreign affairs, defence and the servicing of the national debt.  Oddly, Mr Wildgoose claimed this was not a federation but a confederation. I pointed out, sadly  without success, that  a confederation is a loose league of states without any overarching government, for example, the confederation which arose immediately after the end of the American  War of Independence , while a federation has an overarching government such as that which was formed when the United States was established.   Clearly what I was proposing was a  federal system while Mr Wildgoose was suggesting no more than  a procedurally  amended House of Commons.

Mr Wildgoose also recited the oft made claim that because Parliament is supreme Britain can leave the EU simply by passing an Act of Parliament repealing all the Treaties which enshrine our EU membership in law. This is no longer true. The Lisbon Treaty  contains for the first time a mechanism for any EU state wishing to withdraw from the Union, viz:

“Article 50 of the Treaty runs:

“1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

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, in agreement with the Member State concerned, unanimously decides to extend this period.

4. For the purposes of paragraphs 2 and 3, the member of the European Council or of the Council representing the withdrawing Member State shall not participate in the discussions of the European Council or Council or in decisions concerning it. A qualified majority shall be defined in accordance with Article 238(3)(b) of the Treaty on the Functioning of the European Union.

5. If a State which has withdrawn from the Union asks to rejoin, its request shall be subject to the procedure referred to in Article 49.”

Apart from requiring a qualified majority of the other EU states (QMV means in practice the support of most of the large EU nations), the state which wishes to withdraw would be excluded from any discussions on the conditions for withdrawal. Then there is the delay before withdrawal can be effected. It is probable that the minimum period of waiting before secession would be two years, because it would be extraordinary if the EU did not try to make withdrawal as difficult as possible, while the provision in paragraph 2 that departure must be by negotiation “setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union” means that it will necessarily be a protracted process.

During the time before Britain left she would be bound by EU laws and the EU could adopt directives which could do Britain a good deal of damage, for example, directives which severely interfered with the City. These would not even have to be directives deliberately designed to harm Britain, but simply decisions advantageous to the remaining members which would  take no account of any damage that might be done to Britain. Britain would take no part in discussions or votes on EU legislation introduced during the period between asking to withdraw and actually withdrawing. There would almost certainly be significant conditions for withdrawal which impinged upon British sovereignty including agreement to ‘voluntarily’ adopt much EU legislation, both existing and future. With the Treaty unsigned Britain could have simply stated that it was withdrawing. Such a declaration would raise the question of whether Article 56(1) of the Vienna Convention on the Law on Treaties, to which our political elite have also promiscuously bound Britain, would sanction withdrawal. The Article runs:

“1. A treaty which contains no provision regarding its termination and which does not provide for denunciation or withdrawal is not subject to denunciation or withdrawal unless:

a) it is established that the parties intended to admit the possibility of denunciation or withdrawal; or

b) a right of denunciation or withdrawal may be implied by the nature of the treaty.”

Whether the various treaties which encumber the EU before the Lisbon Treaty is in force could be said to imply a right of withdrawal is a matter of legal debate, although the fact that the Lisbon Treaty itself makes provision for withdrawal is a tacit admission that withdrawal was always implied. But legal or not, a situation where the right of withdrawal was claimed where no treaty sanctioned, forbade or laid down conditions for withdrawal would be a vastly more fluid and, consequently, Britain would be in a much stronger bargaining situation than that which would exist after the Lisbon Treaty becomes law. After implementation of the Treaty, Article 54 of the Vienna Convention on the Law on Treaties would apply to the EU. That Article runs:

“The termination of a treaty or the withdrawal of a party may

take place:

(a) in conformity with the provisions of the treaty; or

(b) at any time by consent of all the parties after consultation with the other contracting States.”

This is in conformity with the withdrawal Article in the Lisbon Treaty and the EU’s legal position would be greatly strengthened by the Treaty‘s implementation. That is one of the reasons why the EU is so desperate to get the Treaty ratified before the next British general election.

But legality in international matters is not the same as legality within a nation state. This is both because there is no democratic legitimacy for international law and for the entirely practical reason that there is no means of enforcing such law, short of blockade or war. Hence, international law is all too often observed in its breach by powerful nations and enforced by the powerful on the weak. Its unreality is shown in Article 42 of the Vienna Convention on the Law on Treaties:

“Validity and continuance in force of treaties

1. The validity of a treaty or of the consent of a State or an international organization to be bound by a treaty may be impeached only through the application of the present Convention.

2. The termination of a treaty, its denunciation or the withdrawal of a party, may take place only as a result of the application of the provisions of the treaty or of the present Convention. The same rule applies to suspension of the operation of a treaty.”

This means that for Britain to legally withdraw from the Vienna Convention all Britain’s co-signatories would have to agree to the withdrawal, a  truly fantastic hope.” (Extract from my recent Quarterly Review article Life after Lisbon: freedom or servitude?)

