Category Archives: baroness Jay

AUDI ALTERAM PARTEM – Scottish independence: constitutional implications of the referendum

AUDI ALTERAM PARTEM

Audi Alteram Partem may not be the snappiest title for an article but it is an important principle of both decent propriety and of English Law. It is a fundamental principle of the “Rules of Natural Justice”. It has its roots in Anglo-Saxon Law and it means:- “Hear the other side i.e. of the argument”

(Click here for a learned explanation >>> http://legalperspectives.blogspot.co.uk/2010/07/audi-alteram-partem-natural-justice.html ).

From, at least, the Act of Union in 1707 this maxim has also meant something in Scottish Law.

I mention Audi Alteram Partem because that is exactly what hasn’t happened in the making of a politically important report:- “Scottish independence: constitutional implications of the referendum”, by the House of Lords Constitution Committee.

This is a Committee in which there is a considerable over-representation of Brit/Scots and hardly any English and is also under the Chairmanship of Baroness Jay. Her only qualification to be in the upper chamber of our legislative assembly is Labourite nepotism. In a proper democracy the Lords would be called our “Senate” and would be properly democratically elected instead of stuffed with the cronies and the dodgy donors of the Establishment parties.

Below I quote an important extract from the text of the report which has been grandiosely entitled:- “Scottish independence: constitutional implications of the referendum”.

This is a Committee which point blank refused to hear evidence from any source that would contradict their politically motivated and pre-determined conclusions.

Baroness Jay has thus in a sense presided over a show trial of the sort that those other pillars of the Left, Joe Stalin and Mao Tse Tung would have been proud of. The aim in this case though wasn’t the ritual humiliation and then slaughter of opponents, but instead the destruction and dismemberment of England.

The bias of this report goes even beyond the refusal to hear the other side of the argument. It includes the attempt to belittle and dismiss any who advanced the contrary point of view. This has been done in the way that the English Democrats and the Campaign for an English Parliament have been referred to. Also His Honour Judge Ian Burns Campbell QC has been dismissed as a “retired diplomat”.

For those interested in hearing the real argument the issue is not the diversionary argument of whatever that oxymoron “International Law” may say. That is a complete red herring. What matters is the Constitution of the UK.

Once this point has been grasped it is painfully obvious that the concept of the “Rest of the UK” calmly sailing on in undisturbed constitutional waters, having quietly dropped Scotland overboard, is an utter fantasy.

If Scotland goes then it can only legally do so with the repeal of the relevant clauses of the Act of Union 1707. This means that the United Kingdom of Great Britain is dissolved and that any subsequent Union which may be cobbled together will not be the same constitutional entity that is now meant by the “United Kingdom of Great Britain and Northern Ireland”.

(E + S = GB therefore GB – S = E)


This scenario poses a direct challenge to the British Establishment. It will end their games of post imperial posing about “punching above our weight on the world stage” and, as the SNP have stated, means that none of the “Successor” or “New” States would need to automatically take on the vast debts of that most profligate and spendthrift entity, the British State! Cue: Exit Stage Left – panicking bankers and Eurocrats?

Here is the relevant part of the report:-

Principles governing independence

The UK as the continuator state

10. A central question about the constitutional position of the rest of the United Kingdom after a “yes” vote is whether it would continue as the same state. In other words, would the United Kingdom retain the statehood of the UK, with Scotland becoming a new breakaway state? If so, the rest of the UK would technically become the “continuator state” and Scotland the “successor state”. Alternatively, would the remaining part of the United Kingdom and Scotland become two new states?

11. A great deal flows from this question. Were the rest of the UK to be the continuator state, it would retain all of the public institutions of the UK. It would retain the treaty obligations and memberships of international organisations of the existing UK. For example, the rest of the UK would continue as a member of the European Union (with the various opt-outs that the UK now has), the United Nations (including the permanent seat on its Security Council) and NATO. Such memberships would automatically continue; they would not have to be applied for. Were the rest of the UK to be the continuator state it would significantly shape negotiations after a “yes” vote.

