An Independent Scotland:The Road to Membership of the European Union

•This paper addresses the road to membership of the European Union for an independent Scotland. • The UK Government and Scottish Government each undertook in the Edinburgh Agreement of 15 October 2012 to respect the result of the referendum of 18 September and to work in the interests of the people of Scotland and the United Kingdom. In light of this, and of widespread agreement that it would be in the interests of the people of the UK to see an independent Scotland admitted to the European Union, it is likely that both governments will, in the event of a Yes vote, work to facilitate Scotland’s membership of the European Union. • There are strong reasons to believe that following a Yes vote the European Union would also be prepared to open negotiations aimed at securing the membership of an independent Scotland. Scotland is already part of a Member State, its residents are European citizens, the writ of European law already runs in Scotland and its territorial location is of importance to the European Union for strategic and resource-based reasons. • In the event of a Yes vote we anticipate that tripartite negotiations will be established involving the Scottish Government, the UK Government and institutions of the European Union, most obviously the European Commission, working towards the accession of Scotland to full membership of the EU and any necessary adjustment of the UK’s level of representation within European institutions. It is likely that in this period preparatory drafting of a formal accession treaty will take place. • It is highly likely that the United Kingdom will continue in membership of the European Union and that Scotland will require to be admitted as a new member state. Article 48 TEU provides a feasible route by which Scotland’s membership could be realised. It is, however, more likely that Scotland will require to make an application to join the European Union by way of the Article 49 of the Treaty of the European Union procedure and that, accordingly, the unanimous agreement of all Member States to any ratification agreement will be required. • The Scottish Government hopes that Scotland will formally accede to membership of the EU by March 2016. This timetable is ambitious. There will be a number of complex and potentially contentious substantive issues to be negotiated. It is also not possible to predict with certainty how long the ratification process in each Member State might take. • In the event that Scotland’s full membership of the European Union is not achieved by the date of Scottish independence (in particular, pending conclusion of the respective Article 48 or 49 treaty amendment/accession processes) it is likely that the EU will put temporary provisions in place to ensure that the rights and obligations arising from the EU treaties will continue to apply to Scotland in the interim period. This could be done by giving provisional effect to the core aspects of the draft accession treaty until this is finally ratified by all Member States. • In the event of any deadlock in the process of Scotland’s accession to the European Union, the European Union treaties seem to contain an implicit obligation upon the institutions of the EU and the Member States, based upon the principle of European citizenship and the treaties’ fundamental rights provisions, to negotiate towards Scotland’s accession to the EU. There are different grounds of action through which individual citizens could seek to enforce this duty in the Court of Justice of the European Union. There are reasons to believe that the CJEU would intervene to articulate the existence of a duty upon interested parties to negotiate Scotland’s accession to membership in good faith

The Government’s new EVEL timeline still isn’t sufficient to facilitate the necessary debate and deliberation

In the immediate aftermath of Scotland’s vote to remain in the United Kingdom, the Prime Minister David Cameron proposed removing the rights of Scottish MPs to vote on ‘English only’ issues – a process which would be contemporaneous with the granting of new powers for Scotland. Katie Boyle argues that there are at least three main issues with the Government’s recent announcement of the way the change will be introduced, including what counts as a “devolved matter”, the financial overlap between devolved and non-devolved issues, and the break-neck speed of the process through which it was be introduced

Re-conceptualising Socio-economic Rights in Transitional Justice Societies

This article questions whether sufficient attention is given to addressing violations of socioeconomic rights in the transitional justice context. Economic and Social rights (ESR) are rights associated with areas such as health, education, employment and housing. They are binding international legal standards and their protection extends to some of the most vulnerable groups in society. Transitional justice is the discipline examining the mechanisms through which the wrongs of a prior regime can be addressed when a state moves from illiberal regime to liberal democracy. The discourse has focussed increasing attention on socio-economic dimensions of transitional justice without fully grasping the nature or status of socio-economic rights law. This article uses a legal perspective in order to ask whether theories of prioritisation, judicial incrementalism and deliberative democracy will assist in ensuring pre-transition structural inequalities are addressed as part of the transitional justice paradigm and in accordance with international law requirements. It is argued that the emerging approach of addressing socio-economic rights violations through means of reparation may fail to address the structural inequalities associated with the prior regime. This article proposes that new and alternative structures must be imagined if the transitional justice discipline is to adequately address socio-economic violations in an emerging democracy with a view to establishing long term peace

Principles of ESR Adjudication

First paragraph: The book examines the potential models of incorporation (ways of embedding rights into domestic law) for economic and social rights (ESR) at the national and devolved (subnational) level and the justiciability mechanisms (adjudication by a court) that enable access to effective remedies in court for violations of ESR. In so doing, the book develops principles of ESR adjudication (the building blocks of good practice) and categorises justiciability mechanisms for ESR enforcement at both the national and devolved level

Néillidh Boyle : replacing traditional concepts of storytelling in exploration of the acoustic art

Publisher PD

The Future of Economic, Social and Cultural Rights in Scotland: Prospects for Meaningful Enforcement