 Hugo de Burgh

Prof de Burgh served up a very rum political dish. On the one hand he was wont to make comments such as the EU is  “Germany’s Fourth Reich” and  a claim that the best governments in the world were all to be found in the Anglosphere as well as constantly extolling the culture and traditions of England. He was also roundly contemptuous of modern politicians,  whom he sees as largely corrupt and self serving, and the centralising tendencies of recent British governments. On the other hand  he was adamant that that there should be no English Parliament. 

There are two contradictions here. First, if  English culture and traditions are so valuable,   it follows that they are worth preserving and like everything else worth preserving this is best done by those with the most direct interest, in this instance the England.  Second,  if Prof de Burgh wants less centralisation, what could be a better place to start than by removing English spending from the bonds of UK policy? It was noticeable that while advocating a devolution of powers generally to the local levels, the Professor did not feel it necessary to suggest that the Celtic Fringe assemblies be abolished.  Astute readers will see that Prof de Burgh’s ideal UK is not a million miles from that of the Blair government with England balkanised and the Celts left politically intact.

How did Prof de Burgh justify his opposition to an English parliament? Apart from his localism argument,  he conjured up a vision of a new world dominated by China with the Anglosphere  replaced as top political world dog by the Asiansphere  and argued from this that it made no sense for England to assert her nationhood because England would be too small and insignificant to have a significant voice.  Why this would be a significantly smaller or significant voice than that of the UK – England having five sixths of UK population – he did not attempt to explain.

The Professor eventually  let the cat out of the bag by saying that England (and the rest of the Anglosphere) should exercise its influence by simply continuing as before  which would set an example to nations without a tradition of the type of values he most admired in the Anglosphere such as representative democracy (note: England  invented representative government not democracy)  and equality before the law.  This is the modern liberal internationalist version of the late imperial ideal of bringing  civilisation to “lesser breeds without the law”.

Prof de Burgh told a fascinating story about a recent encounter he had with a rising member of the Chinese elite who was already an important administrator.  Most Chinese the professor meets love to show off their English. Not this one. In fact, he did not speak at all and was proud of the fact.  The Chinese official explained  that he had made a conscious decision not to learn English because he wanted to remain untouched by foreign culture as this would allow him to fully understand and appreciate the people he would be effectively governing.  That is precisely the mentality which Lord Macartney encountered on the first official British embassy to China in 1794 (His journal is available from the Folio Society in their publication An Embassy to China. ) The liberal idea that China will become a model of Liberal democracy rigid with political correctness is so far removed from the Chinese mentality as to be comical were it not for the threat China potentially pose to the West. (Those who wish to understand the immense ambition of the Chinese should read Parag Khanna’s “The second world”.)

Prof de Burgh disavowed this mentality but clearly admired it. In fact, it is a classic expression of  the natural human desire to guard the security of the tribe.  I applaud that, but seek the same privilege for the English and any other nation.

Eddie Bone

Mr Bone’s contribution  I found unreservedly  fascinating. He has amassed a positive treasury of quotes of Anglophobic politicians from all the major parties and used these to put the anti-English Parliament government case.  There was Jack Straw claiming the English were dangerous because they were violent, David Cameron recoiling with horror at the idea of being Prime Minister of  merely  England , George Robertson rubbing his hands at the idea of regional governments in England, John Prescott bizarrely  claiming he is a “proud Welshman”  and William Hague insisting he is a Briton first and foremost.

Mr Bone has promised to send me a copy of his quotes which  I shall post on the England calling blog (he has agreed to this). 

Questions and comments from the floor

There was a good array of questions including important issues which had gone largely or wholly unmentioned by the speakers such as the complication of the EU and the dire economic situation of the Celtic Fringe. 

The  mood of the meeting was overwhelmingly one of anger at the way England was being treated.

My general observations

Those who want an English Parliament must  ensure they:

1. understand the legal position before making claims. It is not enough to think that something is so or to rely on a quote. It is imperative to go and look at the full Act or Treaty to properly understand the situation and quite probably to read an expert commentary on the Act or Treaty.

2. realise the importance of economics to this debate because the Celtic Fringe countries  are all economic basket cases, for example, the public service proportion of their GDP is approximately 70% Northern Ireland, 65% Wales and 58% Scotland. They survive at their present level of expenditure simply because of the English subsidy which is probably in the region of £25 billion a year once the higher per capita Treasury funding  to the Celtic Fringe (£15 billion), the lower tax take in the Celtic Fringe than in England and the higher per capita benefits bill (which is paid by Westminster)  in the  Celtic Fringe than England . None of the speakers raised the issue and I was the only one to do so in the Q and A.  

3. understand that unless each home nation has full autonomy for domestic issues and has to raise all the tax they use to fund domestic and their share of federal funding, the odds are that England would still end up subsidizing the Celts.