Common Brexit Legal Myths Debunked

Legal myths and inaccuracies have been rampant in the days following the outcome of the EU referendum. I collected these as I sat sipping leche de pantera in sunny Barcelona, and have put together an explanation for each of the biggest howlers below.

‘The referendum was only advisory, not legally binding.’

No, the referendum is not legally binding – but that should be of no surprise, as no referendum in the UK ever is.

The response from a lot of folk at this point is to reference the 2011 referendum on whether or not to adopt a system of proportional representation for Westminster. This is thought of as a referendum where the result would be ‘legally binding’ on Parliament. Part of the relevant language of the Parliamentary Voting System and Constituencies Act 2011 that lends itself to this view is:

8Commencement or repeal of amending provisions

(1)The Minister must make an order bringing into force section 9, Schedule 10 and Part 1 of Schedule 12 (“the alternative vote provisions”) if—

(a)more votes are cast in the referendum in favour of the answer “Yes” than in favour of the answer “No”, and

(b)the draft of an Order in Council laid before Parliament under subsection (5A) of section 3 of the Parliamentary Constituencies Act 1986 (substituted by section 10(6) below) has been submitted to Her Majesty in Council under section 4 of that Act.

(2)If more votes are not cast in the referendum in favour of the answer “Yes” than in favour of the answer “No”, the Minister must make an order repealing the alternative vote provisions.

(3)An order under subsection (1)

(a)must bring the alternative vote provisions into force on the same day as the coming into force of the Order in Council in terms of the draft referred to in paragraph (b) of that subsection, but

(b)does not affect any election held before the first parliamentary general election following that day.

Rather than binding Parliament to a decision, this simply sets out the process by which they would be expected to implement the result in a statutory form. That in of itself does not impose a legal obligation on Parliament to actually do so. Even if it did, the doctrine of Parliamentary Sovereignty means that it is impossible for Parliament to bind itself in such a way. Just as the statutory recognition of the Scottish Parliament’s ‘permanence’ is symbolically important but legally meaningless, the same applies here. Politically, expectations may be set by statutory wording, but legally there is absolutely nothing to stop Parliament ignoring the result of any referendum.

The nature of the referendum does come into play when considering another one of the myths though, so we will come back to it later on.

From my own personal, political standpoint (rather than a legal one):

When it comes to the ‘advisory’ part of the claim about the referendum, it is a word that has conveniently only cropped up in the aftermath of the result, usually to aid a particular position. Changing the expectation of referenda in this way is a dangerous game. We should not start to assume that a referendum result will not be implemented by default, and that the Electorate are only giving their ‘opinion’, just because it technically isn’t legally binding under the constitution. If Parliament wish to ignore the expressed will of the people, we should not let them away with the political consequences of doing so.

At no point in the lead up to the EU referendum was it ever suggested that the result would only be ‘advisory’. To pretend otherwise would be a disgrace, and do a massive disservice to our Democracy. Imagine the fallout of Scotland had voted to leave the UK, only for the outcome to be dismissed on the basis that the referendum ‘was only advisory’.

The Scottish Parliament can veto the referendum result.’

Ah, wouldn’t it be glorious if it were true. Sadly, it’s not. This is a myth that appears to be caused, or at least perpetuated by the media’s misleading coverage.

The Sun's ill informed title
The Sun’s ill informed title. What a surprise.
Misleading headline from the Independent
Misleading headline from the Independent
The BBC's original headline
The BBC’s original headline

It’s worth noting that the BBC have since updated the story’s title to be more accurate:

BBC's updated veto title

There are some brilliant responses already that deal with this question in depth. As great as they are, they tend to approach things in a more academic fashion – which isn’t necessarily all that clear for those without a legal background. For this reason, I think it’s worth reiterating the position in a more straightforward fashion.

In short, the Scottish Parliament has no legal power to ‘veto’ any decision of the British Parliament – and particularly not this one. Westminster is sovereign, and can make or unmake any laws it likes, including the very existence of the Scottish Parliament if it so chose. (Again, see my previous blog on this very topic for more). There would of course be political fallout to any of these decisions, but legally nothing would stand in their way.

If there is no veto, what was all the media fuss about then?

There is a ‘constitutional convention’ that Westminster would seek legislative consent from the Scottish Parliament before legislating on any area that would affect devolved matters, which can be thought of as a sort of ‘gentleman’s agreement’; an understanding that the elected representatives of Scotland should at least be consulted before Westminster exercises their sovereign power to over-rule them. This could be (shakily) equated to a parent choosing to knock before entering into their teenagers’ bedroom. Nothing would stop them from waltzing in unannounced, but they make the choice not to out of respect for the other person’s individual autonomy. If parents continually disrespect this unwritten social understanding, then the overall relationship will suffer as a result.

