Brexit, Parliamentary democracy and the Acts of Union 1706

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proofCommentary by Russell Bruce

It is going to be a hard, hard Brexit and I’d be working like a dog

It is going to be a hard, hard Brexit and I’d never sleep like a log

So I’m coming home to EU. I find the things that EU do

Will make me feel alright (with apologies to Lennon / McCartney)

Theresa May was very clear in her address to the Tory Party conference: Any possibility of a future positive trading relationship with 27 other European countries was comprehensively flushed down the pan. 

Having spent the last couple of weeks slapping down her Brexit ministers for making unauthorised announcements, the reason became clear. May needed to make these in her speech, for without them the Empress would have no clothes. Interesting she wore black.

Whilst she attempted, previously, to make much of listening to the Scottish Government, it is now clear there is a difference between listening and paying attention. There was really nothing of substance in what she had to say, bulwarked by British nationalist assertion:

“The job of negotiating our new relationship is the job of the [UK] Government.  Because we voted in the referendum as one United Kingdom, we will negotiate as one United Kingdom, and we will leave the European Union as one United Kingdom. There is no opt-out from Brexit.  And I will never allow divisive nationalists to undermine the precious Union between the four nations of our United Kingdom.” 

It can be useful in inter-nation and international relations to start from points of agreement. The difficulty with that is Scotland and the rest of the UK are travelling along different paths. May is not willing to acknowledge this, making for complications in discussions when the obvious is ignored.

If Brexit was just a minor issue, the normality of playing to ingrained national chauvinism at a Tory party conference would scarcely be particularly noteworthy. Not all in the hall of devotees were completely swayed by the outcome of 100 days of anguished thinking on Brexit.

Divisions and different interests on the UK’s future relationship with the EU are rippling across the surface of troubled waters. Not least will be concern in some parts of the Tory party that Parliament is being sidelined. Under the UK’s unwritten constitution Parliament is sovereign. The people in England and Wales decided this issue by referendum. May’s government respecting the electoral result is one thing, but having no influence or say in a process to be conducted and completed through executive action is disrespectful to the Westminster parliament. It is indeed no longer sovereign.

The Westminster parliament is now in the same position as the devolved administrations and parliaments – with one small difference. Devolved administrations will have the opportunity to express their views before being ignored. The Westminster Parliament is just being totally ignored.

The sidelining of parliament is the subject of several joined forthcoming cases in the High Court in London. One of the parties arguing that Article 50, commencing the process of withdrawal from the European Union, should not be moved without the prior approval of the UK Parliament, included in their skeleton argument the assertion that it would be contrary to Article XVIII of the Union with Scotland Act 1706.

Aileen McHarg, Professor of Public Law at the University of Strathclyde, believes this to be the first petition in an English court to argue a position on Article XVIII of the Acts of Union. A curiosity yes, but also interesting. Professor McHarg believes this argument will fail for a number of reasons, not least that an English court will most likely rule on precedent set by the Court of Session in Edinburgh.

But still interesting. The relevant reference in Article XVIII is to the question of ‘private utility’ with a clear distinction made on issues of public utility. Professor McHarg explains the purpose of Article XVIII: “This provides that the UK Parliament may make ‘no alteration … in Laws which concern private right, except for evident Utility of the Subjects within Scotland’.”  The intention was to preserve the essential character of Scots law and Aileen McHarg deals with this in some detail in her blog post.

The Acts of Union in both parliaments, and the subsequent formation of the UK Parliament, followed a process of agreement and treaty. Forty years ago we joined the then EEC that became the European Union and in the process acquired European citizenship, which is conferred directly on every EU citizen by the Treaty on the Functioning of the EU. (My emphasis).

When the UK leaves, we as individuals lose our EU citizenship. In Scotland we voted to Remain by a convincing margin, three times greater than the UK overall margin to leave. We did so because we wished to remain in the EU and retain attendant benefits including our EU citizenship, conferred directly.

To deprive a people of a citizenship they value against their will would be an authoritarian action imposed by another nation. Scotland is not an independent country but is recognised as one of the four nations of the UK, confirmed by May in her speech when referring to the four nations of the UK.

There is nothing that qualifies as ‘personal utility’ so clearly as citizenship. It defines who we are. The people of Scotland clearly voted to maintain their ‘personal utility’ as EU citizens and did so by individual action at the ballot box.

As I understand the position, when Greenland left the EU they lost their EU citizenship. The same will apply to the UK and to Scotland if we are taken out of the EU against our will. A reverse Greenland scenario may have new implications and possibilities.

I am a writer on contemporary affairs, not a constitutional lawyer, but it seems there is a case that might be built on the grounds of ‘personal utility’ in Article XVIII. Further digging by constitutional experts might supply additional argument to bolster just such a case.