 Rwy'n meddwl, wrth gwrs, ac rwy'n meddwl i'r ysgrifennu Lord MacKenzie-Stewart. Rwy'n meddwl i'r ysgrifennu, rwy'n meddwl i'r ysgrifennu Lord MacKenzie-Stewart, rwy'n meddwl i'r ysgrifennu Lord MacKenzie-Stewart, i'r ysgrifennu Lord MacKenzie-Stewart yr Euriau기는 Dŵr. Rwy'n meddwl i'r ysgrifennu Lord MacKenzie-Stewart yr Euriau Cyfnodyddol. i wneud y Unedig, ond mae'n gweithio'r weldwyr yn hynny o'r cyfrifio cyflwyngau cyflwyngau cyflwyngau cyflwyngau cyfrifio'r gwir. A wedi John Pierre Warner, y Prifysg Wyrdegyfriddor, mae'n dod ei fawr o'r fawr o'r cyfrifio cyfrifio, a yn gweithio'r fawr o'r cyfrifio ac mae'n dweud fod yn gweithio'r fawr o'r cyfrifio'r fawr o'r cyfrifio'u gwir. Llywodraeth, lle mae MacKenzie Stewart yn yr unigad yn gweithio'r Caught i 1984, yn yr unigad yn gweithio'r Caught i 1988. A oedd yn unigad, Llywodraeth Cymru yn y Lloch Bruunau, mae'r cwrthau erbyn ystod gyda'r Caught i Yngrifesol yn cynnwys ar fy ffordd yr unigad cyfnod o'i gweithio'r Caught i Europea cerddur, nid oherwydd yw ei gwaith gwrthau'n gweithio, ond o'r gwybwyllnig o'r ddwych yn ymgyrchol ymgyrchol a'r cyfnod o'r Gweithlodau Llyfrgellau Llyfrgellau a'r Gweithlodau Llyfrgellau Llyfrgellau. Rwy'n du'n dod i'r gweithlodd ymlaen i'r enghraeg a fydd yna'r awl iawn o'r hunain brygau'r gweithlodau ar y warfynol, a dyna'n ymwneud am y brydgrifedd yng Nghymru, y brydgrifedd yw ymwneud am gyfnod ymlaen i'r ymddangos y brydgrifedd yng nghymru, a'r brydgrifedd yng nghymru yng nghymru i'r Unedol yn Yurech a'r ymddangos mewn ddefnyddol i gyd yn ymddangos i'r ffamiliaid. Mae'n ffrens. Fy fyddaf yn fawr i ddim yn wneud i'w llwydd ymddangos i'r bwyllt, Felly, Judy Mackenzie Stewart, Amanda Hay and Mariana Hay, as representatives of the family. Were he here, we would also like to welcome James Weber, representative of Sherman and Sterling, or generous enough to sponsor the lecture, and I was looking forward to saying to him, we look forward to eating the dinner you're paying for tonight, and unfortunately he's had to pull out so I can't say that. Distinguished speaker tonight is Judge Nicholas Forward. He is a Cambridge man, and like Mackenzie Stewart, he started his time as an engineer, reading the fast track engineering course, and then changing to law. With a view to going to the bar which he did in 1970, he practised in the bar in London between 1971 and 1979, and then in Brussels in the Brussels part of Brick Court chambers from 1979 to 1999 with many other highly distinguished people, including Jonathan Sumption, who was here earlier in the week telling us how we're wasting our time running law schools as the faculty members who were present at his lecture will remember. Nicholas Forward was a QC in 1987 and was made a judge of the Court of First Instance as it was then called, and the General Court as it's now called in 1999, where he's been since. He's a bencher of the Middle Temple and among many other distinguished positions he's a member of the governing body of the World Trade Organization, and I also believe he's a member of the Irish bar, but I'm not quite sure why he did that. Maybe he'll tell us over dinner. He's part of the Cambridge Three, the three key people in the court system at Luxembourg, the judge of the Court and the judge of the General Court, and the advocate general are all Cambridge people, I'm proud to say, and none of the three are we more proud than Nicholas. He's been a good friend to Cambridge for many years and a good friend to cells, and he's also a personal friend of mine, and his wife is a personal friend since undergraduate days of my wife, so it's a great personal as well as a professional pleasure to welcome here tonight, Nicholas Obertine. Thank you very much. One of the disadvantages of being introduced for a lecture by someone who I have known or to the point who has known me for as long as John has, is that you are waiting there in trepidation to hear what he's going to say. I think by and large I've got away quite lightly. I'm immensely pleased to be able to give this lecture today. I little thought when I was doing the part two law tripos, trying as far as I could to qualify for the bar exams as quickly as possible, that anything like this could happen to me. At that stage we weren't even members of the European economic community. European law figured nowhere, as I recall it, either in the undergraduate or let alone I think even the master's courses available at that time, and Europe was a long way away and a distant dream. The theme of my lecture tonight, or in a bit the subtitle that I've given, it is Interesting Times, Chinese Curses, Lawyers' Headaches, Political Nightmares and New Dawns. These are, on any view, interesting times. Not perhaps one hopes in the sense of the mythical Chinese curse may you live in interesting times. I say mythical because of course like any sound lawyer I've done my research on Google, from whence I find that apparently Chinese scholars have not been able to find any Chinese expression that corresponds to it. The origin appears to have been the British ambassador in China in 1936 and 1937 reporting back to the then prime minister in some correspondence. Given that that was just about the time of the Japanese invasion of China, it's clear the sort of interesting times that he had in mind. Of course it's not in that sense that the times are interesting, but rather as I will be talking about in the course of my talk this evening, in the sense of wholly unprecedented situations which, while they present particular interest to lawyers, and possibly even nightmares