Professor Adam Tomkins – A Visionary or a Plonker? – The Scottish Jury Is Still out – But a Verdict is expected Very Soon (Part 1)

Adam Tomkins

 

 

 

About Professor Adam Tomkins

Professor Adam Tomkins is a British legal scholar and John Millar Professor of Public Law at the School of Law of the University of Glasgow. He was elected a Fellow of the Royal Society of Edinburgh in 2014. He was educated at the University of East Anglia (LL.B.) and the London School of Economics (LL.M.). He taught at the School of Law of King’s College London between 1991 and 2000 and became a fellow at St Catherine’s College, Oxford in 2000, before being elected to the John Millar Chair of Law at Glasgow in 2003. His research interests lie in British, EU and comparative constitutional law.

He has published numerous books in the areas of constitutional, administrative and European Union law, including two, Public Law (2003) and British Government and the Constitution (2007, with Colin Turpin), which are amongst the most widely used by law students in the United Kingdom. He has held visiting appointments at the Universities of Toronto, Queensland, New South Wales and the Australian National University, as well as in several Israeli law schools. He has lectured throughout the world. In 2014 he was a member of the Smith Commission and in the summer of 2009 he was appointed legal adviser to the House of Lords Constitution Committee. He resigned from that position in 2015 in order to become an unpaid constitutional adviser to the Scotland Office in the UK Government.

His political track record persuades the writer that he is a republican who believes in the supremacy of the people over politicans and royalty. Westminster is not therfore the best advert for democracy since it functions solely to meet the needs of the Monarchy, Politicians, business and other lobbying entities over that of the citizens of the country. But needs must and he has tempered his views in recent years advancing the belief that the 1707, “Union of the Crowns” treaty should remain to be the force driving the politics of England and Scotland in the twenty first century and beyond.

His only concession is the qualified support of a limited devolution of powers to England, Scotland, Wales & Northern Ireland. A gifted academic his recent appointment to the post of unpaid advisor to the Scottish Secretary can assist in an enhancement of the performance of the Scottish Secretary, David Mundell. Evidently his recent foray into the jungle that is politics, (taking on a high profile role in support of the Better Together campaign) has triggered a long held desire to actually bring about change he has previously only written of. To achieve the foregoing he joined the Conservative Party in Scotland and will stand for election in a Glasgow constituency. Covering the bases he is also registered as a Conservative Party List member so that he is guaranteed membership of the Scottish Parliament post the 2016 Scottish elections.

He is married to Lauren Apfel. They have 4 children, including one set of twins. Lauren is an American Jew. She was born in New York. Her parents Richard Apfel & Sharon Bickler were married in 1966. They had 3 children. The marriage ended when Lauren was still young. Her father departed the scene to operate his own Media Services Company not far from Florida. Sharon went on to marry Dr CJ Abraham. See: (http://www.scientificadvisory.com/about.html) The combined “new” family increased in size to around 8-9 in total. They reside in Great Neck, New York.

Lauren was a very gifted scholar who graduated from a number of “Top” universities in the USA. She then moved to England attending Oxford University studying the classics, literature and ancient history. It was there she met her future husband, Adam Tomkins. She put a very promising career in journalism on hold so that she would be able to raise her ever increasing family giving them all of her attention. A sacrifice, gleaned from her writing she does not regret. She publishes an excellent magazine for thinking mothers at:

(https://www.facebook.com/brainchildmagazine?pnref=lhc) and a learningsite for children at: (http://www.brainchildmag.com/)

 

 

 

 

2003 – Public Law – Adam Tomkins – Clarendon Press.