In the interview with Nicola Sturgeon, you will notice that she never once mentioned the word ‘veto’. Rather, she stated that she would ask the Scottish Parliament to refuse to give their ‘legislative consent’, something which they are perfectly entitled to do. This may well pose a significant political and constitutional issue for Westminster, but nothing would prevent them from pulling out of the EU anyway.

As it stands, there is a very real chance that the Scottish Parliament would never have the chance to refuse to give their legislative consent anyway. If Westminster were to vote on the issue, this would be far more likely, but…

‘To leave the EU, the British Parliament will have to vote on it.’

Nope.

The idea here is that in order to give the now infamous Article 50 notification to commence the process of the UK leaving the EU, it will have to be approved by the Westminster Parliament – and potentially even the House of Lords. Those looking to find a way to avoid exiting the EU are hoping that since a majority of MPs are opposed to leaving, they will refuse to do so, scuppering the whole thing.

What people who bring this up forget is the existence of the ‘Royal Prerogative’, a curiosity of the British constitution that allows for action to be taken (usually on the advice of a Prime Minister) without requiring Parliamentary assent. This is the norm for international treaties, and it’s precisely the mechanism David Cameron was expected to employ before he dropped the mic and kicked the ball down the field for somebody else to deal with.

Parliament could block the repeal of the European Communities Act 1972 when it came time to do so, but if the Article 50 notification process had already been invoked, this would be completely pointless. After 2 years (unless there was a unanimous agreement to extend this period), we would be out of the EU under European law, whilst still domestically bound by the requirements.

‘Under European law, the result of the referendum is invalid as less than 65% of those who voted did so to leave.’

This particular idea seems to have come from people desperately reading various laws to come up with some way to nullify the vote’s outcome. It’s also completely incorrect, resulting from a simple misinterpretation of the law.

Edit: Apparently this error is the basis of a petition signed by over 4 million people to call for a second referendum. Even more important to clear it up.

The wording that gives rise to the confusion is found in our old friend Article 50 of the Treaty of the Functioning of the European Union. Section 4 states:

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.

and Article 238(3)(b) says:

(b) By way of derogation from point (a), when the Council does not act on a proposal from the Commission or from the High Representative of the Union for Foreign Affairs and Security Policy, the qualified majority shall be defined as at least 72% of the members of the Council representing Member States comprising at least 65% of the population of these States.

Rather than imposing any requirement on the percentage of people who have to vote to leave the EU in a Member State, this sets out the framework for how the European Council will go about negotiations should that Member State decide to leave. The 65% figure relates to the makeup of the group that will enter into those negotiations.

Further, Section 1 of Article 50 TFEU is pretty clear:

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

If the UK decided to draw straws, or have a haggis flinging competition to decide whether or not to leave the EU – that would be perfectly acceptable (so long as it complied with other general EU law principles). The point is that the decision making process is something that is entirely up to the Member State in question to determine. Again, this provides a neat segue into the final incorrect assertion:

‘The EU will force the UK to leave if we don’t trigger Article 50.’

If you listen to the President of the European Commission, Jean-Claude Juncker, it would sound like the UK is about to be kicked out of the EU, even if it doesn’t invoke Article 50. However, there is nothing in the European treaty that allows for that possibility.

As things stand, the UK is arguably still involved in the decision making process of whether to leave the EU or not, in accordance with the British constitution. The referendum is hugely important, and Westminster should ignore it at their peril – but given that it isn’t legally binding on the British Parliament, then it means absolutely diddly squat under European law.

Until the Article 50 notification is invoked, legally absolutely nothing has changed between the UK and the EU. This is why Juncker’s smart-ass riposte to UKIP in the European Parliament isn’t all that clever at all. Politically, pressure is mounting, and feelings are obviously running high, but the UK remains a full Member State – something which everyone would do well to recognise.

If you’re looking for some good legal resources (some with particular political slants), check out the following blogs:

https://publiclawforeveryone.com/

http://barristerblogger.com/

http://lallandspeatworrier.blogspot.com/

http://jackofkent.com/

Scotland, get ready to fight

Earlier today, we woke up to the terrible realisation that the UK had narrowly voted to leave the European Union. This was an outcome that I ultimately expected, but facing the stark reality of the situation has still left me feeling numb, and in shock. Opening my eyes to see ‘Nigel Farage declares independence day’ and ‘British Pound drops to a 31 year low’ on my phone’s lock screen is something I’m not sure I’ll ever be able to forget; reminiscent of a dystopian nightmare rather than reality.

To make things worse, the dogged, often proud ignorance of those smugly celebrating victory in the immediate aftermath has been staggering. As I write this, I am overlooking the City of Barcelona, and being here only renders the sadness even more palpable, and even harder to believe. 

However, this is not a drill. This is the real deal. Like it or not, the U.K. Has voted to leave the EU, and the question is what we are going to do about it now.

