I wanted to write something about Brexit while it’s still timely. The topic has temporarily dropped from the radar but will soon return with a vengeance as the UK approaches a new “cliff edge” in about a year. At the end of this period, a transitional arrangement will end; and if no trade deal has been reached by then, the UK will leave the EU on World Trade Organization terms. We are often warned the UK must not leave without “a deal,” but this is misleading because WTO terms would represent a perfectly acceptable arrangement.
Brexit is an acronym which stands for Britain’s exit from the European Union. The controversy has given rise to a flurry of such acronyms – Frexit, France’s exit ; Dexit, Germany’s exit; and my personal favorite Czech Out, the exit of the Czech Republic. The EU has a mechanism, called Article 50, which theoretically allows member states to leave; but like the Hotel California – you can check out; but you must never leave (unless prepared for the clean break). British Prime Minister Theresa May waisted three years negotiating a terrible deal which was worse than membership. It was repeatedly rejected by Parliament despite numerous attempts to ram it through (the rejections were about the only thing Parliament could agree on). May’s spider’s-web agreement spawned yet another acronym, BRINO – Brexit in name only.
The UK has been roughly divided into two camps, consisting of Leavers and Remainers, the latter often referred to as Remoaners, because they only accept democratic outcomes they agree with. They’re also internationalists, claiming the nation state is obsolete and ought to be replaced by a world government run by really smart people who know what’s best (a dictatorship). The first step towards globalization is regionalization and the continent of Europe is a “blueprint” for successive phases.
Needless to say, I am a Leaver (as the title of this blog site would suggest). In another sense I am also a Remainer; supporting a close trading arrangement and other forms of co-operation which do not compromise national and individual sovereignty. Indeed, from the beginning, that was always the stated intention of the EU. The idea of a super state was a hidden agenda, waiting to emerge full blown once decades of anti-nation state propaganda had reached fruition. The EU was originally sold to the public as a peace project, an alternative to two world wars. If that’s so, then why the push for a single European military with headquarters on the continent? This planning is now at a very advanced stage. Apparently, they are still planning for war but on a much larger scale. Nationalism is racism, they say, but people who love their own families can live side by side with other families without becoming the Hatfields and the McCoys. It happens all the time – in the real world. Canada has a free trade agreement with the United States and Mexico but no assembly outside Canada has power to legislate for Canadians and we are not subject to the rulings of any foreign court. There were many wars on this continent once, but this is unthinkable now, without the need for political unification. In Europe, the once hidden imperative for ever closer political union is now explicit and Brexit represents a dagger at the heart of it. If Britain were to remain in the EU, it would have less autonomy than a single state within the United States. There’s a government document in the National Archives which says so.
There are many reasons to be Euroskeptic, but of particular interest to me is the damage done to the UK constitution occasioned by many years of EU membership. This damage has accelerated since the 2016 referendum owing to desperate attempts by well-placed Remainers to subvert the results of the referendum. This is no small matter. The UK constitution has evolved over the centuries as a defense against tyranny. To allow that constitution to be compromised in favour of anti-democratic institutions in Brussels is to put at risk all the protections we take for granted.
First, I will explain some key features of the UK constitution then proceed to describe how EU membership has damaged it, possibly beyond repair.
The central pillar of the UK constitution is the legal sovereignty of Parliament. Parliament may legislate on any subject matter and having legislated, no court or other body may challenge the validity of that legislation. Furthermore, a unique aspect of the U.K constitution is that of the convention. Convention gives the UK model it’s unwritten characteristics. An unwritten constitution works fine until a convention is violated. For example, no law can take effect without royal assent; but by convention, the Queen does not act alone, relying on the advice of her ministers. What happens if she withholds the royal assent, which she is legally entitled to do? The answer – constitutional chaos. To be clear, the Queen has not done this, but other conventions have been broken in desperate attempts by Remain MP’s and a biased Speaker to stop Brexit. The closest thing the UK has to a written constitution is the Bill of Rights 1688. Article 9 of the Act says the freedom of speech and debates and proceedings in Parliament may not be challenged or impeached in any court or place out of Parliament. This clause was inserted because the King would often use the courts to override proceedings in Parliament. This use of the courts to interfere in “proceedings in Parliament” re-emerged during the Brexit battle. The constitutional battles of the 17th century resulted in a clear delineation of responsibility – a separation and balance of powers. Tyranny occurs when one branch or arm of governance seeks to override another. Since then, the courts have always refused to get involved in political matters. The rule is, Parliament creates laws, the courts enforce them. Until now, the UK courts have been renowned for impartiality. I cannot think of a single example until now when the courts have broken with this convention. Another aspect of the UK constitution is the concept of the royal prerogative. Certain matters are for the executive branch alone and the courts may not interfere except to determine the existence and scope of a prerogative power. Two common prerogatives are the command and disposition of the armed forces and the negotiation of international treaties. Negotiations with Brussels over Brexit is in the latter category.