12. A comprehensive legal opinion by Professor James Crawford, Whewell Professor of International Law at the University of Cambridge, and Professor Alan Boyle, Professor of Public International Law at the University of Edinburgh, on the status of Scotland and the rest of the UK in international law was annexed to the Scotland analysispaper on Devolution and the implications of Scottish independence. We are not aware of any serious objection to their analysis of the principles of public international law that would apply to Scottish independence.

13. The UK Government’s position follows this legal opinion: that the rest of the UK would become the continuator state and that Scotland would become a new, successor state. The Advocate General for Scotland, Lord Wallace of Tankerness QC, set out four main reasons for this:-

First, the majority of international precedents—from Russia being the continuator state on the break-up of the Soviet Union to Sudan continuing after South Sudan became a new state—point to the rest of the UK being the continuator state. The most directly relevant precedent is that Great Britain and Northern Ireland continued as the UK after the secession of the Irish Free State in 1922.
Secondly, the rest of the UK would retain the greater share of the population (92%) and territory (68%) of the existing UK. These factors are given weight in public international law.
Thirdly, the likelihood is that the majority of other states would recognise the rest of the UK as the continuator state and recognise Scotland as a new state.
Fourthly, where the alternative of two new states being created has applied—for example, when Czechoslovakia split into the Czech Republic and Slovakia—that has usually been by mutual agreement. The UK Government would not agree to the UK becoming a new state, so this alternative could not apply. It is relevant that the referendum is taking place only in Scotland: it is not a UK-wide referendum on whether the UK should split into two new states.

14. The majority of our witnesses agreed with this analysis.[11] Professor Alan Boyle said that it was the “only … credible view”. Professor Michael Keating, Chair in Scottish Politics at the University of Aberdeen, referred to the “broad acceptance that the UK would be the continuing state.” Professor Stephen Tierney, Professor of Constitutional Theory at the University of Edinburgh, agreed, as did commentators David Torrance and Mandy Rhodes. The commentator Alex Massie said that it appeared “to be the common-sense attitude. It will be the view that will be taken by the rest of the world. If you vote to leave a club, the club remains.”

15. In her covering letter to the Scottish Government’s written evidence the Deputy First Minister, Nicola Sturgeon MSP, appeared to question the proposition that the rest of the UK would be the continuator state. She described it as an “assertion made by the UK” and quoted a passage from Professors Crawford and Boyle’s advice in which they refer to the position in international law depending on arrangements made between the two governments and the position of other states. Having said that, the Scottish Government in their written evidence did not argue explicitly against the principle of the UK being the continuator state and we are not aware of them questioning it in other forums. David Torrance said the Scottish Government “have not taken an unequivocal position … They appear to cast doubt on the rest of the United Kingdom being the [continuator] state, but they have not said what they think would happen.” As so much flows from this it is incumbent on those who question whether the UK would be the continuator state to set out their analysis of what the alternative position would be.

16. The overwhelming view in the evidence we received was that after a “yes” vote the rest of the United Kingdom would continue as the same state: it would be the continuator state. Scotland would become a new, successor state.

17. This would be the case because relevant precedents support that position; it would be consistent with the rest of the UK having the majority of the territory and population of the existing UK; and it would reflect the likely opinion of other countries. No realistic alternative case has been made.

18. The fact that the rest of the UK would be the continuator state shapes discussion on the implications of independence; this report proceeds on that basis.

Footnote
___________________________________________________________________
(11. We received written evidence to the contrary from the Campaign for an English Parliament, the English Democrats and Ian Campbell, a former diplomat.).

Click here for the whole report >>> http://www.publications.parliament.uk/pa/ld201314/ldselect/ldconst/188/18802.htm

AUDI ALTERAM PARTEM – Scottish independence: constitutional implications of the referendum

AUDI ALTERAM PARTEM

Audi Alteram Partem may not be the snappiest title for an article but it is an important principle of both decent propriety and of English Law. It is a fundamental principle of the “Rules of Natural Justice”. It has its roots in Anglo-Saxon Law and it means:- “Hear the other side i.e. of the argument”

(Click here for a learned explanation >>> http://legalperspectives.blogspot.co.uk/2010/07/audi-alteram-partem-natural-justice.html ).