Many legal commentators have pointed out that the referendum isn’t binding. Whilst technically correct, this ignores the political reality, and does nothing but give a false sense of hope to those who are hurting most at this point. Of course the legal position should be stated, but it must be done holistically, not in a theoretical vacuum. There is no realistic chance of Westminster refusing to honour the outcome, nor should there be. I despise and despair at how the vote went, but the result must be respected. 

Scotland’s First Minister Nicola Sturgeon has announced that she plans to prepare for the possibility of a second Scottish independence referendum, in response to 62% of those who voted choosing to remain. She is right to do. The SNP stood for election to the Scottish Parliament just a few months ago with a clear indication that they would seek another referendum in this precise scenario. There are many who will not like this, but the Scottish people chose to return them to power in Holyrood knowing this. Just as the result of the EU referendum must be respected, so must that be.

We were told during the last referendum that ‘the only way to ensure Scotland’s continued membership of the EU is to vote to remain part of the U.K.’. For those of us who do not wish to see us removed from the EU despite a majority vote to remain, independence is the only possible solution. If that last shred of hope is to be realised, we need to be prepared for the fight of our lives. This is it. There will be no third chance. 

The last time we had a chance to vote on Scotland’s independence, it caught many of us by surprise. I don’t think I’m alone in feeling like even the vote itself couldn’t possibly be actually happening, up until the last few weeks. That is not the case this time around. We have woken up; we know the score, and if we want to have any chance of success we need to start preparing right now. 

Yes, we were told that a vote for Scottish independence would mean economic chaos… Leaving the EU… Cutting off ties with our neighbours… Jumping into the unknown… and yes, all of those arguments seem null given the inevitable Brexit fallout. However, we cannot rely on this alone to make our case. We need to be smarter in how we approach things, and have better, concrete answers for issues like currency. I have faith that Nicola Sturgeon and the SNP will be able to put together a solid case, but it’s up to us to make it compelling. 

Here are some general things that we need to start doing, from this point on:

  • Push for Scottish independence. We cannot rely on Nicola Sturgeon and the SNP alone to call for a second referendum. If we want it, we have to demand it. It’s now or never. Write to your MSP… Tweet them… Sign the SNP’s pledge of support. Do as much as you can to demonstrate the appetite that exists. 
  • Nail your colours to the mast early. In the first referendum, many of us waited far too long to express and articulate our positions, in order to avoid causing problems with friends or family. By the time we did, it was too late. This time, we have to speak up loudly, firmly, but politely. People will value what you think, and this is too important an issue for you not to be heard. Set up your own blog, write letters to newspapers, create music or other art… Just make sure you speak up.
  • Understand your arguments. It’s not enough just to want independence and argue with whoever disagrees. Get informed and understand why you believe what you do, and be able to articulate it. Don’t just reel off platitudes; be smart.
  • Challenge misinformation. Far too often during the EU referendum, we failed to challenge those making sweeping statements, in order to avoid the potential conflict that would come along with engaging. As difficult and frustrating as it may be, that has to change. If somebody says something that you know is wrong, speak up. If you aren’t sure what the answer is, but your gut tells you that something isn’t right, ask for evidence. Challenge others to back up their claims and explain them – firmly, but politely. This applies equally to our own side of the debate as it does to those who disagree with us. 
  • Think critically. Not everything the SNP does is good. Not everything The Tories do are bad. Don’t accept things just because other independence supports do. Don’t jump on the bandwagon. If people are criticising an article on Twitter, read it before commenting. Don’t just swallow what everybody else has, and don’t buy into the self aggrandising myths of the Scottish new media – including Bella Caledonia and the ilk. 
  • Keep the heid. Be kind. Be prepared to accept when you are wrong or someone has a better argument than you. Make concessions and see from the opposite point of view. Challenge misinformation but don’t resort to attacking other people. Do not vilify those who disagree. Independence will never be reached unless we win over hearts and minds. Labelling people and dismissing them will do nothing to aid that. 

Here are some specific challenges I think we have to overcome, and need to keep in mind: 

  • Independence is not in the bag. The big yellow map of Scotland from the EU referendum is undeniably symbolic, and a comfort to those of us who are hurting – but we have to remember that it’s not the full story. 62% voted to remain in the EU, and not all of them will automatically support an independent Scotland. There’s a long way to go, and we have to never forget that. 
  • Explaining why we want to be part of the EU. This is something we have failed to articulate in a way that is easily accessible to those not as invested in this debate. We need to find creative and clear ways of explaining why there is a difference between voting to be a sovereign nation, and being part of the European Union. It isn’t just about not having other people tell you what to to do. This is a challenge that will come up time and time again and we need to have s good response. 
  • Avoiding the echo chamber. Sharing on Facebook is fine, but experience has shown that we primarily end up talking to those who share our views rather than anybody who may oppose them. We need to find ways to have meaningful conversations with those outside of our echo chambers.