The content of “Public Law” is focused quite firmly on the public law of England. It is ambitious within its sphere but his discussion of general principles is illuminating. There is content that is focussed sharply on the distinctions between written and unwritten constitutions, and between legal and political constitutions. Careful consideration of the way those distinctions play out in the English system can help shed light on important debates in Scotland. English public law deals with the dual constitutional conundrums of European integration and far-reaching internal constitutional reform through devolution, revision of the House of Lords, and the like. The fundamental task of English public law at the dawn of the 21st century is to adapt a venerable and largely successful constitutional order to the fundamental challenges of globalization and the modernization of domestic society. http://www.thefreelibrary.com/Public+Law.-a0145882920

 

 

 

 

 
9 October 2004 – Adam Tomkins – Scottish Socialist Party members and other far left groups attend a – Declaration of Independence on Edinburgh’s Calton Hill

On Saturday 9th October Liz (oops, sorry, her maj) officially opened the new £431 million Scottish Parliament building at Holyrood. It was revealed that no one would face criminal charges over the fiasco of overcharging. The Crown Office and the Procurator Fiscal have found no grounds for complaint after a probe into the awarding of contracts for the Holyrood site. It had been claimed that one company, Bovis, was given an unfair advantage when bidding for work on the project.

There was an alternative event just over a mile away atop Edinburgh’s Calton Hill. The Scottish Socialist Party drew up a declaration of independence calling for “an independent Scottish republic built on the principles of liberty, equality, diversity and solidarity.” The declaration of Calton Hill ran from 11am till 1pm and there was a signing ceremony at noon. A crowd of around 500 gathered on a dry, overcast autumn day to hear speakers and entertainers. Constitutional law professor Adam Tompkins of Glasgow University reminded the crowd of the Queen’s previous reluctance to pay tax despite her massive income. He said that the queen had special powers or `prerogatives`, which included being able to appoint anyone she liked as Prime Minister. You cannot sue the monarchy. He said Tony Blair used these special powers to attack Iraq and there would have no Iraq war without the crown. In a democracy it is the people who are sovereign and not the crown! He urged the abolition of the monarchy. “If you want democracy down with the crown!” https://www.indymedia.org.uk/en/regions/scotland/2004/10/298867.html

 

 

 

 

 

August 2007 – Memorandum by Professor Adam Tomkins – Putting the Draft Constitutional Renewal Bill in Context

Perhaps of more concern however, is the fact that there appears to be considerable slimming down of ambition. It was stated that “the Government believes that the executive should draw its powers from the people, through Parliament” But there is nothing in the Draft Bill to write such a principle into constitutional law. It was further stated, of the Government’s prerogative powers to deploy troops and to ratify treaties, that “In a modern 21st century parliamentary democracy, the Government considers that basing these powers on the prerogative is out of date.” Again, while changes of detail are proposed in regard to both powers, it is clear that both are intended to remain firmly based on the prerogative, albeit that the exercise of these prerogative powers will be subject to moderately enhanced parliamentary oversight.

One of the most striking features of the discussions were the citations of history. The proposals explored were explicitly set in the context of the United Kingdom’s ongoing, historical constitutional development. A major theme of that development is the transfer of power from Crown to Parliament. A view expressed was that, “reforms have developed the country from a feudal monarchy where the King’s word is law and only a tiny minority had any real influence, to a representative democracy governed through a sovereign Parliament elected by universal suffrage” As matters stand, however, the transfer is incomplete. Britain’s constitution, even now, is not a full parliamentary or democratic one.

The Crown retains very significant powers. Some continue to be exercised by the Monarchy itself (eg, appointment of the Prime Minister, dissolution of Parliament, and royal assent to legislation) but the bulk of the Crown’s powers are now exercised by the Prime Minister and by other Cabinet Ministers and officials (eg, the making of treaties, the deployment of the Armed Forces, the conduct of diplomacy, the governance of Britain’s overseas territories, the appointment and removal of Ministers, the appointment of peers, the grant of honours, the claiming of public interest immunity, and the granting and revoking of passports, as well as others).

It is clear that, as the Government accepted “when the executive relies on the power of the royal prerogative it is difficult for Parliament to scrutinise and challenge government’s actions”. This is a reflection of the view established by the House of Commons Select Committee on Public Administration, which reported in 2004 that, when exercising the Crown’s prerogative powers, Ministers have “very wide scope to act without parliamentary approval” If, as the Government claims, the country is a “representative democracy governed through a sovereign Parliament” then it follows that current constitutional practice with regard to the royal prerogative is contrary to principle.

The transfer of power from Crown to Parliament must be completed. In a representative democracy governed through a sovereign Parliament such a claim would surely be axiomatic. There would be no reason to regard it as either bold or controversial. The starting principle for executive power should be the same for central government as it already is for local government: namely, that the government may exercise only those powers which are expressly or by necessary implication conferred upon it by statute. If this is sufficient for local government why should it not also be for central government?