From, at least, the Act of Union in 1707 this maxim has also meant something in Scottish Law.

I mention Audi Alteram Partem because that is exactly what hasn’t happened in the making of a politically important report:- “Scottish independence: constitutional implications of the referendum”, by the House of Lords Constitution Committee.

This is a Committee in which there is a considerable over-representation of Brit/Scots and hardly any English and is also under the Chairmanship of Baroness Jay. Her only qualification to be in the upper chamber of our legislative assembly is Labourite nepotism. In a proper democracy the Lords would be called our “Senate” and would be properly democratically elected instead of stuffed with the cronies and the dodgy donors of the Establishment parties.

Below I quote an important extract from the text of the report which has been grandiosely entitled:- “Scottish independence: constitutional implications of the referendum”.

This is a Committee which point blank refused to hear evidence from any source that would contradict their politically motivated and pre-determined conclusions.

Baroness Jay has thus in a sense presided over a show trial of the sort that those other pillars of the Left, Joe Stalin and Mao Tse Tung would have been proud of. The aim in this case though wasn’t the ritual humiliation and then slaughter of opponents, but instead the destruction and dismemberment of England.

The bias of this report goes even beyond the refusal to hear the other side of the argument. It includes the attempt to belittle and dismiss any who advanced the contrary point of view. This has been done in the way that the English Democrats and the Campaign for an English Parliament have been referred to. Also His Honour Judge Ian Burns Campbell QC has been dismissed as a “retired diplomat”.

For those interested in hearing the real argument the issue is not the diversionary argument of whatever that oxymoron “International Law” may say. That is a complete red herring. What matters is the Constitution of the UK.

Once this point has been grasped it is painfully obvious that the concept of the “Rest of the UK” calmly sailing on in undisturbed constitutional waters, having quietly dropped Scotland overboard, is an utter fantasy.

If Scotland goes then it can only legally do so with the repeal of the relevant clauses of the Act of Union 1707. This means that the United Kingdom of Great Britain is dissolved and that any subsequent Union which may be cobbled together will not be the same constitutional entity that is now meant by the “United Kingdom of Great Britain and Northern Ireland”.

(E + S = GB therefore GB – S = E)


This scenario poses a direct challenge to the British Establishment. It will end their games of post imperial posing about “punching above our weight on the world stage” and, as the SNP have stated, means that none of the “Successor” or “New” States would need to automatically take on the vast debts of that most profligate and spendthrift entity, the British State! Cue: Exit Stage Left – panicking bankers and Eurocrats?

Here is the relevant part of the report:-

Principles governing independence

The UK as the continuator state

10. A central question about the constitutional position of the rest of the United Kingdom after a “yes” vote is whether it would continue as the same state. In other words, would the United Kingdom retain the statehood of the UK, with Scotland becoming a new breakaway state? If so, the rest of the UK would technically become the “continuator state” and Scotland the “successor state”. Alternatively, would the remaining part of the United Kingdom and Scotland become two new states?

11. A great deal flows from this question. Were the rest of the UK to be the continuator state, it would retain all of the public institutions of the UK. It would retain the treaty obligations and memberships of international organisations of the existing UK. For example, the rest of the UK would continue as a member of the European Union (with the various opt-outs that the UK now has), the United Nations (including the permanent seat on its Security Council) and NATO. Such memberships would automatically continue; they would not have to be applied for. Were the rest of the UK to be the continuator state it would significantly shape negotiations after a “yes” vote.

12. A comprehensive legal opinion by Professor James Crawford, Whewell Professor of International Law at the University of Cambridge, and Professor Alan Boyle, Professor of Public International Law at the University of Edinburgh, on the status of Scotland and the rest of the UK in international law was annexed to the Scotland analysispaper on Devolution and the implications of Scottish independence. We are not aware of any serious objection to their analysis of the principles of public international law that would apply to Scottish independence.