I’m tired, and I’ve lost three drafts of this post already trying to type it on my damn phone… But we aren’t going to get another chance at this. We need to be prepared for the fight of our lives, we need to be smarter and kinder than we were before – and we need to do it now. 

A Message for Bernie Sanders Supporters

Hilary Clinton has officially reached the threshold required to clinch the Democratic Party’s nomination for Presidential candidate. Save some political miracle, this means that we will not see Bernie Sanders in office in this American election cycle.

Bernie Sanders
Image by Gage SkidmoreCC BY-SA 2.0

I know that this is something that has caused many of my friends and family to experience a deep sense of hopelessness and despair; now faced with a choice between a Democrat firmly entrenched in corporate America and established political history, and… Donald Trump. That feeling is one that I know all too well, given the outcome of the Scottish independence referendum back in 2014.

Throughout this entire process, I have felt strong parallels between the increasing popularity of Bernie’s campaign – going from nothing to a significant force – and the grassroots growth of the Yes movement. I know the crushing realisation that comes with seeing the first salient, unexpected chance of real political change fall at the last hurdle, and I hurt alongside you.

After Scotland voted No to independence, I felt like I had lost my country. It felt as if the one chance we were going to get to make real progress had been squandered, and that the intoxicating hope in the lead up to the referendum was gone for good. As I wrote at the time:

For the past few weeks, we had dared to dream about what sort of country Scotland should be. It felt like we had found the beginnings of a new identity based on our shared values. The atmosphere was electric; the hope intoxicating.

[…]

We had the chance to do something brave, and amazing. We had the chance to rid our country of nuclear weapons; to declare our commitment to human rights; to challenge the political establishment, and to finally have a real say in our future. Instead, Scotland voted to remain part of the UK.

Reading over the words from that time still brings tears to the corners of my eyes. The pain of seeing peaceful revolution slip away never really disappears, and I stand side by side with Bernie supporters who feel that hurt just now.

In the aftermath of the independence referendum though, I began to see through the fog of despondency; to reassess what had actually happened, and to feel the fire return to my belly. To quote one of the articles that I found comfort in at the time:

The hurt will pass.  People’s allegiances change.  There are ways to regroup.  Opportunities to advance the democratic case for transformational change will come again. That is a universal constant.

Think back to what has been achieved in this nomination process. Bernie Sanders started out as a completely unknown and anonymous Senator, who nobody thought would even actually ever run – never mind get as far as he has. The media ignored him completely until they were forced to take notice through the sheer popularity that he managed to garner from ordinary people. Look around you. America is not the same country that it was before this campaign. Not only was a ‘crackpot socialist’ able to get significant mainstream media coverage, but he brought issues of social justice to the very forefront of the American political consciousness. Despite an ultimate failure to clinch the nomination, this has been an overwhelming victory in a system designed to stifle and destroy precisely that sort of speech. Yes, take time to grieve and mourn the loss, but don’t wait too long. Don’t let this setback be a knockout blow in the battle for progress. Wipe yer eyes, and on yer feet.

To quote Bella Caledonia:

Armed with little more than social media, blogs, and DIY creativity, we tried to take on the might of the British state and the vast power and wealth of the British establishment. And for a few weeks we had them terrified. Hold on to that feeling and be proud of it.

Hold on to the impetus created by the success of Bernie Sanders. Let that propel you and others who share those values to effect real, lasting political change in the future. Scotland has never been the same since the referendum; the landscape has shifted permanently. There is no putting the genie back in the bottle now. As Bernie tweeted yesterday:

This isn’t the end; it’s just the beginning. Make sure of it.

I’ll finish up with the words from a blog post that I wrote after I came to terms with the result of the independence referendum.

I am proud of us dreaming and debating what a better future might look like – whether that is together or independent. Now that the majority has spoken, it’s time to ensure that the shared values that rose to the surface are pursued.

Let’s keep asking the difficult questions and challenging the status quo.

Fighting for a fairer nation doesn’t stop here.

No, the Scottish Parliament isn’t Sovereign

Today I came across an article published on CommonSpace.scot by a guy called Anthony Barrnett, founder of opendemocracy.net. Entitled ‘Why the EU vote is an English, not British, reckoning’, it discusses the upcoming EU referendum, and the potential implications, with a particular look at the Scottish element.

It seemed like a good read, but before I got too far into it, there was this section:

Scotland has its own sovereign parliament. I emphasise sovereign, The Vow opens by saying that the Scottish Parliament is ‘permanent’. Gordon Brown, who oversaw the formulation of The Vow, was fully aware of the explosive constitutional consequences of this term.

It means that Westminster’s sovereignty no longer extends to Scotland. Now, suppose this sovereign parliament is confronted with the circumstances you describe. I’m not saying they are likely, but if indeed the referendum is as close as the polls currently suggest (not that I believe in them) then it is possible that there will be a vote for Brexit.