for certain politicians, could lead to a new dawn for the United Kingdom, both possibly internally or I might even say existentially, and perhaps as the theme of my talk this evening in its relation with Europe. We now have of course the prospect in the UK over the coming few years of an unprecedented series of events of an undeniably constitutional later nature. That I think is the only adjective that can properly be used, even in the absence of a written UK constitution, to describe some of the changes which, if affected, may fundamentally affect the rights and freedoms of all UK citizens and indeed UK residents of all nationalities. Indeed they could even put in issue the continued existence of the United Kingdom in its own right and as a member state of the EU. Each of these events differs in its political origins and legal framework. They share, however, a number of common features. The three events which I have in mind are of course, firstly the decision whether to exercise the option created by the previous Labour government and now contained in protocol 36 to the Treaty of the Functioning of the European Union of opting out of up to 136 measures in the field of police cooperation and judicial cooperation in criminal matters, to which the United Kingdom has already once opted in when these measures were adopted. Any such opt out decision is to be taken and communicated by the council by 1 June 2014. The second event, and it is arguably ascending importance, is the referendum on Scottish independence scheduled for the second half of next year and the third of course the promised referendum in late 2017 for the whole of the United Kingdom, however it may then be constituted on the issue of whether or not the UK should remain in the European Union. I will leave aside for this evening at least such relatively minor matters as the European parliamentary elections in May 2014, the general election of 2015 and any further referendum that may be required under the European Union Act in the event of further treaty revisions. When I was first asked to give this lecture, I was pressed to give the organisers a title. A title of course implies a subject and if anyone who knows me well enough I tend to leave these things to the last minute but as the shape of my talk this evening became clearer a slightly racier subtitle possibly emerged in the form of the words of the hokey-cokey song in out shake it all about. Certainly whatever else may be achieved there is likely to be a shake-up of Britain's attitude to Europe even if it remains to be seen how far the Prime Minister will also achieve his stated objective of a shake-up of Europe itself. In passing in that connection it must be said that there are already some encouraging signs not merely the various expressions from different countries both within and without the European Union but as an example only last week the German president called on the United Kingdom to remain within the EU and is even at least in some reports supposed to have called for English to become the sole working language for the EU institutions. Whether that will convince all member states with quite the same power remains to be seen. But let us now return to the UK what do these three events have in common? The first common feature as I see it is that the outcome of each of these events may depend in no small part on the outcome of the negotiations with other parties that may take place between now and the moment when the decision has to be taken which could improve the present status quo and that certainly is the Prime Minister's stated intention in his speech last month when he announced his intention of getting changes to the EU that would enable him to recommend staying within the Union. Perhaps no less important in all these three cases is the common element of there being considerable room for an improved understanding by those who will take the decision as to the true realities of the present situation. In all three cases, at least until recently the case for the status quo had barely been put. What public discussion there had been was largely driven by those pressing for change. Sometimes inevitably it has been said but on the basis of a false or at least misleading or incomplete prospectus. Only recently has that begun to change and improved understanding of the realities of the present position coupled with the possibility of further improvements in the status quo can only increase the chances that the decision in each case may be to stay in rather than to opt out. There will of course be some decision makers whether parliamentarians and members of government in the case of the protocol 36 opt out or Scottish or UK voters in the case of the two referenda whose views are already so certain and unshakable that nothing said between now and then may change their minds. But there will be more, at least we must hope there may be more, whose minds will remain open to clear facts and well presented arguments. This of course presents a particular challenge and need an opportunity for lawyers not just to take part in but to inform the debate. I would particularly therefore like this evening to pay tribute to the efforts of those not least Professor John Spencer and his fellow members of the opt out law CAMAC-UK group who have worked so hard to clarify the legal issues arising in the context of the proposed collective opt out under protocol 36. I would add here that I've never really understood quite why so much importance has been attached and he was attached to negotiating the opt out in 