13. The UK Government’s position follows this legal opinion: that the rest of the UK would become the continuator state and that Scotland would become a new, successor state. The Advocate General for Scotland, Lord Wallace of Tankerness QC, set out four main reasons for this:-

First, the majority of international precedents—from Russia being the continuator state on the break-up of the Soviet Union to Sudan continuing after South Sudan became a new state—point to the rest of the UK being the continuator state. The most directly relevant precedent is that Great Britain and Northern Ireland continued as the UK after the secession of the Irish Free State in 1922.
Secondly, the rest of the UK would retain the greater share of the population (92%) and territory (68%) of the existing UK. These factors are given weight in public international law.
Thirdly, the likelihood is that the majority of other states would recognise the rest of the UK as the continuator state and recognise Scotland as a new state.
Fourthly, where the alternative of two new states being created has applied—for example, when Czechoslovakia split into the Czech Republic and Slovakia—that has usually been by mutual agreement. The UK Government would not agree to the UK becoming a new state, so this alternative could not apply. It is relevant that the referendum is taking place only in Scotland: it is not a UK-wide referendum on whether the UK should split into two new states.

14. The majority of our witnesses agreed with this analysis.[11] Professor Alan Boyle said that it was the “only … credible view”. Professor Michael Keating, Chair in Scottish Politics at the University of Aberdeen, referred to the “broad acceptance that the UK would be the continuing state.” Professor Stephen Tierney, Professor of Constitutional Theory at the University of Edinburgh, agreed, as did commentators David Torrance and Mandy Rhodes. The commentator Alex Massie said that it appeared “to be the common-sense attitude. It will be the view that will be taken by the rest of the world. If you vote to leave a club, the club remains.”

15. In her covering letter to the Scottish Government’s written evidence the Deputy First Minister, Nicola Sturgeon MSP, appeared to question the proposition that the rest of the UK would be the continuator state. She described it as an “assertion made by the UK” and quoted a passage from Professors Crawford and Boyle’s advice in which they refer to the position in international law depending on arrangements made between the two governments and the position of other states. Having said that, the Scottish Government in their written evidence did not argue explicitly against the principle of the UK being the continuator state and we are not aware of them questioning it in other forums. David Torrance said the Scottish Government “have not taken an unequivocal position … They appear to cast doubt on the rest of the United Kingdom being the [continuator] state, but they have not said what they think would happen.” As so much flows from this it is incumbent on those who question whether the UK would be the continuator state to set out their analysis of what the alternative position would be.

16. The overwhelming view in the evidence we received was that after a “yes” vote the rest of the United Kingdom would continue as the same state: it would be the continuator state. Scotland would become a new, successor state.

17. This would be the case because relevant precedents support that position; it would be consistent with the rest of the UK having the majority of the territory and population of the existing UK; and it would reflect the likely opinion of other countries. No realistic alternative case has been made.

18. The fact that the rest of the UK would be the continuator state shapes discussion on the implications of independence; this report proceeds on that basis.

Footnote
___________________________________________________________________
(11. We received written evidence to the contrary from the Campaign for an English Parliament, the English Democrats and Ian Campbell, a former diplomat.).

Click here for the whole report >>> http://www.publications.parliament.uk/pa/ld201314/ldselect/ldconst/188/18802.htm

Complaint against the Members of the House of Lords Constitution Committee

After I had submitted evidence to the House of Lords “Constitution Committee” chaired by Baroness Jay, I found that none of the English groups that had given evidence are to be called to give oral evidence.

It is no surprise that a Committee chaired by the daughter of Jim Callaghan would be biased and anti-English but that is no reason not to protest!

So I complained to the House of Lords’ Commissioner for Standards. Here is the correspondence.

What do you think?

My initial letter to House of Lords’ Commissioner for Standards dated 20th March 2014

Dear Commissioner for Standards

Re: Complaint against the Clerk and Members of the House of Lords Constitution Committee

The English Democrats and two other English groups (the English Lobby and the Campaign for an English Parliament) put in submissions to the “Scottish Independence: Constitutional: Implication for the rest of the UK” Inquiry by the House of Lords “Constitution Committee”.

None of the English submissions were called in for oral submissions, which I find suspicious as to the Committee’s agenda and whether or not it has behaved in an open, transparent and proper manner, both under the Code of Conduct and also under the Equalities Act 2010.

