INIS Free ?

Aidan O’Neill

In his poem The Second Coming written in 1919 at a time of political and social ferment across Europe and an earlier constitutional breakdown within the United Kingdom, WB Yeats (that great Anglo-Irishman, a descendant and representative of “no petty people”) wrote the following lines:

… Things fall apart; the centre cannot hold;

Mere anarchy is loosed upon the world,

The blood-dimmed tide is loosed, and everywhere

The ceremony of innocence is drowned;

The best lack all conviction, while the worst

Are full of passionate intensity.

Surely some revelation is at hand ….

Against that apocalyptic vision, it is of some interest to note a recent op-ed piece in the Irish Times, in which the Irish writer Fintan O’Toole has made the intriguing suggestion that one possible political response to the further break-down of our constitutional order which the Brexit vote heralds, might be for a complete re-configuration of the nations within the Anglo Celtic Archipelago/Atlantic Isles.  He suggests that Scotland and Northern Ireland might leave (and so dissolve) the United Kingdom, and join Ireland in some form of, a yet to be worked out, union.

Historic precedent for a Scots-Irish union ?

It is sometimes said to be a characteristic of the Scots and Irish that (like the Bourbons) that they have learned nothing and forgotten nothing.   Their role in a Tolkien saga might be that of “The Grudge Bearers”.

In that spirit, and taking the approach of la longue durée to Fintan O’Toole’s suggestion, we might find some historic precedent for setting up a Scottish-Irish Union (sans et contre l’Angleterre) in the campaign of Edward Bruce, younger brother of and then heir to Robert Bruce, who in the year after his brother’s 1314 victory at Bannockburn, sailed to Ireland from Scotland with a sizeable fighting force and there allied with native Irish fighting against Anglo-Norman magnates owing fealty to the English crown, and had himself proclaimed High King of Ireland.

This is attested to in a remarkable document of 1317 which the native Irish princes (led by Donal O’Neill, king of Cenel Eoghain or Tyrone) addressed to the Avignon Pope John XXII through two of his papal nuncios who were then in England attempting to broker a post-Bannockburn peace between Edward II of England and Robert Bruce, King of Scots.   This Remonstrance notes in part as follows:

“[O]n account of the injustice of the kings of England and their wicked ministers and the constant treachery of the English of mixed race, who, by the ordinance of the Roman curia, were bound to rule our nation with justice and moderation and have set themselves wickedly to destroy it; and in order to shake off the hard and intolerable yoke of their slavery and to recover our native liberty, which for a time through them we lost, we are compelled to wage deadly war with them, aforesaid, preferring under stress of necessity to put ourselves like men to the trial of war in defence of our right, rather than to bear like women their atrocious outrages.

And that we may be able to attain our purpose more speedily and fitly in this respect, we call to our help and assistance Edward Bruce, illustrious earl of Carrick, brother of Robert by the grace of God most illustrious king of the Scots, who is sprung from our noblest ancestors.

And as it is free to anyone to renounce his right and transfer it to another, all the right which is publicly known to pertain to us in the said kingdom as its true heirs, we have given and granted to him by our letters patent, and in order that he may do therein judgment and justice and equity which through default of the prince Edward II the King of England have utterly failed therein, we have unanimously established and set Edward Bruce up as our king and lord in our kingdom aforesaid, for in our judgment and the common judgment of men he is pious and prudent, humble and chaste, exceedingly temperate, in all things sedate and moderate, and possessing power (God on high be praised) to snatch us mightily from the house of bondage with the help of God and our own justice, and very willing to render to everyone what is due to him of right, and above all is ready to restore entirely to the Church in Ireland the possessions and liberties of which she was damnably despoiled, and he intends to grant greater liberties than ever otherwise she has been wont to have.

May it please you therefore, most Holy Father, for the sake of justice and general peace mercifully to approve what we have done as regards our said lord and king Edward Bruce, forbidding the King of England and our aforesaid adversaries henceforward to molest us, or at least be pleased to render us with fitting favour our due complement of justice in respect of them.

For know, our revered Father, that besides the kings of lesser Scotia who all drew the source of their blood from our greater Scotia, retaining to some extent our language and habits, a hundred and ninety seven kings of our blood have reigned over the whole island of Ireland.”

The Avignon Papacy neither recognised Edward Bruce’s claim to the High Kingship of Ireland, nor did it respond favourably to the Irish princes’ Remonstrance.  In October 1318 the Scots-Irish army under Edward Bruce was defeated by the Anglo-Norman forces of Edward II.   Edward Bruce was killed, his body quartered and sent throughout Ireland and his head delivered to King Edward II. Continue reading


Aidan O’Neill

Looking back on the result of the Brexit vote, future historians may well conclude that the post-WW II United Kingdom of Great Britain and Northern Ireland was, like Belgium, held together by the European Union.