2007. The United Kingdom has always had the possibility of opting in to EU legislation under the own third pillar or choosing not to do so. A good example perhaps of how the EU has been able to accommodate a degree of variable geometry within its structure and that possibility continued after Amsterdam in relation to police cooperation and judicial cooperation in criminal matters, the sort of slim down third pillar generally now known by the acronym PJCCM. The 136 measures covered by the opt out are all measures that, as I said earlier, the United Kingdom after careful consideration at the time chose to opt in to. However, once the United Kingdom did choose to opt in to a particular measure, it didn't then have an unrestricted right to choose and apply its own meaning of that measure. Even though the United Kingdom chose not to allow its national courts to make preliminary rulings on questions as to the interpretation of these measures, that did not mean that the Court of Justice had no jurisdiction or competence to interpret them. First, of course, it could do so when a question was referred by a court of one or other member state, most of whom in fact had opted in to this procedural mechanism. Any ruling by the Court of Justice on a criminal justice measure could therefore clearly not be disregarded by the UK courts when coming to apply the related UK matter. Secondly, the UK was not excluded from the other procedures in article 35 of the old EU treaty. It could itself bring proceedings to a now any PJCCM measure that it considered was wrongly adopted, even if the UK itself had not opted into it. And it could even be brought before the Court as a result of a dispute with another member state as to the interpretation or application of a PJCCM measure. In short, therefore, the jurisdictional lockdown that the UK had for PJCCM matters didn't preclude the Court from ruling on such matters, nor did it prevent the UK courts from being effectively bound by such rulings when given. Ironically, all it did and does do was to prevent UK courts from taking part through the preliminary ruling mechanism in the real cooperation that exists between the Court of Justice and national courts. The need for increased clarity and better information on the status quo has now also been recognised in relation to the debate on Scottish independence. The government is, in my view, to be congratulated for having published earlier this month the first in what is promised to be a series of papers in the Scotland Analysis Programme, the first paper being entitled Devolution and the Implications of Scottish Independence. This paper, together with the joint opinion from professors James Crawford and Alan Boyle, examines in considerable detail some of the issues raised by Scottish independence both from the perspective of public international law and of particular importance this evening that of Scotland's continued membership of the EU. I will come back later, both to the paper and to the opinion. The second common feature of my three events, which in some ways is the counterpart of the first, is that in each case there will nevertheless remain important uncertainties as to the consequences if the decision to opt out is taken. This is because in each case the choice to be made will in essence be a choice between an existing situation, the benefits and disadvantages of which should be reasonably capable of being assessed and discussed and indeed the situation itself possibly improved and an entirely new and uncertain situation. This consideration even applies though perhaps less powerfully in relation to the protocol 36 opt out. No doubt between now and the 1st of June 2014 some of the 136 provisions under the old third pillar may be amended. I think some already have been and if amended they are no longer covered by the opt out and the UK simply has to decide whether to opt into the measure as amended and if it does the court of justice will be able to rule on preliminary ruling requests from British courts as it does with the courts from any other member state. But for the remainder the opt out if exercised will have to be for all the unamended pre Lisbon measures still in force. The UK has announced that it is considering the possibility of opting out of all the measures but then seeking to opt individually back into them. It is however faced with the difficulty and the difficulty is this. The difficulty is that at the moment that the decision to exercise the collective opt out has to be taken that's to say shortly before the 1st of June 2014 the UK will have no certainty that it will be able to opt back in or indeed as to the terms on which they will be able to do so remembering that the opt ins might be in relation to them and would probably be in relation to certain individual measures. You will find an enlightening analysis of these problems in the pollucid analysis of David Anderson QC the independent reviewer of terrorism legislation in his evidence to the House of Lords select committee where he refers to European commissioner Maumsbrom as saying on each of these opt ins there will have to be a negotiation and that of these 136 laws many are very connected. The UK could therefore be pressured he suggests to rejoin some measures it disagreed with in order to retain those that it considers valuable and particularly in the case of Schengen measures the requirement of unanimous consent by the member states may result in some member states seeking to impose conditions as the price for their consent. A similar situation applies to the two