Scotland and the European Union

This speech was published under the 2010 to 2015 Conservative and Liberal Democrat coalition government

Unfortunately Lord Wallace was unable to attend the conference and his prepared speech was included in the conference papers.

It was with much regret that I had to advise the conference organisers that I would be unable to be with you this afternoon, owing to my attendance at a funeral in Orkney. Having already done some preparation for my address, I agreed that I would submit this to be included with the conference papers.

I certainly would have wanted to thank Scottish Public Law Group for again inviting me to speak to this annual gathering. I know from attendance at past SPLG conferences that it is a fantastic opportunity for all of us who work and practice in public law in Scotland to gather and discuss some of the many topics of common interest. With every passing year issues of public law seem to be growing in importance and profile, and I’m sure today’s conference will have been another great success.

Last year, I addressed the conference on constitutional issues, in particular on the strengths of our devolution settlement, and this year I am asked to speak about Scotland and the European Union. Now of course the question of an independent Scotland’s membership of the European Union has generated a great deal of discussion and debate in recent months. I have done what I can to facilitate that debate, but like Sir David it is not my intention to go over that ground again today in any detail. The UK Government’s position is set out fully in the first of our Scotland Analysis papers – “Devolution and the Implications of Scottish Independence”. In brief, the Government’s position is that an independent Scotland, as a new State, would not automatically be part of the European Union on separation from the UK. This is not to say that an independent Scotland could not or would not become an EU Member State, but membership and, crucially, the terms of membership, would have to be negotiated. Nobody can say for certain what the result of those negotiations would be. As one of the members of my legal forum said when we met in November, all that is certain is uncertainty.

Today, rather than debating the uncertain, I want to focus on some of the benefits that we as lawyers, and indeed citizens, in Scotland, currently draw from the UK’s membership of the European Union. There are, in my contention, many such benefits, and today I wish to highlight just one or two – but one or two which are absolutely fundamental in character.

My starting point is to refer you not to a European case, but to a domestic judgment. Our domestic courts frequently make it clear that it is the rule of law which underpins many of the rights and freedoms we enjoy in this country, and that we should not underestimate its importance. When I was preparing to appear before the Supreme Court in the Imperial Tobacco case last year, I was reminded that one such statement was cited by Lord Reed when he gave judgment in the Inner House. Lord Reed quoted Lord Bridge of Harwich in the Morgan-Grampian case (from 1991). He said:

“The maintenance of the rule of law is in every way as important in a free society as the democratic franchise.”

I expect that is not a statement which will cause anyone in this room surprise because in the jurisdictions of the United Kingdom the fundamental importance of the rule of law is recognised by public lawyers almost implicitly. However, I’m not sure that we are always as quick to recognise the role that the European Union legal system plays in promoting the rule of law and ensuring its observance. EU law offers a level of supranational protection for the rule of law which is unique amongst international organisations. That protection is enshrined, for example, in the EU Charter of Fundamental Rights, which reaffirms among other things the right to liberty and security (Article 6), the right to equality before the law (Article 20), the right to Petition (Article 40) and the right to an effective remedy and to a fair trial (Article 47). This means that you and I can go to Luxembourg and demand that the EU institutions are held to account for their actions. We can also ask our domestic courts to enforce our EU law rights and, if necessary, to refer a question to the court for clarification before ruling on a question of EU law.

And the rule of law has been a fundamental concept within the EU legal framework since long before the Charter of Fundamental Rights came into being. Many of you will know of Lord Mackenzie-Stuart, who began his distinguished career as an advocate at the Scottish bar and went on to become the first British Judge to be appointed to the European Court of Justice, serving as President of the Court from 1984 to 1988. I’m sure, were he with us today, he would be a supporter of this conference. Writing in 1977 in his book The European Communities and the Rule of Law, he had this to say:

“The European Communities are […] based upon legal order—the Community rule of law. While the objects of the Communities and the means of achieving them were and are a matter of political choice and agreement, Community law is there to ensure that the consequent obligations are fulfilled, and that rights are safeguarded according to accepted and acceptable principles. These rights and obligations concern not only Member States and the Community Institutions, but commercial undertakings and individual citizens. It is this feature which distinguishes the Communities from all other international associations.”