Flanders and Wallonia dare not split into independent countries (despite decades of mutual antipathy and non-co-operation) because neither wishes to lose Brussels as its capital.   But London does not hold the UK together. The Brexit vote revealed the vast gulf in social attitudes and political aspirations between London and the rest of England. The encircling M25 haloes and isolates London, just as the medieval palisade separated pre-Tudor Dublin from “Irish” Ireland.   L’Angleterre profonde now lies beyond the Pale, and London as an international city state in waiting is profoundly out of sympathy and out of step with it.

Meanwhile, north of Hadrian’s Wall, a different politics flourishes in which London, and the rest of England, appear increasingly irrelevant.   The SNP now run a minority administration from Edinburgh, largely as a result of the remarkable resurrection of the Tory vote under the leadership of Ruth Davidson MSP and the continued collapse of the Labour vote under the leadership of Kezia Dugdale MSP. But the Scottish Tories keep their distance from their sister party to the south and contemplate, as part of their on-going de-toxification, dropping the label “Conservative” and returning to their pre-1965 designation as the Scottish Unionists.   And Scottish Labour sinks into yet deeper irrelevance, while flirting with talk of a post-Brexit complete federalisation of the UK.

In his speech on 14 September 2014 following the result of the Scottish independence referendum (in which one of the claims made by those advocating the status quo was that only by voting to stay in the UK could Scotland ensure that it remained within the EU) the then UK Prime Minister David Cameron proclaimed that he was “a passionate believer in our United Kingdom” and that he “wanted more than anything that our Union stay together”.   And in her 13 July 2016 acceptance speech on succeeding him as UK Prime Minister Theresa May noted that

“The full title of my party is the Conservative and Unionist Party. And that word unionist is very important to me. It means we believe in the union, the precious, precious bond between England, Scotland, Wales and Northern Ireland.”

But just what makes this bond so doubly “precious” and why it should be the object of “passionate belief” has not been further developed.   It is not clear that this is, in any event, a sentiment that is shared in l’Angleterre profonde by whose votes the Conservative party won its unexpected majority in the House of Commons in May 2015.   The Conservative successful general election campaign was marked by dog-whistle anti-Caledonian insinuations that a vote for the Labour Party meant a vote for the SNP in coalition with it, putting “sad Ed” Miliband into the pockets of “smart Alec” Salmond and “tricky Nicky” Sturgeon.

As the distinct polities which make up the still nominally United Kingdom grow ever further apart, the only solution which appears to be offered is the delegation – but never the complete transfer – of more powers to the English regions and to the non-English nations.  This might be termed disintegrative devolution.

But the shibboleth of sovereignty means that power is never unequivocally divested from Westminster.   Powers devolved are powers retained.   Thus when it comes to the (Brexit) crunch from a Westminster perspective, while the devolved legislatures and executives may properly expect to be consulted on and advised of negotiations, they cannot expect to participate in them.   And they are certainly not regarded as having any power to prevent either the UK as a whole, or any of its constituent parts, from leaving the EU, notwithstanding that in the Brexit referendum (in which UK resident Commonwealth and Irish citizens, but not other EU citizens, had a vote) Scotland voted 62% in favour of remaining in the EU against 38% for leaving it, while the vote in Northern Ireland was 56% for remain and 42% for leave.

Unlike Westminster, the devolved legislatures are elected on the basis of a franchise which gives the vote to citizens of other EU member states lawfully resident in their territories.   The devolved executives may therefore properly claim to have obtained a democratic mandate from, and be democratically accountable, to these EU citizens; and may plausibly claim to have the constitutional duty to represent and give voice to those individuals’ concerns and claims.   But the fact that EU citizens currently lawfully resident in the UK are mentioned both by the Prime Minister and by her newly appointed Secretary of State for Exiting the European Union, David Davis MP, only in the context of their possible use as human shields or bargaining counters in the Brexit negotiations rather indicates that the little Englander politics of the “nasty party” have not been wholly abandoned under this new UK premiership. Continue reading

A Tale of Two Referendums

Aidan O’Neill QC

Reflecting on the French Revolution in the opening lines of A Tale of Two Cities, Charles Dickens wrote:

“It was the best of times, it was the worst of times, it was the age of wisdom, it was the age of foolishness, it was the epoch of belief, it was the epoch of incredulity, it was the season of Light, it was the season of Darkness, it was the spring of hope, it was the winter of despair, we had everything before us, we had nothing before us, we were all going direct to Heaven, we were all going direct the other way…”

This passage may serve equally well as a description of the competing claims that were made by the opposing sides in this year’s Scottish independence referendum.