The members of the Committee are as follows:-

Baroness Jay of Paddington (Chair) – Labour

Lord Crickhowell – Conservative

Lord Cullen of Whitekirk – Crossbench

Baroness Falkner of Margravine – Liberal Democrat

Lord Goldsmith – Labour

Lord Hart of Chilton – Labour

Lord Irvine of Lairg – Labour

Lord Lang of Monkton – Conservative

Lord Lester of Herne Hill – Liberal Democrat

Lord Lexden – Conservative

Lord Powell of Bayswater – Crossbench

Baroness Wheatcroft – Conservative

I note from their entries in the House of Lord’s website, that none of them appear to have either made a registration or a declaration of interest relevant to this inquiry. It is obvious that, in such an inquiry, their national identity is a relevant interest in the context of the matter under discussion, to use the words of paragraph 82 of the Code of Conduct.

I submit that it is also in a category of “Interest” which although possibly non-financial (depending where their property is) but, in any event, is an “Interest” that ought to be Registered and/or Declared.

I consider that the members (apropos paragraph 7) should have conducted this Inquiry based on considerations of public interest and the public interest does of course include compliance with the Equality Act.

Regarding section 9) c) the conduct of the Committee does not meet the standard of objectivity in carrying out public business, nor do the responses that I have received from the Committee’s Clerk (copies of this correspondence I enclose), comply with the section 9) e) requirement of openness about the decisions that they took – in this case to exclude all English representation from the discussion.

Considering that the English represent some 90% of the population of the UK and over 60% (over 32 million) of them have declared themselves to be of ‘English Only’ national identity in the 2011 Census results, it is obvious that no inquiry into the constitutional implications for the rest of the UK could be properly conducted without English opinion being fully taken into account.

I submit that failure to register and/or declare their national identity is a breach of 10) a) and that as a reasonable member of the public I consider that under paragraph 11 national identity interests in this question would be thought by any reasonable member of the public to influence the way in which the members of this Committee have discharged their parliamentary duties in the case of the Committee, in respect of the particular matter under discussion.

As the Clerk has declined to answer my questions, I am unable to focus this complaint on the individual members of the Committee who have acted to the detriment of a proper discussion on this issue. I would therefore ask you to enquire into the answers to my Equality Act questions and also to determine whether there has been a breach or breaches of the House of Lords’ Code of Conduct in respect of each and every Committee member.

Yours faithfully

R C W Tilbrook

Enc.

Letter dated 26th March 2014 from the House of Lords Commissioner of Standards, Paul Kernaghan CBE QPM

Dear Mr Tilbrook

I am writing in response to your letter of complaint dated 20th March 2014 (your ref RT/37).

Your letter is headed “Complaint against the Clerk and Members of the House of Lords Constitution Committee”. My remit is limited to investigating complaints against members of the House of Lords, not the staff of the House. This reply therefore addresses your letter only as it applies to the members of the Constitution Committee.

I have carefully considered the points you make and my preliminary assessment is that your complaint does not meet the criteria set out in the House of Lords Code of Conduct and Guide to the Code of Conduct.

The first element of your complaint appears to be that the English Democrats, the English Lobby and the Campaign for an English Parliament were not invited to give oral evidence to the Constitution Committee. The Code of Conduct relates to members of the House of Lords individually, and not to a select committee’s collective decisions. There is no provision in the Code about committees inviting oral or written evidence; this element of your complaint therefore falls outside my remit and does not relate to an alleged breach of the Code.

The second element of your complaint seems to be that the members of the Constitution Committee have not registered or declared their national identity as an interest relevant to the Constitution Committee’s inquiry into “Scottish independence: constitutional implications for the rest of the UK”. Members of the House of Lords are required to be British, Irish or Commonwealth citizens. There is no requirement in the Code for members to register on the Register of Lord’s Interests their national identity. Nor is there a requirement in wider British law for individuals to declare a national identity. I considering whether members of the committee should declare their national identity I must assess whether that would be considered by a reasonable member of the public as relevant to the subject-matter of the committee’s inquiry. In this case the inquiry is into certain constitutional implications for the rest of the UK of any “yes” vote in the Scottish independence referendum. The committee’s call for evidence states that the inquiry is covering the conduct of potential negotiations; the position of assets and liabilities, and shared services of the UK; and implications of the UK Parliament. The call for evidence states that the committee’s inquiry is focussed. At no point does it indicate that the committee is exploring questions of national identity or citizenship matters. I therefore conclude that this element of the complaint does not demonstrate a prima facie breach of the Code.