The personnel of central government is already drawn from Parliament and once in office the government is of course accountable to Parliament for its policies. Given this, there is no reason not to extend the control by Parliament over the government also to its powers. Thus, Government should possess only those powers which the people, through their elected representatives in Parliament, have expressly or by necessary implication conferred upon it by statute. This, it is respectfully submitted, is the constitutional principle on which the governance of Britain and on which a programme of constitutional renewal should be based.

The “national conversation” initiated by the Scottish Executive in August 2007 has at least the potential to lead to radically more fundamental constitutional reform than any proposal contained in the Draft Constitutional Renewal Bill. Parliamentary scrutiny of the future of the Union is a matter for another day, no doubt. Nonetheless, a sense of perspective is called for. http://www.publications.parliament.uk/pa/jt200708/jtselect/jtconren/166/8051304.htm

 


Comment: And he argues that Scotland should be content to remain with Westminster????

 

 

 

 

 

26 May 2010 – Protecting Individual Liberty through Constitutional Reform – Getting Rid of the Human Rights Act

Adams Tomkins sought to ground his defence of parliamentary democracy in political theory. “Our Republican Constitution’, Tomkins (2005, Hart Publishing).” In it he seeks to persuade the reader that that a Bill of Rights and a written constitution fail to give effect in the way that parliamentary democracy does. With whom should power ultimately reside? Should the Courts have the power to strike down Acts of Parliament that are incompatible with our fundamental rights or should our elected representatives have the final say on where the balance between liberty and security lies?

Believers in the judicial protection of human rights, would enhance the power of the Courts with a Bill of Rights, along with a written constitution that would, together, confine the doctrine of the sovereignty of Parliament to the dustbin of history. the theoretical work of Tomkins represents a profound challenge to the belief that protection of liberty is best ensured by weakening the power of parliament in relation to the Courts, rather than strengthening the power of Parliament in relation to government.

https://www.opendemocracy.net/ourkingdom/daniel-jones/protecting-liberty-through-constitutional-reform-response-to-stuart-weir

 

 
Comment: Tomkins, a constitutional lawyer, was on the Smith Commission, and is currently an advisor to the Secretary of State for Scotland. His selection by the Scottish Conservatives may be due to the Conservatives policy for a UK Bill of Rights. That requires the repeal of the Human Rights Act. Although, the SNP are signatories to the Smith Agreement they say they would withhold legislative consent with regard to the Human Rights Act. I don’t know what the other parties position is, but the Conservatives plans for a UK Bill of Rights and the impact on the Human Rights Act in Scotland could play a big part in next years elections.

 

 

 

 

 

6 May 2011 – British legal scholar Professor Adam Tomkins discusses the country’s constitutional monarchy.

Tomkins is a supporter of Republic (https://republic.org.uk/) – an organisation which calls for the people of Britain to be granted the right to democratically elect their head of state.   https://www.youtube.com/watch?v=vhVbamFf40E

 

 

 
11 November 2011 – Adam Tomkins: Unionist stooge?

Now it is Adam Tomkins’ turn. The University of Glasgow public law professors argument that under its current powers, Holyrood’s referendum on Scottish independence could be – and they argue, probably successfully – challenged in the courts. Despite the calumny and dismay of the newspaper headlines, Professor Tomkins argument should come as no surprise. The Scotsman invites nationalists not to deride Tomkins as a “Unionist stooge”.

There are a number of very good reasons not to do so, and to engage with the arguments he actually makes. However, I’m left with a general sense that folk are uncertain and unclear about Tomkins is actually arguing, and why. Better to understand his case, I thought it would be handy to generate a lightweight(ish!) account of the potential legal controversy surrounding the independence referendum, and to answer a few of the familiar objections many have raised. http://lallandspeatworrier.blogspot.co.uk/2011/11/adam-tomkins-unionist-stooge.html

 

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Articles of Union with Scotland, 1707  First 3 pages

 

 

 

21 November 2011 – Scottish Independence Debate – Glasgow University Union celebrates 30 years of world-class debating. https://www.youtube.com/watch?v=swWhEBbz5sk&index=12&list=PLB5d97rZOjDabYaN3O3MMLNkJO9p2lIgl

 

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11 August 2012 – Constitutional experts in disagreement over whether the Scottish Parliament has the power to hold an independence referendum.