The pro-independence campaign claimed that voting for an independent Scotland would open the way to the best of times, to the age of wisdom, to the epoch of (self)-belief, to the season of Light, to the spring of hope, in which Scots would have had everything before them and which would lead directly to an earthly (Caledonian) paradise.

The pro-union campaign, in response, struck a primarily negative note, seeming unable to find the words to sing the virtues of a British union continuing into the future.   Instead, they said that an independent Scotland would open the doors to the worst of times, that voting in favour of separation would be an act of foolishness and of self-delusion which the voters in Scotland would live to regret in a winter of despair, with nothing before them but a road paved with good intentions and broken dreams.

I fear that similarly competing and irreconcilable claims will be made by the opposing sides in the campaign around the anticipated referendum on the United Kingdom’s continuing membership of the European Union, following the coming general election.   Those wishing the UK to break from the EU will doubtless extol the mythic virtues and heroic vigour of Albion unbound. Those advocating the UK’s continued membership of the EU – like those who campaigned for Scotland’s to stay in the (British) Union – will find it difficult to articulate a positive vision of Europe which will resonate with (particularly English) voters and will, instead, fall back on emphasising the economic dangers and market uncertainties which will come with our “turning our back on Europe” and falling prey to those vices etymologically associated with island life: isolationism and insularity. Continue reading

Not waving, but drowning ? : European law in the UK courts

Aidan O’Neill QC

The relationship between EU law and the municipal law of the United Kingdom seems to lend itself to allusions to water.   In Bulmer v. Bollinger [1974] Ch. 401 Lord Denning famously referred (at 418F) to the incoming tide of EU law, observing that “it flows into the estuaries and up the rivers. It cannot be held back, Parliament has decreed that the Treaty is henceforward to be part of our law. It is equal in force to any statute.”   And the Factortame litigation, too, was all about water, and the right to fish in it – specifically the Treaty based rights of Spanish fishermen not to be subject to discrimination on grounds of nationality when seeking to exercise their free movement rights to trawl for fish in UK waters.

The long decade of Factortame litigation – which unequivocally established that national courts in the UK should treat EU law based rights as being of a higher normative level than Acts of Parliament and that the UK could be found liable by UK courts to pay damages to those who suffered loss from Parliament’s enactment of an EU law incompatible statute – might now be seen to represent the high-water mark of the influence of EU law on domestic law.   For tides ebb, as well as flow.   The complaints of those of a Eurosceptic ilk of the Member States being “swamped” by a tsunami of EU regulation, of business drowning in EU rules have been increasingly dominant in our political discourse.   Eurocracy is associated with ever growing popular distrust.   The binding of Europe into monetary union is now seen as an act of hubris (the Greeks always have a word for it).     Even among the Europhiles, ideals and ideas seem to have drained from their grand post-War European project.   Scripture says: “without vision the people perish; but he that keepeth the law, happy is he”.   Yet what law is to kept, as the happy certainties of post-sovereign supra-nationalism embodied in une certaine idée de l’Europe no longer command common assent and have become unhappy uncertainties ?