referenda on Scottish independence and on continuing UK membership of the European Union. Thus, while the vote for withdrawal may at least in some sense enable the voters of Scotland in 2014 or the UK in 2017 to feel in the words of the poet W.E. Henley that they are the captains of their souls they will unfortunately in no way be masters of their fate. For in both cases exercising the option to leave will trigger an uncertain process the results of which though vital for their future economic prosperity may be highly unpredictable not least because they may significantly be dependent on negotiations with a larger and much more economically powerful counterparty that will take place only after the decision has been taken. If that counterparty is moreover opposed to the divorce it will have had no incentive whatever to clarify the desired terms of the divorce settlement in advance of the decision to split nor having failed to prevent the split would it thereafter have any incentive to make the financial and economic consequences any more favourable to the departing party than their own self-interest would dictate? Europe may well do favours between now and the referendum to keep the UK in but it is unlikely to do so if despite their efforts the UK decides to leave. This practical impossibility of pre-negotiation on opt-out terms is in the case of Scotland well illustrated in the first analysis paper there in relation to the purely internal situation that will arise in relation to the relationships between Scotland and the rest of the United Kingdom the first paper says the following both governments agree that there can be no pre-negotiations on what the terms of independence might be before the referendum takes place for the United Kingdom government's part this is because of a profoundly important principle arising from the fact that the UK government is one of Scotland's two governments UK government ministers represent the whole of the UK including Scotland and serve the interests of all of its citizens as such the UK government has the responsibility in many areas later on they say until the outcome neither the UK government nor the Scottish government has a mandate to carry out these negotiations for the UK government it would mean abrogating its responsibilities as part of the government of Scotland and for the Scottish government it would mean assuming positions on reserved matters that are the responsibility of the UK government without any mandate to do so as the Secretary of State for Scotland has said it is for that reason that the UK government cannot in good faith plan for or hold negotiations before the referendum to do so would start unpicking the fabric of the United Kingdom before people in Scotland had exercised their democratic right to choose whether to remain part of it or not in other words there will not and even cannot be any pre-negotiations that could provide assurances as to the terms of a divorce settlement between Scotland and the rest of the UK would be voters for whom these terms might be important will therefore have to rely on blind faith that said the paper at least does provide some assurances at 0.230 it is stressed that the negotiations when undertaken that's to say after a no vote or leave the UK vote would be entered into in good faith with a view to giving effect to the expressed wish of the people of Scotland but as it also explains the process would be extremely complex would take a long time both domestically and in the present context in relation to Scotland's position in relation to the EU and it is this last aspect which I now wish to address I don't know how legible that is but it fitted all on one seat 10 years ago in the convention on a European constitution for Europe relatively little attention was paid to the detail of the wording of what has now become article 50 of the Treaty on European Union for many the inclusion of a formal mechanism enabling a member state to exit the European Union was no more than a sensible tidying up exercise doing little more than providing a pre-agreed framework for an exit route the existence of which was arguably implicit already under public international law it was thought unlikely ever to be needed indeed at that time member states were queuing up to join or would be member states were queuing up to join Jean-Victor Louis has explained the motive as being largely that of satisfying Eurosceptics or at least to use his words souveraniste Magisgar Distan explained that there can be no marriage without the possibility of divorce and that's a typically French idea and Professor Alan Dashwood unfortunately not here this evening otherwise I would have been very interested to hear any observations that he said having been part of the UK team in the convention may be better placed than I to tell the full story but the incorporation of an explicit exit procedure provided at least further confirmation that whatever the ever closer union invoked in successive EC Treaty recitals since 1957 may lead to it is a union that necessarily presupposes the continued existence of member states agreeing together to share their sovereignty within pre-aggrade limits for common purposes and for their mutual benefit Article 50 which you see up there of course only at least possibly on its face would appear to deal expressly with the situation of when a member state as a whole wishes to leave the European Union but I believe that careful consideration of that case of total departure also provides valuable guidance as to what should happen when part