As a supporter of Scottish independence, I am all for strengthening the position of our Parliament wherever possible. However, that doesn’t extend into flights of fantasy. To that end, I feel compelled to clarify a few things in response.

On permanence

The formal statutory recognition of the Scottish Parliament as ‘permanent’ was undeniably symbolically important, but in reality it did little to impact the actual constitutional position. In fact, arguably this is precisely why Gordon Brown promised to make this change in the infamous vow; it sounds great rhetorically, without having any substantive practical effect.

The reason for this is pretty straightforward. Despite placing the Sewell Convention ‘on a statutory footing’, the British Parliament still retains ultimate sovereignty. If Westminster were to decide tomorrow that the Scottish Parliament should be abolished, passing an Act to that effect, there is nothing legally that would prevent them from doing so. No Parliament can bind another (or itself) through legislation (following Dicey’s Doctrine of Parliamentary Sovereignty). For this reason, the following clause (taken from the Scotland Act 2016) seems noble, but ultimately without any effective enforcement:

it is declared that the Scottish Parliament and the Scottish Government are not to be abolished except on the basis of a decision of the people of Scotland voting in a referendum

For some time there was a theory that certain Acts of Parliament have come to be entrenched with such constitutional importance that they have taken on a special status, and that their repeal could potentially be resisted by rebellious judges, should Parliament dare to attempt it. Examples of these include the European Communities Act 1972 (ECA), the Human Rights Act 1998, and the Scotland Act 2016. However, given the political developments over the past 5+ years, (not to mention the referendum that we are in the middle of) it should be clear that this is not the case. For more reading on that particular point, see this article on the UK Constitutional Law site.

Of course, should Westminster seek to abolish the Scottish Parliament, the fallout would likely be astronomical, but that does not mean that they do not hold the legal power to do so. Holyrood could well be permanent, but if so, it is only through the protections of the will of the Scottish people: not the law.

On Sovereignty

Scotland has its own sovereign parliament. I emphasise sovereign.

Given that the Scottish Parliament is not permanent in any legal sense, then it naturally cannot possibly be sovereign. By definition, if another body ultimately has the legal authority to bring your existence to an end, then you do not hold sovereignty.

To illustrate this further, s.29(1) of the Scotland Act 1998 states:

an Act of the Scottish Parliament is not law so far as any provision of the Act is outside the legislative competence of the Parliament

going on to explain that this includes [the Parliament] having: ‘no power to make any subordinate legislation, or to do any other act, so far as the legislation or act is incompatible with any of the Convention rights.’ In other words, it is legally impossible for the Scottish Parliament to bring about any law or action that is incompatible with the European Convention on Human Rights. Note, that this restriction doesn’t apply to the Parliament in Westminster. Why? Because Westminster is sovereign, and Holyrood is not. A sovereign Parliament cannot be legally bound in this way. Whilst Westminster can willingly choose to restrict its sovereignty by entering into international treaties and accepting the corresponding obligations, that does not mean that sovereignty is relinquished, and it does not have the restriction imposed by a third party.

Another grand statement included in the CommonSpace article is this:

It means that Westminster’s sovereignty no longer extends to Scotland.

What a wonderful thought! I am not sure how the author has come to this conclusion, as they don’t expand on this further in the article, but as it stands, it is completely inaccurate.

Again, whilst convention may dictate that the Westminster Parliament will not legislate in areas which fall within the competence of the Scottish Parliament, that does not mean that they are unable to do so. In fact, the whole nature of the Scottish Parliament is based on the granting of powers from Westminster. The only legal authority that the Scottish Ministers have is that derived from the sovereignty of the British Parliament; ‘a creature of statute’.

So whit?

Why does this matter? It matters because if the Scottish Parliament was sovereign, then we would be an independent, sovereign country – exactly what those of us who voted ‘Yes’ in 2014 were fighting for. That simply isn’t the case, and perpetuating disinformation does a disservice to us all. So no Anthony, sadly the Scottish Parliament is not sovereign. Yet.

 

Legal Threat from Martin Keatings

A few years ago I wrote an article about how the Scottish Independence Party were/are dangerous idiots.

At the time, the group appeared to clearly be linked to two individuals: Martin Keane and Deane Syme, and this was reflected in the article.

Today, I received a legal threat over that article from Martin Keane, claiming that he and Deane Syme had nothing to do with what the SIP became, and that I must immediately remove the article or face legal action in the Sheriff Court. Here is the full text of his e-mail:

Dear Stephen Blythe

It has been brought to my attention that you have an article on your site at the following address (https://iamsteve.in/tag/martin-keatings/)

The article itself deals with details of the Scottish Independence Party or SIP. I am writing to inform you that your article is factually incorrect and indeed rises to the level of libel. 

I will go through each part of the article and specify to you the factual inaccuracies in the hope that you will remove the article immediately. If you do not, then I will be required to take the matter further which may include you being summonsed to appear in the Sheriff Court.