The UK joined the European Union, or The European Economic Community as it was then called, in 1973. The Union was “sold” to the public by Ted Heath’s conservative government as a trading relationship. I lived in the UK at that time and I remember it well. In those days, the Labour Party (the socialists) opposed the UK’s application for membership based on the issue of national sovereignty, the same reason I oppose it today. How times have changed! Today it’s the conservatives leading the Leave campaign. Now it’s Labour (although divided) trying to keep us there. Back in the day, Labour’s eloquent spokesman, Anthony Wedgewood Benn, repeatedly warned of the hidden agenda. That was when the Labour Party actually represented working people rather than an effete establishment as it does today. Here’s what he had to say:
Britain’s continuing membership of the Community would mean the end of Britain as a completely self-governing nation and the end of our democratically elected Parliament as the supreme law-making body in the United Kingdom.
Here’s what he said after the passage in Parliament of the European Communities Act 1972 (providing the legal basis for the UK to join the EEC):
It was a coup d’état by a political class who did not believe in popular sovereignty.
The 1972 Act gives legal authority for EU law to have effect as national law in the UK. The 1972 Act also gives EU law supremacy over UK national law. Where the interpretation of EU law is in doubt, the 1972 Act requires UK courts to refer judgment to the European Court of Justice. All primary legislation enacted by the UK Parliament has effect subject to the requirements of EU law. This means that the courts are obliged to strike down legislation which is inconsistent with EU law. The European Court of Justice (to which the UK is now subject) has since ruled that EU law prevails even over the national constitutions of member states. As always, the devil is in the details.
This is a clear violation of the legal sovereignty of Parliament principle, the very foundation of the UK constitution. It is also a clear violation of the long-standing convention that UK courts do not interfere with Parliament.
An example will serve to illustrate. I refer to the The Factortame case of 1991, which concerned the practice whereby Spanish fishing companies registered their vessels as British and then bought up British fishing licences, allowing them to share UK quotas even though they sailed from and landed their catches in Spanish ports. Parliament passed the Merchant Shipping Act to protect UK quotas. To qualify for British quotas, ships had to be owned and crewed in Britain. A group of Spanish-owned fishing companies headed by Factortame Ltd. brought a legal action claiming, “national discrimination.” The European Court of Justice upheld their claim and the UK ‘s highest court had no choice but to strike down the Act. Factortame is a clear example of the impotence of Parliament occasioned by EU membership. To add insult to injury the British government had to pay 100 million pounds in compensation to the Spanish companies for the 18 months they had been deprived of fishing rights.
After all my painful experiences with religious and secular fundamentalism, I’ve become deeply suspicious of people with hidden agendas, disguising their true intentions behind a mask of moral and intellectual superiority; especially when I suspect their real motivation is power. Every now and again, they step out from behind the curtain and reveal themselves. Here’s what political economist and diplomat Jean Monnet (one of the original founding fathers of the EU project, (called “The Father of Europe”) had to say:
Europe’s nations should be guided towards the super state without their people understanding what is happening. This can be accomplished by successive steps, each disguised as having an economic purpose, but which will eventually and irreversibly lead to federation.
Well, he very nearly got us there. Then came Brexit.
The progression from trade arrangement to super state was recognized in the 2016 Referendum Bill, read in Parliament by then foreign secretary, Philip Hammond (remember that name). He begins, the EU had “changed almost beyond recognition” from what the British had endorsed in the confirmatory referendum in 1975.