of a member state seeks its independence let me however deal first with the situation of total withdrawal at the political level the article 50 procedure suffers from the same basic problem as that for Scottish independence when the Scottish vote is taken it will, as I've suggested earlier have little idea of what independence may involve in particular what would be the terms of the divorce settlement what would happen to the armed forces what would happen to the national debt what would happen to currency and so on but in one important respect the situation in relation to leaving the EU as the UK leaving the EU may be even worse a Scottish vote for independence might well be and has been expressed to be politically binding but it will not be legally binding it will always be possible for the voters in Scotland once the negotiated terms have become clear to change their minds once they see the terms of the settlement and before the final legal steps to create an independent state are taken the situation under article 50 however may be rather different reading the provisions there article paragraph 1 any member state may decide to withdraw from the union in accordance with its own constitutional requirements to a member state which decides to withdraw shall notify the council of its intention in the light of the guidelines provided by the council the union shall negotiate and conclude an agreement with that state setting up the arrangements for its withdrawal taking account of the framework for its future relationship with the union that agreement shall be negotiated in accordance with 218.3 and concluded on behalf of the union by the council acting by a qualified majority after obtaining the consent this is the key point the treaties shall cease to apply to the state in question from the date into entry into force of the withdrawal agreement assuming that there is one or failing that two years after the notification referred to in paragraph 2 unless the European council in agreement with the member state is concerned unanimously decides to extend this period and then there are provisions about the voting some authors notably Jean Victor Louis consider that once a state gives notice the process is irrevocable this follows inter alia from the two-year guillotine clause which in the absence of an agreement will automatically bring to an end the application of the treaties in the withdrawing state in other words once the train leaves the station it is stopping it there may be the possibility of changing the route by adding terms and laying down the conditions for withdrawal but the next station will be outside the EU let me then now turn for the implications of this in relation to Scottish independence the joint opinion from professors James Crawford and Alan Boyle conclude and I hardly do it justice in this brief summary that Scottish independence would create a new state distinct in international law from the rest of the United Kingdom sometimes referred to as RUK or RUCK I'll try RUK and then RUCK sounds a bit rugby like the RUK word in all probability have the status of continuator state of the former UK and this would mean that as a general rule RUK would replace the former UK for the purposes of the thousands of treaties and international agreements to which the UK is currently party and in particular those involving membership of international organisations Scotland by contrast although it could be regarded as a successor state to the former UK and the professors emphasised that continuator and successor very different concepts in international law would have to negotiate its own accession to all these organisations multilateral treaties and agreements and in respect to bilateral agreements would have to negotiate new agreements no doubt that process would be made easier in many respects by reason of Scotland's present de facto participation in those arrangements as being part of the United Kingdom whether or not the outcome of such negotiations would simply be the accession of Scotland on the same or similar terms of the former UK in some cases perhaps not so clear many of these agreements particularly those involving financial obligations towards the operating and other costs of international organisations such as the World Bank and IMF would need specific negotiation probably in parallel or possibly in parallel with a mirror image renegotiation of the equivalent terms by and in relation to the rest of the United Kingdom it is therefore understandable that the Scotland analysis paper proposes that and I quote future Scotland analysis papers in the series will examine the UK's membership of key international organisations in further depth that no doubt will be a fruitful source of debate for possible other seminars but so far as the EU is concerned Professors Crawford and Boyle looking greater detail at the legal position they consider first the position of the RUK and conclude that on the assumption that RUK would be regarded as the continuator state of the former UK Scottish independence would probably not give rise to automatic termination of the UK's membership of the Union and in reaching this conclusion they cite the examples of Algeria's independence in 1962 from Metropolitan France and Greenland's withdrawal from the EEC in 1985 whilst however still remaining an autonomous country under the Danish crown they also point to the detailed provisions for withdrawal of a member state in article 50 TEU in particular they pointed to the requirement that before any withdrawal takes effect there should be