You open the article “Tonight I became aware of the existence of the so-called ‘Scottish Independence Party’. No, not the Scottish National Party, but the Scottish Independence Party – aka Martin Keatings and Deane Syme.” – Considering the fact that your article was launched on 27/10/2014, this statement, straight off the bat is factually incorrect. Both Dean & I did consider setting up the SIP, however, based on the preponderance of evidence of the current political climate at that time in Scotland & also the fact that I did not have the time to continue forward, Dean and I both decided, 2 weeks prior to that date, that we were in fact not going ahead with it.

The group on facebook was left open to the public and the existing members of that group, to do with it as they pleased. But Dean & I’s involvement went no further than thinking about it, trying to find out if there would be enough support & indeed then deciding not to go ahead. This all happened within the 2 weeks AFTER the referendum.

Any posts after that time were down to third parties and not Dean or I. That makes the rest of your article totally false because any post, any statement, any action, any idea thereafter was nothing to do with Dean or I. The real kicker, of course, is that the situation is further confused by the fact a unionist tried to establish a party in the same name later on. You article, factually incorrect and indeed incorrectly naming us resulted in both of us receiving full blown abuse from the Yes community. Something I was unaware of until I got back from visiting my then-fiancee in Moscow.

Now it seems your factually incorrect article is dragging us into another dispute. This has now reached the point where it needs to stop. I am asking you to kindly remove the article – or, you may if you wish, remove mine and deans name from said article and put a line at the bottom that says. MARTIN KEATINGS AND DEAN SYME ARE IN NO WAY INVOLVED WITH SIP.

Its a simple case of, we had an idea, it didn’t go anywhere, someone else (the loons) decided to pick it up, you reported on it and linked us to it (which is incorrect) and then that idea didn’t work. Another loon picked it up again and the web community googled and guess what came up.

Please remove the article, or our names (with an addendum)or i’m going to have no other choice but to make this legal stephen, and to be honest I don’t really want to do that to you bud.

Martin

I’m not really sure what this is meant to mean. Martin states that himself and Deane considered setting up a party under this name, created the Facebook page and associated discussions, but then decided not to go ahead with it… which means that referencing them in the article was perfectly legitimate.

Given that the standard for defamation requires that a statement must be untrue and lower the defamed in the estimation of right thinking members of society, and that saying somebody is a member of a political party when they are not does not qualify, I would suggest that bringing an action for libel would not be the best use of time or effort.

I have clarified the original article to highlight Martin’s concerns, and that should put an end to the matter.

Why I’m voting to Remain in the EU (from a ‘Yes’ voter)

I’ll be voting for the UK to remain part of the European in the imminent referendum.

It’s no secret that I am a staunch advocate for Scottish independence, and despite being entirely separate issues, the two are often conflated – and it isn’t immediately clear how to the two positions can be naturally compatible. This is something that few people have addressed directly, so I’m going to do so – explaining my reasons for voting ‘Remain’, with additional reference to my pro Scottish independence stance.

Before getting into the weeds, a few important things to note:

  • The arguments made will relate only to the current British constitutional setup. In other words, they apply to the question at hand: whether the UK should vote to Remain in the EU. If the question was solely about the membership of an independent Scotland, then things may be different. Maybe not, but that’s not something that I’m going to address in any detail.
  • This is about the UK’s membership of the European Union, and has nothing to do (at least directly) with the European Convention on Human Rights, Strasbourg, or the Human Rights Act.
British Empire Map
‘British Empire Map’ by ‘Geordie Bosanko’.

Reason 1: British Sovereignty

Background: 

As the Leave campaign have stated, this whole debate is really about sovereignty. In other words, who holds the final say over what laws are enacted in the UK. Sadly, this is one of the most complicated parts of the issue, and also one of the most grossly over-simplified.

Those championing the Leave cause feel that increasingly the UK is subject to a barrage of new laws from Brussels which require the UK to either adopt legislation that we do not want, or prevent us from enacting the laws that we do want – and that we have to end our membership of the European Union to prevent this.

My views: 

One of the key concepts underpinning much of the discussion around this issue is Dicey’s Doctrine of Parliamentary Sovereignty. Fundamentally, this is the political theory that nothing can bind the British Parliament, including Parliament itself. Practically, this is why a Labour government is not able to create laws that a later Tory government couldn’t overturn.

On the face of it, this seems like an eminently sensible thing. Parliament is a manifestation of the expressed will of the British people, and given that, they should be the only ones who hold the ultimate decision making power. This is tough to argue with in the abstract (and the academic in me resonates with such a clear principle), but it is clearly not the full story. Much in the same way that social contract theories are fascinating on their own, but have scant relation to the real world, parliamentary sovereignty does not exist in a vacuum, devoid of all other practical realities. The romantic notion of British sovereignty relies on a myopic view of the UK as the only, or most important nation in the world – one that would have made a lot more sense in the 17th Century when Dicey was kicking about than it does now.