Our courts are, of course, not insensible to this shift, this seeming turning of the political tide.   Recent judgments of the UK Supreme Court, in particular, have marked an increasing turn inward, as the continental is abandoned for the insular and the primacy of national constitutional fundamentals are re-emphasised over the provisions of international Treaties. But what “constitutional fundamentals”, you might well ask ? Classically, the only constitutional fundamental which existed in the UK under the Diceyan analysis of the constitution was the sovereignty of Parliament – and that has been considered and dealt with in Factortame.   What, then, is left within the UK constitution after Factortame ?  The judicial and extra-judicial writings of Sir John Laws seem to provide the beginnings of an answer. In R v Lord Chancellor Ex p Witham [1998] QB 575 he noted (at 581) that “in the unwritten legal order of the British state” it is “the common law [which] continues to accord a legislative supremacy to Parliament”. He also observed that the courts should recognise certain fundamental rights at common law whose “existence would not be the consequence of the democratic political process but would be logically prior to it”. In Thoburn v. Sunderland Council [2003] QB 151 he noted (at 185) that “the traditional doctrine [of Parliamentary sovereignty] has in my judgment been modified. It has been done by the common law, wholly consistently with constitutional principle” by the recognition of certain statutes as “constitutional” in the sense that, while not being entrenched, their provisions were not subject to implied repeal by later “ordinary” Acts of Parliament.   Parliament could modify their terms, but only expressly.   In Jackson v. Attorney General [2006] 1 AC 262Lord Steyn went further, suggesting (at § 102), that there might be some constitutional fundamentals “which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish”.   Despite some initial scepticism about the need or utility for reliance upon notions of common law constitutionalism in a post HRA/post EU Charter era (see for example Watkins v. Home Office[2006] UKHL 17 [2006] 2 AC 395 per Lord Bingham at § 29 and per Lord Rodger at §§ 59, 61) the ideas of Sir John Laws appear now to have triumphed into the new constitutional orthodoxy.     They were certainly central to the finding of the UKSC in Axa General Insurance Company Ltd v Lord Advocate [2011] UKSC 46 [2012] AC 868 that statutes of the devolved legislatures were subject to a form of common law review (for breach of the rule of law and/or fundamental common law rights).   In Kennedy v Charity Commission [2014] UKSC 20 [2014] 2 WLR 808 Lord Toulson at § 133 regretted what he saw as “a baleful and unnecessary tendency to overlook the common law. It needs to be emphasised that it was not the purpose of the Human Rights Act that the common law should become an ossuary.”   In R (Buckinghamshire County Council) v Transport Secretary [2014] UKSC 3 [2014] 1 WLR 342 Lord Neuberger and Lord Mance – in rejecting what looked like a fairly clear line of CJEU case law on the issue of what might properly be expected in and of a Strategic Environmental Assessment for large infrastructure projects (such as HS2) – suggested that there may be constitutional fundamentals which even EU law could not overcome.   As they noted (at § 207) that

“the United Kingdom has no written constitution, but we have a number of constitutional instruments. They include Magna Carta, the Petition of Right 1628, the Bill of Rights and (in Scotland) the Claim of Right Act 1689, the Act of Settlement 1701 and the Act of Union 1707. The European Communities Act 1972, the Human Rights Act 1998 and the Constitutional Reform Act 2005 may now be added to this list. The common law itself also recognises certain principles as fundamental to the rule of law.”

And in R (Osborn) v Parole Board [2013] UKSC 61 [2013] 3 WLR 1020 the UKSC emphasised (in Lord Reed’s judgment at § 62) that the starting point in fundamental rights cases should be “our own legal principles rather than the judgments of the international court”. Thus is the common law is resurrected, statutes and ancient charters deemed “constitutional”, old legal rules become fundamental principles, and rights discourse is de-Europeanised, re-patriated and re-branded as embodying the une certaine idée de l’Angleterre (or sometimes, even, de l’Ecosse). Continue reading

Scotland, independence and the EU: the Sturgeon response

Aidan O’Neill QC

In the wake of yesterday’s Statement to the Scottish Parliament by Scotland’s Deputy First Minister, Nicola Sturgeon MSP, responding to the Barroso intervention which suggested that an independent Scotland would automatically leave the EU and would have to apply for admission as a new Member State, a number of legal questions arise.

The first issue is whether, in the period before Scotland formally leaves the British Union, the EU and the Scottish government can lawfully enter into any negotiations regarding the terms upon which an independent Scotland might be recognised as a Member State of the European Union.    The answer to this legal question depends ultimately on whether the Court of Justice of the European Union (“CJEU”) would consider Scotland after a positive vote in favour of independence but before it left the British Union, to already be a “European State” for the purposes of Article 49 of the Treaty on European Union (“TEU”).   To predict how the CJEU might determine that question requires some understanding of that court’s approach to textual interpretation, particularly Treaty provisions.  Continue reading

Scotland, independence and the EU: the Barroso intervention

Aidan O’Neill QC

The President of the European Commission, José Manuel Barroso, has responded to an invitation from the House of Lords Economic Affairs Committee for the European Commission to contribute to the committee’s inquiry into “The Economic Implications for the United Kingdom of Scottish Independence”.    Surprisingly perhaps, his response does not, however, deal with any economic issues should the 1707 Treaty of Union be dissolved and Scotland become an independent State, but rather with legal ones. Mr. Barroso’s first degree is in law, and he undertook postgraduate studies in economics and in international relations. It is to be expected that his views will be legally informed and clearly reasoned. The relevant paragraphs of his letter to the House of Lords on the issue states as follows:

(1)  “The EU is founded on the Treaties which apply only to the Member States who have agreed and ratified them.

(2)  If part of the territory of a Member State would cease to be part of that state because it were to become a new independent state, the Treaties would no longer apply to that territory.