Speaking on Good Morning Scotland Saturday edition two constitutional experts failed to agree on the issue that has enveloped the BBC and the Labour party in a row over bias. Interviewed on the programme by show joint-host Derek Bateman, Adam Tomkins of Glasgow University claimed that the law was clear and insisted that the Scottish Parliament could not hold a referendum without Westminster permission. However, fellow guest Aileen McHarg of Strathclyde University disagreed and said that the debate was a matter of interpretation and it was possible for the referendum to be held by Holyrood.

“The Scottish Parliament was created by the Scotland Act 1998, and the Scotland Act 1998 is the instrument which delivered devolution for Scotland, it created the Scottish parliament and it provides for the powers that the Scottish parliament has.” said Mr Tomkins. He explained that the Scottish Parliament’s legislative power was limited to that which was devolved to it and as the Constitution was a reserved matter, it had no power to hold a referendum on independence. The academic claimed that to attempt to try to take on more powers would be in breach of law and would be liable to end up in court.

However, Mr Tomkins insistence that the debate was clear cut was challenged by Ms McHarg who pointed out that there was a difference between a consultative referendum, which was what the SNP were proposing and would have no power to bind the Westminster parliament and a legally binding referendum which would compel Westminster to act on the result. Arguing that the Scottish Parliament had the power to hold the former, Ms McHarg said: “There is an argument that there is a difference.” She explained that if the Scottish Parliament legislated to hold a referendum then it had first to be determined what the purpose of the legislation was. The academic explained that this was the key in determining legality.

“The argument that Adam and other people are putting forward is that the purpose of a statute to set up a referendum on independence is to end the Union, because the declared intention of the Scottish government is to bring about independence. “But the counter argument is that that’s not the purpose, the purpose is to consult the Scottish people on their views.”

The debate then became heated as Mr Tomkins angrily tried to intervene. In an exchange reminiscent of Tuesday night’s interview with Labour MP Ian Davidson, Derek Bateman asserted that he would conduct the interview and not Mr Tomkins. A clearly irritated Mr Tomkins insisted that this was not about consulting the Scottish people calling it a “myth that’s got to be scotched”. Mr Tomkins claimed that referendums were formal decision making devices which were about making decisions and not about being consulted. “The Scottish parliament does not have the power to make decisions” insisted the academic.

However when pressed on whether the Scottish Parliament had the power to hold a consultative referendum, Mr Tomkins appeared to concede that such a power was within the Scottish government’s competence answering, “I didn’t say it couldn’t consult, I said it does not have the legislative power to pass an act providing for a referendum on Scottish independence.”

Mr Tomkins assertion was again challenged and it was implied that he was confusing legal effect with political effect. Ms McHarg said: “The legal effect of a referendum which could be passed by the Scottish Parliament is quite clearly, purely and simply to ascertain the views of the Scottish people. It has no legal effect beyond that.” The academic explained that the political effect was something quite different, and that it was an important difference.

In short, Westminster are under no legal obligation to act on the result and thus it may or may not have an impact on the Union. Ms McHarg said that key to the debate was to determine what the referendum related to, whether it was to determine the views of the Scottish people or to end the Union.

The exchange between both academics is sure to have implications for both Government’s in that Westminster’s role is not at all clear cut. Speaking on Tuesday evening, Labour MP Ian Davidson made clear the Unionist intention was for London to take control of the referendum and to apply conditions on the ballot that related to the timing and the question posed.

The Scottish Labour MP conceded that the anti-independence parties believed a rushed referendum would ensure a win for the No campaign. In his interview with Isabel Fraser, Mr Davidson said: “we want to have a speedy referendum… We want to have a referendum because we think we’re going to win quite frankly”.

The debate has implications for both the Yes and the No campaigns, in that if Unionists are seen to be trying to wrest control of the referendum it may result in a backlash at the ballot box. The Yes campaign must ensure that any referendum is seen by the public as legitimate and that accusations of uncertainty and possible legal wrangling are removed.