Just as we have complete control as individuals over our actions, we do not exist in isolation, with an unfettered ability to do whatever we want, whenever we want – at least not without consequences. We retain our personal sovereignty whilst also making decisions based on influence as pressure from a variety of outside actors such as friends, family, our communities, and the law.

Currently, the British Parliament is perfectly able to comply with parts of European law that it doesn’t like, but there would of course be consequences for doing so. It may not fit Dicey’s idea of Parliamentary Sovereignty, but it doesn’t mean that British sovereignty itself is impinged. Instead, it is simply part of the reality of living in a world where you are not the only one in existence. What those talking about British sovereignty are really arguing for is the ability to remove themselves from consequences – and that’s a completely different thing entirely.

One final point to consider is that even if we do leave the EU, our other ties to the union mean that it would be impossible to avoid their influence entirely. Even if we succeed in clawing back our hallowed core of British Parliamentary sovereignty, we will be bound by other trade obligations necessary to ensure the stability of our economy. One only needs to look at Norway to see this in practice: forced for practical reasons to accept many of the European regulations, whilst having no power to influence them.

To me, this all feels akin to a stroppy teenager moving out of their parent’s house to escape rules that they perceive as unfair, only to discover that they still can’t play their music at 2am. They may finally have their sovereignty in theory, but remain unable to exercise it in the manner they want to.

How does that work with Scottish independence? 

Unsurprisingly enough, as a supporter of Scottish independence, I don’t have much sympathy for arguments that are based on a notion of British sovereignty. The concept itself seems completely alien, and I don’t believe that the British Parliament is a genuine expression of the British people in Westminster; only an expression of the majority of England. For this reason, it should be immediately clear why Yes voters would struggle to get onboard with an argument rooted in that premise.

Additionally, when we look at the debate through the lens of sovereignty, it helps explain why the question of Scottish independence is completely separate from EU membership. Whilst the European Union is a political union of sovereign nation states, there is no sovereignty for Scotland as part of the United Kingdom.

EU Referendum

Reason 2: Curtailing the excesses of individual governments

The primary driving force for the formation of the European Union was to prevent the possibility of another Nazi Germany ever taking place again on the continent, by binding the constituent countries closer together.

One of the main reasons I support the UK continuing membership of the EU is to ensure that people are protected from the excesses of any single government. This is something that applies equally to our own, and to those of other Member States. I fundamentally disagree with the premise that national governments should hold absolute power over their citizens, and the only solution to that is to be part of a supra-national community that holds its members to account on the basis of shared values – without stripping them of their ultimate sovereignty.

In situations where extreme governments come to power, the EU acts as a great balancing force, pulling all members towards the political centre. This is not a perfect solution, but acts as an effective buffer against the historical fluctuations of the domestic politics of individual countries – whilst also leaving enough room for voters to take different ideological positions.

How does that work with Scottish independence?

From the perspective of a supporter of Scottish independence, I already feel as if we are subject to the undesirable ideological position of a Westminster government that we (definitively) did not vote for. This situation doesn’t appear likely to change anytime soon, and so the EU is one of the few things that helps curtail the worst excesses of that.

Should it be the case that Scotland was a sovereign nation in its own right, I would still hold the position that we would need to be a member of a supra-national political union that would prevent against the excesses of our own government – and to help ensure that the citizens of other Member States were equally protected.

EU Members + Proposed

Reason 3: Free Movement of Persons

An important pillar of the EU is what is known as the the free movement of persons, but which is actually the free movement of workers. The distinction is important, as contrary to popular belief you cannot immediately go to another European country and start getting benefits. In other words, you can go and stay in Italy if you want, but you need to be pursuing an economic activity, not just living off the Italian welfare system whilst lying on a beach drinking Aperol Spritz.

After the attacks in Brussels, some took them as a reason to attack this core concept of EU membership. This was on the basis that the lack of internal borders between European countries allowed the attackers to enter into Belgium undetected, from weak external border checkpoints in places like Greece. This is undeniably a huge issue to tackle, but it should have no bearing on the debate over British membership of the European Union. Whilst the rights enjoyed by European citizens apply to those in all Member States, the single external border is separate. Known as the ‘Schengen Area’, neither the UK or Ireland are signatories to the agreement. This has led some people to state that if we leave the EU, nothing will change in terms of how we travel to countries within the EU, which simply isn’t true. Whilst it is correct that there’s unlikely to be much disruption to people going on their holidays, there are a host of rights that we enjoy as European citizens that have nothing to do with Schengen – including the right to live and work in another EU country. Rights that will be lost if we leave.