(3)  In other words, a new independent state would, by the fact of its independence, become a third country with respect to the EU and the Treaties would no longer apply on its territory.

(4)  Under Article 49 of the Treaty on European Union, any European state which respects the principles set out in Article 2 of the Treaty on European Union may apply to become a member of the EU.

(5)  If the application is accepted by the Council acting unanimously, an agreement is then negotiated between the applicant state and the Member States on the conditions of admission and the adjustments to the Treaties which such admission entails.

(6)  This agreement is subject to ratification by all Member States and the applicant state.” Continue reading

EU Law for UK Lawyers: Review

We don’t generally use the blog to promote the editors, but this rather nice review of EU Law for UK Lawyers by Aidan O’Neill QC appeared in the Journal of the Law Society of Scotland and we thought we would share it. The book is available at all good legal bookshops and online.

EU Law for UK Lawyers

Aidan O’Neill QC

ISBN: 978184113046X
PRICE: £75

O’Neill opens by stating: “The European Union is based on a conviction, confirmed in and by World War II, that the experiment of the nation state had failed.”

In a legal world where specialism is seen as an end in itself, it is refreshing to have an author consider one supposed area of specialised law and demonstrate its relevance, influence and direct impact on individuals’ rights and obligations across all areas of practice: civil, commercial, criminal, employment, competition, planning, intellectual property, taxation, public procurement, health and safety, and more.

The author takes each discipline as a standalone chapter, but taken as a whole, demonstrates the full and daily impact of EU law. He does so with authority, lucidly describing the treaty base before moving to consider secondary EU legal instruments such as directives, concluding with implementation in the UK.

O’Neill anchors his belief that EU law needs to be read “in a manner which is informed by fundamental rights” by referencing each area of practice to the relevant provision of the Charter of Fundamental Rights. This is a compelling text and at this price is worthy of being in all practices.

David J Dickson, solicitor advocate

EU Justice and Home Affairs Law

Charter compatibility as interpretative aid and/or a condition of legal validity?

Aidan O’Neill QC

As I have noted in previous posts, since the coming into force of the Lisbon Treaty provisions according the Charter of Fundamental Rights of the European Union (“CFR”)  with “the same legal value as the Treaties” (Article 6 TEU), the CJEU now, as a matter of course, refers to provisions of the Charter in its judgments. There have already been over 300 references to the Charter in the decisions of the CJEU (including those of General Court and the Civil Service Tribunal).

One developing issue in the court’s more recent Charter jurisprudence is the manner in which the Charter is being used as an interpretative aid to other provisions of EU law.

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How the CJEU uses the Charter of Fundamental Rights

Aidan O’Neill QC

In the second of two blog posts, Aidan O’Neill QC considers the growing body of case law regarding the CJEU’s use of the Charter of Fundamental Rights.

No standing for Consumer Associations to challenge merger clearance decisions by the Commission

In Case T‑224/10 Association belge des consommateurs test-achats ASBLv Commission supported by Électricité de France (EDF) 12 October [2011] ECR II-nyr the General Court yet again rejected a challenge to its restrictive standing rules, this time brought by a consumer association who sought to challenge on behalf of consumers a clearance decision of the Commission allowing a merger between two undertakings to take place.  The Court rejected the consumer association’s argument that the Treaty and Charter provisions (Article 38 CFR), which require consumer-protection considerations to be taken into account in defining and implementing other EU policies and activities and for those EU policies to ensure a high level of consumer protection, meant that it should be recognised to have sufficient interest in a merger on behalf of consumers affected by it. Instead the Court stuck to its narrow definition of standing in the usual terms:

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How the CJEU uses the Charter of Fundamental Rights

Aidan O’Neill QC

In the first of two blog posts, Aidan O’Neill QC considers the growing body of case law regarding the CJEU’s use of the Charter of Fundamental Rights.


Since the coming into force of the Lisbon Treaty provisions according the Charter of Fundamental Rights of the European Union (“CFR”)  with “the same legal value as the Treaties” (Article 6 TEU), the CJEU now, as a matter of course, refers to provisions of the Charter in its judgments.  A recent search of the CURIA database reveals that the Charter of Fundamental Rights has been referred to in Judgments of the Court of Justice and of the General Court in over 250 cases.  This does not take into account the times when the Charter has been referred to and relied upon in Opinions of the Advocates General or in decisions of the EU’s Civil Service Employment Tribunal.

It is clear therefore that any understanding of the intent and effect of EU law has now to be done against a background of an understanding of the terms of the EU Charter of Fundamental Rights, as interpreted by the CJEU.

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