However the Westminster government may already be in a catch 22 situation in that any assertion that the Scottish government’s ballot has no legally binding authority may in fact unwittingly remove any threat of legal challenge – the ballot will then very clearly be consultative. Similarly, should the Westminster government formally acknowledge that they will recognise the result of the ballot then they could be seen to be bestowing a de-facto legality on the referendum.

http://www.newsnet.scot/nns-archive/index.php?option=com_content&view=article&id=5574:experts-split-on-scottish-parliament-referendum-power&catid=40:referendum&Itemid=112

 

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8 February 2013 – An independent Scotland can never hope to manage it’s affairs within the SNP’s suggested timescale and to suggest otherwise is just irresponsible, writes Adam Tomkins

In contrast with the SNP’s deliberate obfuscation, we can be clear about what it would mean in legal terms for Scotland to leave the UK. The rest of the UK would continue and, legally, it would continue as the UK. It would need a new name (the United Kingdom of England, Wales and Northern Ireland) and a new flag (there would be no blue on it anymore) but, in international law, it would be the continuing state. Scotland, by contrast, would be a brand new state. The continuing UK would inherit all of the international legal obligations currently in place in respect of the UK, including its EU membership, its UN and NATO memberships, its seat at the Security Council, as well as treaty obligations under 14,000 different instruments of international law. http://www.scotsman.com/news/adam-tomkins-independence-a-road-to-nowhere-1-2779831
An opposing view: SNP timescale for Scotland’s EU membership “tough but realistic”. “http://www.bbc.co.uk/democracylive/scotland-25952472

 

 

 

 

28 March 2013 – Adam Tomkins: A West Lothian Answer?

As the House of Lords Constitution Committee pointed out in its short report (http://www.publications.parliament.uk/pa/ld201012/ldselect/ldconst/184/184.pdf) on what was then the Scotland Bill in 2011, while the devolutionary principle of Home Rule has now been accepted, indeed embraced, by all three of the UK’s main political parties, the consequences of devolution for Whitehall and Westminster continue to be unresolved. For Government the key issue that remains open is the funding of devolution and, in particular, the future of the Barnett formula. (http://www.publications.parliament.uk/pa/ld200809/ldselect/ldbarnett/139/139.pdf)

For Parliament, the main ongoing tension concerns the age-old West Lothian Question. This week has seen a potentially significant intervention on each of these matters. In a breakthrough speech delivered in Edinburgh on 26 March Ruth Davidson MSP, the leader of the Scottish Tories, said that the “much-derided and little understood” Barnett formula is in its “death throes as it stands”. Well, I’m not sure about that – I detect no appetite either in Government or Opposition for the Barnett formula to be revisited for the time being – although everyone knows that it will have to be looked at one day.  http://www.scottishconstitutionalfutures.org/OpinionandAnalysis/ViewBlogPost/tabid/1767/articleType/ArticleView/articleId/1395/Adam-Tomkins-A-West-Lothian-Answer.aspx

 

 

 

 

29 March 2013 – Policies, not Powers

The McKay Commission has published its answer to the West Lothian Question:
http://www.scottishconstitutionalfutures.org/OpinionandAnalysis/ViewBlogPost/tabid/1767/articleType/ArticleView/articleId/1395/Adam-Tomkins-A-West-Lothian-Answer.aspx).

Ruth Davidson, the leader of the Scottish Tories, has said that her party was on the wrong side of the argument in seeking to resist devolution in 1997-99 and has joined the Lib Dems and Labour in pledging that devolution will continue to grow and develop — and not stand still — after we vote No in 2014. Margaret Curran, Shadow Secretary of State, delivered a speech in which she showed how difficult it still is for Labour simultaneously to oppose both the Tories in Westminster and the Nationalists in Holyrood.

