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
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(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