The third element of your complaint appears to be that members of the committee have not complied with the Equality Act 2010. My remit is to investigate alleged breaches of the Code of Conduct. That element of your complaint therefore falls outside my remit.

In the light of the above I do not intend to investigate your complaint. However, if you can provide further evidence of a specific breach of the House of Lords Code of Conduct, I am prepared to examine that material.

Yours sincerely

Paul Kernaghan CBE QPM

Commissioner for Standards

My letter to Mr Paul Kernaghan CBE QPN, Commissioner of Standards dated the 31st March 2014

Dear Mr Kernaghan

Re: Complaint against Members of Constitutional Committee

Thank you for your letter of the 26th March and for responding so promptly.

As you have dealt with our complaint in what you have labelled as three “elements” and indicated that you think that the first and third elements are outside your jurisdiction, I will concentrate on the second element.

I must admit I am somewhat surprised with your response to the second element, since it seems to me absolutely obvious that the national identity of individuals is probably the most relevant interest that they could have in an Inquiry of the nature that the Constitutional Committee is inquiring into.

There may not be any specific requirement in the Code for Members to register their national identity. My point is however that in inquiring into Scottish Independence: Constitutional Implications for the Rest of the UK, it is obvious that any reasonable member of the public would regard the individual Committee Member’s national identity as being of utmost relevance to the subject matter of the Committee’s inquiry.

This is especially so when it is realised that there is no constitutional validity to the idea of the “rest of the UK” being an automatically continuing constitutional entity if Scotland become Independent, as was made plain in both my submission and in that of the only other submission made by a practising lawyer dealing with this concept, Judge Ian Burns Campbell. I enclose a copy of my submission.

In the event that Members of the Committee seek to use their position to give substance to a constitutionally bogus idea such as “rest of the UK”, it would be of great interest to know their national identity.

It would also be of some interest to know whether the Committee adequately reflects the proportion of national identity across the current UK. From what I can see of the background of the Committee Members it would appear there are relatively few who would have any interest in or desire to speak for England – because of their national identity!

At a time when the 2011 Census results show that over 60% of the population of England, that is over 32 million people, regard themselves as having English Only national identity it would certainly be of considerable relevance to know whether there are in fact any Members of the House of Lords Constitutional Committee that have English Only national identity. At the very least, in my respectful submission, what Members should have done and should now be required to do is to make a Declaration of Interest so far as this inquiry is concerned, and, indeed, any other Inquiries that relate to devolution or to the independence of any of the constituent nations of the UK State.

In light of the above I do hope that you will take the necessary action to require the Members of the House of Lords Constitution Committee to make a Declaration of Interest of their respective national identities.

Whilst writing I would remind you that National Identity under the Equality Act is a different concept to racial group or ethnicity. It is the concept of which national group an individual self-identifies with. It is that very element of self-identity which means that any reasonable member of the public would want to know the National Identity of each Committee Member in order to understand what the Committee Member’s views are likely to be on any relevant national question as the UK moves towards this dissolution.

Yours sincerely

R C W Tilbrook

Enc.

Letter dated 9th April 2014 from the House of Lords Commissioner of Standards, Paul Kernaghan CBE QPM

Dear Mr Tilbrook

Thank you for your letter dated 31 March 2014.

I have carefully considered the points you raise but have decided to screen out your complaint.

The Guide to the Code of Conduct provides guidance on non-financial interests in some detail. Paragraph 90 lists non-financial interests that are not normally registered but which it may be necessary to declare in certain circumstances. Amongst these are “membership of Churches or other religious bodies or organisations”. There is no mention of “national identity”. As I have previously advised you, members of the House of Lords are required to be British, Irish or Commonwealth citizens. There is no requirement for committees of the House to consider “national identity” when calling witnesses. As mentioned in my previous letter, “national identity” is not covered in the call for evidence for the Constitution Committee’s inquiry. Thus I do not consider that any member of that committee has breached the Code of Conduct by not declaring their national identity.