This particular point is one that genuinely perplexes me, as it isn’t just about those who have chosen to make the UK their home; it’s about the millions of British people who have exercised their Treaty rights to live abroad – including many of my own friends and family. There hasn’t been even the scantest of attempt to answer questions about what will happen to them in the event of a ‘Leave’ vote, and I think it’s a detestable way to treat people: leaving their futures hanging in limbo on the basis of a Tory party argument over British sovereignty. If anybody wants to explain how both the UK and remaining EU Member States would deal with such a huge issue – both legally and practically – please do speak up. So far the response has been nothing but a deafening silence.

To be blunt, I do not believe that immigration is a genuine problem – at least not with regards to immigration from the European Union. I believe that British emigrants enrich the cultures they move to, just as immigrants to the UK greatly enrich our own culture. We are not ‘running out of room’, or being ‘over-run’, and it is hugely ironic to hear those on welfare complaining about how ‘we will have to pay for all these fuckers coming over’. Oh, will ye, aye?

To finish, here’s a specific example of why I don’t trust the government on this issue. The Tories routinely wheel out rhetoric about how British people should come first, and that EU citizens shouldn’t have the same rights that we enjoy when they come to the UK, but this is diametrically opposed to the laws which they themselves have brought in. The simple fact is, that as a British citizen married to a non-EU partner, I have less rights than a European citizen with a non-EU partner moving to the UK. I’ve written about this in the past, but the sheer bare faced hypocrisy of Westminster on this means that I will never believe any of their hollow proclamations about protecting British interests when it comes to the freedom of movement of persons. They are the ones who have systematically eroded them, and only the EU allows some protection.

The mark of a government that truly believes its citizens should come first isn’t one that gives them less rights than the people they don’t want in the country.

How does that work with Scottish independence?

My wife and I have been treated with such contempt by the British government simply in our attempts to be together, and the law is so deliberately contradictory and unclear that it has only reinforced my desire for Scottish independence. The lack of concern for our right to family life, and the implementation of some of the harshest possible requirements on me as a British citizen to be with my wife simply solidify my desire to be disassociated from that status. As far as I am concerned, Scottish independence is the only way to escape the hypocritical immigration laws imposed by the Westminster government that are biased towards their own citizens, and that are only buffered by European freedom of movement.

Cassis de Dijon
Dijon Drink‘ by Sonja Stark.

Reason 4: Trade

One of the arguments from the Leave campaign is that due to the importance of the UK market, EU Member States would never stop trading with the UK, irrespective of our own membership status. As one UKIP MP stated: ‘The French aren’t going to stop us buying their wine.’. Of course, they are correct on that point, but what many fail to either understand, or choose to ignore, is that whilst we will still be able to trade with the European Union, we will do so at a huge automatic disadvantage due to the nature of EU law.

As well as the free movement of workers, another pillar of the European Union is the free movement of goods. What this means in practice is that (generally) anything made or sold in one Member State has to be accepted without discrimination. In other words, Germany can’t stop blackcurrant liquers from being imported from France for not being alcoholic enough (yep, really). To bring it home a little, EU law prevents any other Member State from adding additional taxes, fees, regulations, or any other restrictions on British products when they are brought into the country. Leaving the EU would mean that those protections would no longer apply, and British manufacturers – from the biggest to the smallest – would find themselves priced out of many important markets.

It appears that the hope is that in the event of leaving the EU, the UK would then negotiate a trade deal which would give us the same sort of protections that we currently receive. This is based on the naive view that Britain is such a vastly important market that other countries couldn’t possibly give up the chance to do business with us. The reality is that many Member States of the EU already view the UK (rightly, for many reasons) as having an inflated sense of entitlement. It is simply not plausible that we will be handed all sorts of benefits without the obligations and responsibilities of membership – not to mention unjust.

How does that work with Scottish independence?

There isn’t much in this section that is all that directly relevant to the independence discussion. One thing that I do find curious though is the number of people who voted ‘No’ to Scottish independence on the basis that there was no sound economic plan presented, that are suddenly perfectly happy to leave the European Union when the economic justification is equally – if not more uncertain. A lack of certainty in of itself isn’t really an issue for me, as there will always be unknowns during times of political change,  but to use that as a justification in one debate and then have no trouble with it in another suggests that it was never really the real problem in the first place.

So, aye.

There we have it. I’m no EU apologist. From the abject failure to help the Greek people in their time of need, to the introduction of ludicrous laws such as those dealing with website cookies, there is much to be desired from the union in future. That said, there are also many positives. You might not agree with my own personal reasons for staying in, but hopefully at least consider them. The polarised, disingenuous, and often xenophobic nature of the debate has been deeply troubling, and I desperately hope that whatever way the referendum goes, that rhetoric doesn’t point towards what the future of the UK, and wider continent is going to look like.

At the end of the day, intellectually and academically I could come down on either side of the fence – far more than I ever could on the issue of Scottish independence anyway. The reasons that people will choose to either vote or remain will both be ideological, and deeply personal. These are my reasons for staying.