He ended: “Whether you favour Britain being in or out, we surely should all be able to agree on the simple principle that the decision over our membership should be taken by the British people. Not by Whitehall bureaucrats; certainly not by Brussels Eurocrats; not even by government ministers or parliamentarians in this chamber. The decision must be for the common sense of the British people . . . For too long, powers have been handed to Brussels over their heads. For too long, their voice on Europe has not been heard. This bill puts that right. It delivers the simple in/out referendum that we promised, and I commend it to the House.”
MPs endorsed his call by the massive margin of 544 votes to 53. Not a single Conservative, Labour or Liberal Democrat MP voted against it (the 53 “no’s” consisted of Scottish National Party MPs). In the most spectacular and emphatic fashion, Parliament had ceded its authority to the public, directly.
That was all well and good when the political establishment were confident that the British people would swallow the Kool Aid. Once the unexpected happened, and the Leavers won the referendum, that same Philip Hammond, who once lauded the common sense of the British people, he abruptly turned on them, together with 21 Tory rebels,and set upon sabotaging the democratic result. Phillip Hammond and others were all elected on a clear platform of “no deal is better than a bad deal.” By defying the government and refusing to allow a “no deal exit,” they were also defying the very people who elected them. Today the legal supremacy of Parliament really means the legal supremacy of the voting public. Suddenly, the people had no common sense, they did not understand what they were voting for. The simple in or out choice would not suffice after all. It needed to be hedged about by endless reams of qualification calculated to neuter the result.
By denying their own government a working majority, the rebels had also engineered a “hung Parliament.” Parliament then passed a law requiring Boris Johnson to seek an extension rather than leave on schedule (on a date already enshrined in law). Boris sought to prorogue (adjourn) Parliament for a period deemed longer than normal. Rather than seek a remedy internal to Parliament itself, the Remainers took him to court. This marked a return to the constitutional battles of the 17th century. The High Court gave an impeccably correct decision in line with precedence. It was a political question and not one for the courts. It could be resolved in Parliament by a vote of no confidence or an election. The Remainers lacked the nerve for either alternative, anything but face the verdict of the electorate. Instead they appealed to the Supreme Court, a relatively new court set up by arch Remainer Tony Blair. This is the moment the constitution shattered. The Supreme Court held that the PM’s decision was “unlawful.” This was more of a political decision than a neutral and impartial one based on precedence. There was a fear that the extra time involved in prorogation would prevent Parliament from extending the deadline thus triggering a “no deal” outcome. The clear rule has always been, the courts do not interfere in political matters. In the end it mattered little how long Parliament was prorogued but the decision has created a constitutional crisis.
The will of the people cannot be suppressed forever, and to drive that point home even more forcefully a subsequent election (on a platform mandating a clean Brexit) returned Boris Johnson with a thumping majority; and as for those 21 Tory rebels, every last one of them failed to be re-elected after being expelled from the party. The way is now clear for a true Brexit, but have those passionate Remainers given up? Not a chance. Their patriotic zeal for a new European super state is undiminished, even as the EU fails miserably on every front. It remains to be seen how much influence the new aristocracy will bring to bear on subsequent developments.
The EU is not a democracy, far from it. Eu law originates as Commission proposals and is enacted by a Council of Ministers. There is a European Parliament but it’s mostly a debating chamber. It‘s role is consultative but real power resides with unelected appointees who receive their instructions from corporate lobbyists, a more direct form of corporate rule. The nation state is regarded by the multinationals as a big nuisance, an obstacle to the free movement of labour, capital, goods and services. Free movement of people provides cheap labour for big business as well as the nannies, gardeners and servants needed to serve affluent Londoners. Remainers can barely conceal their contempt for democracy, as do their ideological soulmates in Brussels. The aristocracy of old had a similar contempt for the masses.
Britain has the second largest economy in the EU and the largest military. It is the second largest contributor to the EU budget. Its economy continues to thrive despite all the predictions of “catastrophe” from the Remain camp. Leavers call this “project fear.” “Project fear” is nothing new. When the UK refused to adopt the Euro currency in 1992, there were similar predictions of catastrophe, none of which materialized. The UK imports vast quantities of manufactured goods from the continent, more than it exports which means a free trade agreement will benefit Europe more than the UK. The UK is in a strong negotiating position. Having a close relationship with Europe, trading or otherwise, is a great idea . Political union is unnecessary to achieve these ends.
(C) Adrian Charles Smith 2020