Yours sincerely

Paul Kernaghan CBE QPM

Commissioner for Standards

My letter dated 11th April 2014 to Mr Paul Kernaghan CBE QPN

Dear Mr Kernaghan

Re: Complaint against Members of Constitutional Committee

Thank you for your letter of the 9th April. With respect you have demonstrated the inadequacy both of your role and of the House of Lords Code of Conduct. For it not to be an admissible complaint that members of the committee have failed to declare their national identity when conducting an inquiry into an issue where national identity plays a key role is simply the stuff of a classic Whitehall farce!

You have nicely demonstrated the rottenness of the current system of crony appointments by the British Political Establishment to our Upper Legislative Chamber.

The sooner the British Unionist State is dissolved and England has a proper and fully democratically elected legislature the better!

Yours sincerely

Robin Tilbrook

UK to be Python-esque “dead parrot” after Scottish Independence?


The British Establishment’s increasingly desperate support for the idea of the “rest of the UK” (rUK) reminds me of (for the middle aged amongst us) the “dead parrot” sketch from Monty Python. I am reminded of the shop-keeper’s self-interested and ludicrous attempts to persuade his customer that the parrot is healthier than it seems! Here is the ‘Python clip >>>

http://www.youtube.com/watch?v=4vuW6tQ0218

The House of Lords Select Committee on the Constitution, chaired by Jim Callaghan’s daughter, Baroness Jay of Paddington. It has called for evidence for an Inquiry into the constitutional implications for the remainder of the United Kingdom in the event of a Yes vote on the 18th September.

The assumptions for the questions are that there will be a constitutional entity called the rUK. My view could be expressed as a mathematical formula:-

E + S = GB   therefore   GB – S = E 

(Where E = Kingdom of England, S = Kingdom of Scotland, GB = United Kingdom of Great Britain).

Below are my submissions to the Committee. What do you think?

Scottish Independence: Constitutional implications for the rest of the UK

I am the Chairman of the English Democrats, which is the only English party that is interested in such constitutional implications. We are of course interested in the constitutional implications for England. As English nationalists we call for English Independence.

The first point to make crystal clear in the event that Scotland goes independent, and I make this point, not only as the Chairman of the English Democrats, but also as a lawyer and practicing solicitor, that there is no automatically persisting entity known as “the rest of the UK”. This point rests on basic constitutional legal principles and derives from the nature and wording of the Act of Union in 1707. The relevant articles of which are stated as follows:-

“ARTICLE 1

THAT THE TWO Kingdoms of England and Scotland shall upon the first Day of May which shall be in the Year one thousand seven hundred and seven, and for ever after, be united into one Kingdom by the name of Great Britain;

ARTICLE III

That the United Kingdom of Great Britain be represented by one and the same Parliament, to be stiled, The Parliament of Great Britain.”

It therefore follows, as a matter of trite law, that in the event of Scotland becoming independent this must involve the repeal of the Act of Union 1707. This automatically means that the then new constitutional entity that was created by the Act of Union, namely the “United Kingdom of Great Britain”, will be dissolved. This leads to the automatic dissolution of the Union with Northern Ireland.

The Union with Northern Ireland is the residue deriving from early 20th Century Southern Irish independence of a Union which was created by the Act of Union of 1801 between the Kingdom of Ireland and the United Kingdom of Great Britain.

Obviously therefore the Union so far as Northern Ireland is concerned, is with the United Kingdom of Great “Britain”. With the dissolution of the “United Kingdom of Great Britain” there will be no automatically persisting Union with any then existing constitutional entity.

The position of Wales is different because Wales was fully incorporated into the “Kingdom of England” by the 1536 union legislation. That is why of course the Act of Union 1707 does not mention Wales because Wales is then encompassed within the term the “Kingdom of England”.

It follows that without new constitutional legislation the independence of Scotland leads to the dissolution of the “United Kingdom of Great Britain” and of Great Britain’s union with Northern Ireland. It will thus give rise to the re-emergent “Kingdom of Scotland”, the re-emergent “Kingdom of England” and the “Province of Northern Ireland” with no current Union between England or Scotland (or the Republic of Ireland).