First paragraph: The area of economic, social and cultural (ESC) rights law is often misunderstood and under-utilised in the public law domain across the UK’s legal jurisdictions. Whilst public law engages with ESC rights across areas such as health, social care, education, social security, housing and social services it does not traditionally embrace broader conceptual frameworks that encompass the full international human rights framework. When socio-economic rights are addressed in the public law sphere they tend to feature under the aegis of something else. In other words, our discourse around social rights is dominated by existing domestic human rights structures and our existing domestic human rights structures marginalise social rights to the side lines – such as forming aspects of civil and political rights, or featuring as part of formal equality. This pre-disposition is to be expected. Why would public law lawyers concern themselves with the full breadth of economic, social and cultural rights if the domestic system has not incorporated them? Why would they seek to invoke international instruments in court to be told that they hold no force unless incorporated into domestic law

Models of Incorporation and Justiciability for Economic, Social and Cultural Rights

First paragraph: The incorporation of international law into domestic law means embedding legal standards as set out in international law and making them enforceable at the domestic level. This incorporation can take many different forms. This paper seeks to set out some of the ways through which Scotland could incorporate economic, social and cultural (ESC) rights into the domestic legal framework. Traditionally incorporation has been understood as a way of directly embedding international law into the domestic legal system through domestic legislation or in a constitutional text. This paper embraces a much broader and fuller understanding of incorporation essentially encapsulating a variety of means through which international legal standards are internalised into the domestic legal system and coupled with effective remedies. The paper therefore looks at models of incorporation as well as justiciability mechanisms (how rights can be enforced in court)

Chapter 1 Principles of ESR Adjudication

The book examines the potential models of incorporation (ways of embedding rights into domestic law) for economic and social rights (ESR) at the national and devolved level and the justiciability mechanisms (adjudication by a court) that enable access to effective remedies in court for violations of ESR. In so doing the book develops principles of ESR adjudication (the building blocks of good practice) and categorises justiciability mechanisms for ESR enforcement at both the national and devolved level

The Complexities of Human Rights and Constitutional Reform in the United Kingdom; Brexit and a Delayed Bill of Rights: Informing (on) the Process

The United Kingdom’s politicised and contested human rights framework has come under increasing pressure during recent periods of constitutional and political instability. The UK 2016 referendum on membership of the European Union, the delayed repeal of the Human Rights Act 1998 and the proposals to enact a British Bill of Rights have all shaped the discourse at the national level around decisions to retain rights (or not) rather than progressively improve the human rights structure. The European Union and Council of Europe human rights frameworks act as important pillars of human rights and democracy under the UK constitution and each of the devolved constitutions. Constitutional processes such as Brexit risk further confusing an already incoherent and complex human rights framework. This lack of clarity in terms of the future of the human rights regime in the UK and devolved regions has meant that there has been a lack of constitutional safeguards in place to protect human rights and thus far insufficient parliamentary scrutiny. The impact at the supra-national level undermines the UK as a global actor and the impact at the devolved sub-national level is further fragmenting state unity where devolved jurisdictions are on different, and often more progressive, human rights trajectories. The UK is in the process of sleepwalking into a legal human rights deficit. We argue here that this lacunae in legal protections offers, if not necessitates, the opportunity to re-imagine human rights structures in a progressive way embedded in processes that must be genuinely deliberative, informed, participative and inclusive

Incorporating patient preferences in the management of multiple long-term conditions: is this a role for clinical practice guidelines?

Background: Clinical practice guidelines provide an evidence-based approach to managing single chronic conditions, but their applicability to multiple conditions has been actively debated. Incorporating patient-preference recommendations and involving consumers in guideline development may enhance their applicability, but further understanding is needed. Objectives: To assess guidelines that include recommendations for comorbid conditions to determine the extent to which they incorporate patient-preference recommendations; use consumer-engagement processes during development, and, if so, whether these processes produce more patient-preference recommendations; and meet standard quality criteria, particularly in relation to stakeholder involvement. Design: A review of Australian guidelines published from 2006 to 2014 that incorporated recommendations for managing comorbid conditions in primary care. Document analysis of guidelines examined the presence of patient-preference recommendations and the consumer-engagement processes used. The Appraisal of Guidelines for Research and Evaluation instrument was used to assess guideline quality. Results: Thirteen guidelines were reviewed. Twelve included at least one core patient-preference recommendation. Ten used consumer-engagement processes, including participation in development groups (seven guidelines) and reviewing drafts (ten guidelines). More extensive consumer engagement was generally linked to greater incorporation of patient-preference recommendations. Overall quality of guidelines was mixed, particularly in relation to stakeholder involvement. Conclusions: Guidelines do incorporate some patient-preference recommendations, but more explicit acknowledgement is required. Consumer-engagement processes used during guideline development have the potential to assist in identifying patient preferences, but further research is needed. Clarification of the consumer role and investment in consumer training may strengthen these processes.Journal of Comorbidity 2015;5(1):122–13