detailed negotiations on the consequences withdrawal both for the departing state and for the rest of the EU and they therefore conclude that automatic withdrawal would be inconsistent with the spirit if not also the letter of article 50 this last conclusion must in my view clearly be correct before Lisbon the treaties contained no provision for a member state to leave the Union and there were the two only the two instances of Algeria in Greenland but what has changed since then however is not just the introduction of article 50 TEU but the degree of integration of the European Union at every level economic, monetary social and political the internal market is now a reality indeed it's 21 years old this year millions of EU citizens have exercised their rights to move from their home countries to other member states to work, to live to raise families to retire and die companies have established themselves across the Union setting up subsidiaries, branches and agencies social security rights have become substantially integrated so that now entitlement to health protection employment benefits and old age pensions has become entirely transparent both to the nationality of the recipients and also to the EU states where they may have paid their contributions marketing authorisations in the internal market are given for medicines, chemicals and other products all by a single European agency is it realistic to contemplate for one moment that a safe situation could be allowed to arise whereby from one day to another existing rights and protections could simply disappear or become effectively valueless clearly not moreover many of these interests are essentially bilateral in the sense that the interests of the continuing EU states to ensure effective protection for the social and economic rights of their citizens in the departing state will be mirrored by the desire of the departing state to ensure equivalent protection for its citizens within the territory of the continuing EU Scotland will be as keen to protect its diaspora in the EU as no doubt Poland will be to protect those who moved to Scotland article 50 is therefore I believe a recognition of the inevitable it is now I believe at least politically unthinkable that a state could leave the EU without detailed negotiations to ensure ensure that so far as possible proper account is taken of pre-existing rights and legitimate expectations not only of states but of individuals and not only of EU citizens but also indeed those who benefit indirectly from those who have such rights and therefore I believe it's unthinkable that Scottish independence could be finally implemented without negotiations with the remaining EU states and institutions to resolve these institutions in short the need to ensure a properly negotiated departure of a member state that wishes to leave the EU is crucial to the analysis of what should happen when part of a member state seeks to become independent let me just stay with this point for a moment consider first the situation unlikely perhaps of Scotland seeking independence on the basis that it did not wish to remain part of the EU Professors Crawford and Boyle suggest in their opinion that it would be open to the United Kingdom in principle to change the territorial scope of the EU treaties unilaterally by granting Scotland independence with the result that and I quote the treaties would continue to apply to the reduced territory of the RUK but would on their face cease to apply to an independent Scotland if and I stress the if if that is intended to suggest that there would be no obligation in that situation for the UK to seek to ensure in good faith negotiations with the rest of the EU and to do so before that independence took effect the protection of the pre-existing rights of EU citizens in Scotland and the reciprocal rights of Scots EU in a similar way to that arising under article 50 in the event of a total departure then I must say I would find that hard to accept the need for good faith negotiations would also seem to accord with the answer of President Barroso last year to a question concerning possible Catalan independence when he said and I quote in the hypothetical event of a succession of a part of an EU member state the solution would have to be found and negotiated within the international legal order in short when it comes to the issue of whether or not there is a good faith obligation on the UK in relation to negotiating with the EU the consequences of Scottish independence I find myself very comfortably in the same camp as Sir David Edward but whether such a good faith obligation would be achieved through application of article 50 by an extensive or some might simply say purposeive interpretation of article 50 itself by whether by analogy or merely under the principle that the greater includes the lesser or whether it be through an argument based on the court of justice case law on EU citizenship and on article 20 paragraph 1 of the TFEU as Bob Lane has apparently suggested may ultimately never have to be resolved political imperatives can and should render the legal question moot these same considerations apply a fortiori if seems more likely Scotland wishes to remain part of the EU following agreement for a consensual separation in that situation well I fully accept that the Crawford and Boyle conclusion that Scotland would not succeed automatically to EU membership the obligation on and interests of all parties to negotiate in good faith to bring about a result that ensured the uninterrupted enjoyment of the rights of EU