It is worth considering the above points carefully because the consequence of Scotland becoming independent isn’t just that Scotland technically would be classified as a new state, under the emerging body of what, for want of a better term, is called “international law”, but also that the Kingdom of England and the Province of Northern Ireland will also all be now States.

The Committee has asked for answers to specific questions.

1. Negotiations – Is the timetable of independence by March 2016 realistic?

Yes, I would have thought it was. It will impose an obligation on negotiators to get on with it promptly.

2. Who will negotiate for the remainder of the UK? To whom would they be accountable?

You will appreciate from my introductory points above, about the nature of the constitutional implications of Scottish independence, that there would not automatically be a single entity which is the remainder of the UK.

It is certainly not appropriate for anyone to purport to negotiate on behalf of England if not expressly and avowedly and legitimately mandated to do so. This will particularly apply to those British politicians who have expressly stated either their hostility to the English nation and/or their Scottish origins, such as David Cameron or William Hague, let alone anyone who is actually of Scottish origin, such as Gordon Brown or Alastair Darling.

The English negotiators should be accountable to the English Nation. It is essential that an English parliament and government be reconstructed quickly in the event of Scotland voting for independence so that there are proper lines of democratic accountability and legitimacy within England.

3. What impact would the timing of the UK general election in May 2015 have on negotiation?

It will clearly have a destabilising effect on the negotiations as it may well result in the replacement of the original team with a different team of negotiators and with a different government involved in the negotiations.

4. What happens if the two negotiating teams cannot reach agreement on an issue?

The answer to this question will, of course will depend on the issue. For instance if the issue was where the boundary between English North Sea oil and Scottish North Sea oil lies, then that could be adjudicated upon by the International Court at the Hague. If it was something that was within the giving of one of the parties but requested by the other, such as a role in the formulation of policy at the Bank of England that will not be capable of adjudication. Clearly the English team could simply refuse and the other team would not be able to insist upon it. If in fact on that item there is such a refusal then I suspect the Scottish negotiators will take the advice of the highly respected international law authority, Professor David Scheffer of the Centre for International Human Rights in Chicago and decline to accept any share of the UK’s debts.

5. Assets and liabilities and shared services. What legal principles should apply to negotiations on the apportion of assets and liabilities that are currently UK-wide?

Since all the participants in negotiations will be acting on behalf of potentially “new States” the negotiations are inevitably going to be without hard and fast rules and will be based on give and take. In principle all parties could walk away from the liabilities of the “UK”. So far as assets are concerned, that will either rest on satisfactory negotiations between the parties or will be based on who has physical possession.

6. What are the constitutional implications of maintaining services shared between Scotland and the rest of the UK (for example, the Bank of England and those services listed on page 364 of the Scottish Governments’ White Paper)?

Answer 5 above answers this question.

7. Parliament. What would the position of MPs for Scottish constituencies be from May 2015 to March 2016?

Until the dissolution of the “United Kingdom of Great Britain” and Northern Ireland they would of course be members of the Union Parliament. Upon dissolution the Union Parliament itself will have to be reconfigured in accordance with the new constitutional situation. The same will apply to peers of the Union Parliament.

8. What impact would independence have on the House of Commons if MPs for Scottish constituencies left it in March 2016?

Clearly the balance of the parties would be shifted, but the point remains that the House of Commons constitutional position will be altered as Parliament will no longer be the Parliament of the “United Kingdom of Great Britain” but rather only of the Kingdom of England which will also exclude Northern Irish MPs.

9. What impact would independence have on the House of Lords? 

The House of Lords is of course currently one of the two Chambers of the Parliament of the “United Kingdom of Great Britain” and Northern Ireland. With the dissolution of the United Kingdom of Great Britain the membership of the House of Lords will be dramatically affected as it will only be appropriate for English peers to sit in the English Upper Chamber. The English Democrats position is that all members of the English Upper Chamber should be democratically elected by the people of England.

10. What legislation (or other measures) would the Westminster have to pass in order for Scotland to become independent?

The Act of Union of 1707 would have to be repealed.