I’m a constitutional lawyer. I don’t mind constitutional nerds, and I count several constitutional anoraks among my friends. But I happily recognise that these are minority pursuits. Most politics — quite rightly — is not concerned with constitutional questions, but with matters of tax and spend, social justice, public services, etc. Arguments about what powers should be devolved to Holyrood and what powers reserved to Westminster may keep us small band of constitutionalistas happy and awake into the night, but most folk would much rather hear their politicians talking about something else — anything else — whether it be the. https://notesfromnorthbritain.wordpress.com/2013/03/29/policies-not-powers/

 

 

 
7 September 2013 – Adam Tomkins – Reasons for backing the Union

Father of four Adam Tomkins, a professor of law at Glasgow University. “I regard my country as Britain. I feel neither English nor Scottish. I was born in England and I lived there for 33 years. I know I am in a minority but I don’t regard myself as English or Scottish,” he says. If Scotland were no longer to be part of the rest of the UK, he adds, “I don’t know if I would feel comfortable staying.” He “totally buys” the core message of the pro-UK campaign that Scotland currently “gets the best of both worlds”. He adds: “I have four young children and when I look at them growing up and then I look at friends in London and see the way of life down there, I thank God I don’t live in London. That’s because things have been devolved.” The way Scotland has evolved since devolution is a success story, not a stepping stone, he argues. http://www.scotsman.com/news/eddie-barnes-reasons-for-backing-the-union-1-3081868

 

 

Comment:

Mr Tomkins is very happy in Scotland. He’s glad he lives here, especially for the sake of his children. Devolution has proved to be beneficial for the people of Scotland. BUT, because the people of Scotland choose self-determination thus choosing to extend devolution to its optimum; Scottish self-determination, he feels that he may not want to live here. This is quite incredible. He enjoys living in Scotland, it benefits him and his children, he believes that limited government has been successful…but feels that he might have to give this all up because our people choose self determination?!  Sir, your “reasons” for voting against Scottish self-determination do not add up, indeed, they are clear examples of muddled thinking probably caused by the Anti-Independence Alliance’s “Project Fear’s” constant dissembling and misinformation.

 

 

 
14 September 2013 – Who owns Scotland? ..Scandal of the hidden rural lords

A Vote for independence could spark a bitter tug-of-war between Scotland and England over ‘shared’ UK property, a leading law expert warned this week. Glasgow University professor Adam Tomkins predicts that under international law, all government buildings, institutions and organisations could be up for grabs. http://www.thescottishsun.co.uk/scotsol/homepage/news/5432768/Who-owns-Scotland-Scandal-of-the-hidden-rural-lords.html

 

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26 October 2013 – University Links with Israel – the debate – a bonus for whom?

On 4th February 2011, the Jewish Chronicle Online reported that Glasgow University professor Adam Tomkins was the year’s recipient of the Hailsham Scholarship by the British Friends of the Hebrew University for work promoting understanding between Israel and the UK. The previous year he had been a visiting professor at the Jerusalem university, where he ran a course on national security.

It was reported that the Scholarship would facilitate the next stage of what Prof Tomkins hoped would be “a lifelong series of collaborations with colleagues at the Hebrew University”. In addition the comment “If, as a result, links between Glasgow Law School and legal scholars in Israel are strengthened, this will be an added bonus.” was attributed to Prof Tomkins. It should be noted that Prof Tomkins neither confirmed nor denied the statements attributed to him.

 

 

For over two years, Scottish Friends of Palestine questioned the nature of this bonus with Professor Tomkins and the head of the School of Law, Professor Rosa Greaves. We questioned the apparent mandate which Prof Tomkins had to speak on behalf of the School of Law at Glasgow University. While Professor Tomkins was prepared to enter into dialogue, Professor Greaves adopted the mantra of academic freedom and the need to protect free exchange of ideas.

For over two years we supplied information to every single member of the School of Law in relation to the denial of educational opportunity and academic freedom by Israel to the Palestinian under occupation. On this subject the whole University remained mute.

The debate: The question as to why the sacrosanct nature of academic freedom with a state which consistently denies it to others remains unanswered.

Prof Jonathan Rosenhead has been asked to discuss the nature of any bonus for those academics who choose to collaborate with Israel. Why Boycott Israel’s Universities?

Prof Ilan Pappe will argue the case for the academic boycott of Israel. http://www.palestinecampaign.org/events/university-links-israel-bonus/

 

Adam Tomkins addresses Scottish Republican Rally

 

 

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