citizens in Scotland and the equivalent rights of Scots and the rest of the EU would seem to be even stronger both Scotland and the rest of the EU would have every reason to achieve that result and the UK relying on its commitment to negotiate arrangements in good faith covering all aspects of the independence would be expected to comply that brings me finally to the issue of the UK's promise referendum in late 2017 it will not have escaped your attention that many of the remarks that are made in the Scotland analysis paper as to the uncertainties and difficulties that may arise if Scotland leaves the UK will apply mutates mutandies to the uncertainties and problems for the UK if it were to decide to leave the EU however in the interests of contributing a little to that debate and in the spirit I mentioned earlier let me make a number of more legal points with some apologies to those in the audience who are not lawyers while the idea of an ever closer union is something that has long horrified your skeptics we should not forget that it was present in the opening words of the 1957 EEC Treaty was there when the UK joined the EEC in 1972 and was repeated at Maastricht Amsterdam, Nice and now Lisbon and as to whether that union was merely one of states or also one of peoples an issue touched on Prime Minister's recent speech that you see up there we can go back even further to the recitals to the 1952 Coal and Steel Community Treaty where the original six expressed their resolve to create by establishing an economic community the basis for a broader and deeper community among peoples long divided by bloody conflicts and on this issue this very month we celebrate the 50th anniversary of its judgment in Bangenton Loose with its famous declaration that community law is intended to confer upon individuals rights which become part of their legal heritage that arise not only when they're expressly granted by the treaty but also by reasons of obligations which the treaty imposes in a clearly defined way upon individuals as well upon member states and the institutions of the community Bangenton Loose was of course the first step in a long line of cases concerning the scope of EU law in the legal heritage of the member states you will all have your favourite examples mine include Defren, Martina, Zala and Grzilgic in the same spirit of search for clarity and truth I would also like briefly to comment on the suggestion which we see there that the Court of Justice has consistently supported greater centralisation of powers or responsibilities within the community and then with the union well such an observation might have reflected more accurately an overall tendency in the case law in the 70s and to a lesser extent in the 80s one cannot disregard the fact that that situation has changed significantly since the 1990s I certainly don't mean that the Court has abandoned its role as one of the essential engines of integration in cases on citizenship that I just mentioned above includes some of those rather I suggest that the Court has regularly demonstrated greater concern for the preservation of the autonomy of member states in its interpretation of the treaties in other words there is an increasing number of judgments where the Court tends to emphasise the principle enshride in article 4.1 of the TEU that the union has attributed competences only one example of that is the famous tobacco direct advertising directive case Germany in Parliament decided in 2000 in that case the Court made it clear that the provisions and the treaties that provide an approximation of laws in the context of the internal market cannot be used to circumvent and express exclusion of harmonisation laid down in the treaties in that case Germany had sought annulment of a directive banning all forms of advertising for tobacco products across the whole community Germany argued that the directive amounted to a harmonising the exercise by the community of a harmonising competence not conferred by the treaty the directive had been adopted on the basis of the former article 95 on the basis that it would improve the conditions for the functioning of the internal market the Court however held that the Council and Parliament had insufficiently demonstrated that the directive would contribute to a better functioning internal market though there were certain examples of advertisements in magazines circulating between member states and so on but in the Court's view the directive's predominant aim was rather to contribute to improving health in the community a field where the treaty excluded this action of approximation by the EU institutions it's here to useful to recall the words of the Court in answer to an argument of the Commission and Council to construe this at the article of the treaty as meaning that it vests in the community legislature a general power to regulate the internal market would be contrary to the principle that the community has conferred powers only there are other cases too that illustrate this notably in areas in relation to the free movement of goods and services that concern the the so-called rule of reason and here I would have mentioned briefly but I won't go into it in detail because of time the Court's 2004 judgment in the Omega Spielhalen case this was a case about a new electronic game involving laser guns and specific jackets which could be used for playing at killing in Omega's laser drone the equipment had been provided by a UK company but through a franchising agreement the German police took a dim view of this and issued an