My own recent experience in Luxembourg has borne out the importance accorded to the rule of law within the European system. In October last year I appeared before the Grand Chamber of the European Court of Justice in the second Kadi appeal. Many of you will be familiar with the case. I will resist the temptation to discuss the fascinating legal issues which arose and which have been debated at length since the European Union adopted a Council Regulation implementing Member States’ UN sanctions obligations in respect of counter-terrorism. However, I do think that the Kadi cases serve as a good reminder of how central the rule of law is in EU jurisprudence and that chimes with the sentiment expressed by Lord Mackenzie-Stuart. So it is clear to me that the importance of the rule of law is a value which is common to both the European Union and the jurisdictions of the United Kingdom. Its protection is enhanced by EU law.

I should also say that the EU approach does not, in my contention, ride roughshod over the underlying domestic approach. The Court of Justice can provide a supervisory role but there is built-in to the system a means to ensure respect for national measures. For evidence of this we need look no further than one of the most high profile Scottish public law cases of the last twelve months, the Scotch Whisky Association’s judicial review challenge to the Alcohol (Minimum Pricing) (Scotland) Act 2012. In his judgment Lord Doherty explored the role of national courts vis-a-vis the ECJ. He said this:

“When the Court of Justice reviews national measures for compatibility with EU law its role is not that of primary fact finder. Its role is a supervisory one. The crucial question is whether there is objective justification for the measures which are under attack. The fact that there may be controversy, and that the evidence may not be all one way, does not preclude the conclusion that the necessary justification is present. The Court affords a measure of respect - a margin of appreciation - to the decisions of national authorities”

And it is not only the protection of the rule of law that is enhanced by the European legal system. You may also be aware that Member States made a binding commitment on 1 December 2009 to ensure that the EU accedes to the European Convention on Human Rights. This will mean that the EU and its institutions are directly bound by the European Convention so that individuals will be able to bring proceedings directly against the EU in the European Court of Human Rights. Article 6 of the Treaty of the European Union also incorporates the terms of the ECHR as “general principles of the Union’s law”. That has been the case since the Maastricht Treaty came into force in 1993.

The details of how accession will take place have been under negotiation for some time. In Strasbourg in April, the European Union and the Council of Europe agreed at negotiator level the text of the Accession Agreement, which adapts the ECHR for the European Union as a non-state party. It will be a long and arduous process, which will require the agreement of 47 individual states, 27 of which are members of both the European Union and the Council of Europe, and 20 of which are members only of the Council of Europe. But the commitment amongst EU Member States to do so is a testament to the importance of the rule of law and the protection of individual rights and freedoms at the EU level.

The UK Government recognises that accession is a binding Treaty obligation and is engaging with the process thoroughly to ensure that it is properly workable and that we get the details right.

I have focussed primarily on the benefits that we, as individuals, currently draw from the UK’s membership of the European Union, but there are also broader benefits which are worthy of mention. The UK has been a strong proponent of the rule of law and fundamental rights in the EU and internationally. For example, successive UK administrations have sustained support for the development of more effective rule of law conditionality in the context of EU enlargement. When engaging with candidate countries the UK has always taken the opportunity to share our experience to assist with making the rule of law effective in practice.

There are clear links between respect for fundamental rights, the rule of law and economic growth in the European Union. The relative legal certainty implicit in countries or international institutions bound by the rule of law underpins trade and commerce within and between nations. The international market in legal services is in itself very valuable to the UK but also underpins economic growth and stability in other sectors, at home, in the EU and throughout the world. The delivery of effective legal services which support wider stability by fostering the rule of law internationally for the benefit of business and individuals is at the heart of the recently launched plan “UK Legal Services on the International Stage: Underpinning growth and stability” to which I am a signatory.

I began with reference to a House of Lords dictum emphasising the importance of the rule of law to democracy, and I have set out why I believe the European Union legal system helps provide it with enhanced protection. But of course, the rule of law is also, by definition, important to lawyers, and lawyers are important in turn in ensuring its promotion and protection. And so I wholly agree with Sir David that it is crucial that we, as Scots lawyers, properly engage with EU law. By doing so we not only ensure proper discharge of our own professional duties, we also help to ensure we extract the full benefit of our membership of the European Union.