order prohibiting the playing of the game considering that the game constituted a danger to public order since the acts of simulated homicide and trivialisation of violence thereby engendered were contrary to fundamental values prevailing in public opinion Omega challenged the order as being an illegal obstacle to its freedom to provide services and Germany defended the order by referring to the importance of human dignity in the German constitutional order it was not disputed in the court that the police order had had the effect of interfering with free movement the issue was whether it was justified the court therefore faced two conflicting values the free movement principles on one hand and the interpretation given by a competent authority of a member state of the latter's constitutional values and the other the problem was essentially one of the definition of how far public policy could go in justifying a delegation to the free movement principles earlier case law had held that free movement could be deprived of its substance if member states were able to define unilaterally what public interest covers without any control by the community interests the court nevertheless found that the specific circumstances which may justify recourse to the concept of public policy may well vary from one country to another and from one era to another and hence the competent national authorities must be allowed a margin of discretion within the limits laid down by the treaty and so it eventually upheld the prohibition order emphasising not only that the protection of fundamental rights was also one of the objectives of the union but also and this is the important point it was not indispensable for the purpose of justifying an interference with free movement on public policy grounds that public policy ground corresponds to a conception shared by all member states as to the precise way in which all legitimate interest is to be protected in short what the court was saying there may be unity but there can be diversity with unity there are other examples and I won't go into them in detail but other examples in the area of common commercial policy since the opinion one of 1994 and later cases where the court has systematically even in an area which involved the common commercial policy which is generally an exclusive confidence of the community and now the union none the less held that in relation to various aspects of the gaps agreements relating to certain services and the trips agreement the WTO agreements required to be concluded not just by the European Union or community but also by the member states and this stricter approach has similarly appeared in the opinion two of 2000 in the Cartagena protocol and various other measures in one of 2008 Lastly but not least I perhaps shouldn't finish this overview of the case law without mentioning the court's willingness to recognise limits to some of its even more controversial rulings In Ruiz Zambrano for example it pronounced on the possible application of EU citizenship rights especially residence rights under article 20 TFEU to so-called purely internal situations this case has been depicted by many commentators as one where the limits of federalism in the EU were at issue the court decided in substance that EU citizenship rights could also be applied in a purely internal situation at least where a decision to the contrary would have the effect of depriving citizens of the union of the genuine enjoyment of the substance of their rights conferred by virtue of their status as citizens of the union leaving inside the particular criticism of that what is perhaps more relevant is that in more recent cases the court has made clear that the window that it opened in Ruiz Zambrano is perhaps to be made available only in very exceptional circumstances and here I refer briefly to direction McCarthy and leader all these illustrations provide I would suggest an objective but admittedly incomplete view of salient features of the court's rule in balancing the EU's and member states interests when interpreted the treaty at the very least they would seem to provide specific counter examples to the picture of a court of justice that has consistently supported greater centralisation so after that legal excursion let me then close by returning to my theme at the outset and to the challenges of our interesting times I hope to have given you this evening at least some flavour of the political and legal problems that seem to me to be likely arise in relation to these three constitutional events I must admit I am not an enthusiast for referenda certainly not for decisions that are economically complex or where voters are likely to be more influenced by the dust and lighter battle than by the underlying merits how many voters are really likely to wish to understand the true nature of the court's case law and one must not forget that all too often referenda are used by voters as an opportunity to give the government of the day a bloody nose irrespective of their views on the question put that explanation has often been advanced to explain the vote in France rejecting for the treaty on the constitution of Europe in the middle of a Westminster parliamentary term that risk will be present to in 2017 in the UK but where referenda have become inevitable we nonetheless need to do all we can to ensure the best result is taken for the right reasons and with a bit of luck the dawn on that day will be a dawn with sun and not the grey coldness of exclusion somewhere in the middle of the North Sea thank you very much