Post-Brexit laws: confusion reigns

‘Take back control’. It’s a powerful slogan that evoked a sense of the frustrated ambition, and a yearning for justice. Except given the opportunity to actually decide the legal direction of the country, the Brexiteers are clueless.

A lot of debate during the 2016 referendum campaign focused around issues of legal sovereignty and the democratic deficit that membership of the EU entailed. Although most of the people who voted leave doubtless cared little for the constitutional dilemmas or the finer legal arguments the issues were and are real, and deserved a hearing. As Lord Neuberger, the most senior judge in the country, pointed out today the government – stuffed with Leave campaigners – hasn’t given any indication of what decisions to take now the choices have to be made. It’s the most damning inditement of the Brexit debacle – and that’s saying something.

Firstly a little context on sovereignty.

The charge against the EU in the referendum campaign – and for may years previously – was that being a member of the EU undermined the UK’s political sovereignty. This was a powerful charge because essentially it was a true – at least on a particular understanding of what national political sovereignty is. Put simply a country’s sovereignty is its ability or right to control its own territory, notably in terms of controlling its own borders, money and laws. Part of joining the EEC (and latterly the EU post-Maastricht) was that some of the UK’s political sovereignty was ‘lent’ to the EU institutions in Brussels.  In theory, the UK was still a politically sovereign nation but in some legal and political areas – social policy and immigration policy most notably – EU law took precedence over UK-made law. That’s because the UK’s own parliament had passed the 1972 European Communities Act agreeing to that arrangement. In reality – as no-one seriously expected the UK to leave – there was some watering down of the UK’s absolute political sovereignty.

3 quick point on the side:

  1. Genuine political sovereignty only exists for a hegemonic imperial country (howdy USA!) and since the UK isn’t one of those anymore (see Suez Crisis) it’s a bit of a moot point
  2. It was / is actually beneficial for the UK to be party to the EU’s ‘pooled sovereignty’ arrangements because the UK gains much more than it loses (like how you could have complete control of your beloved football, but unless you share it you can’t actually play a game)
  3. It was pro-European’s inability or unwillingness to defend the reality of the EU which allowed the Europsceptic obsessives to set the narrative and poison people’s minds against ‘Brussels bureaucrats’ and the like.

Those Eurosceptics, the Brexiteers, have got their way and Article 50 has been triggered. So they should have a clear vision of what happens next, particularly in a legal sense. All that EU law – which has formed part of our legal code for decades – is about to vanish like mist in the morning. What will replace this apparently terrible, imposed continental body of law? There is a notable and shaming silence on the matter, which surely exposes the vacuity of the Leave side’s arguments.

If the motivation for exiting the EU was really to improve the country then there are several sensible options for replacing the laws and regulations that first originated in the EU. You could draw up an extensive new UK legal code and take the opportunity to move positively into the 21st century by clearing a lot of the legal deadwood from the statute books. You could convene a constitutional convention and overhaul some of the most archaic of the UK’s legal and political institutions, like the House of Lords. Instead, as the head of the UK’s Supreme Court said to the BBC:

“If [the government] doesn’t express clearly what the judges should do about decisions of the ECJ after Brexit, or indeed any other topic after Brexit, then the judges will simply have to do their best. But to blame the judges for making the law when parliament has failed to do so would be unfair.”

This is – in the formal, restrained and careful language of a senior judge – a full throated roar in the direction of the government to “PULL YOUR FINGER OUT!”. Lord Neuberger is raising the prospect of there being nothing to replace the EU laws when Brexit happens and no guidance has been issued to say what judges should do. For the legal profession not having a clear set of guidelines is tantamount to not having oxygen to breathe. If the present situation – the government not working out what the hell will happen once we leave – parts of the legal system will grind to a halt. Worryingly, Neuberger – who constitutionally has to stay strictly politically neutral – has already anticipated that politicians will try and shift the blame to the judges for this political problem. Little wonder when members of his profession have recently been branded ‘enemies of the people’.

So why have David Davis, Boris Johnson et al not come up with a plan? In truth because they don’t know what they’re doing. The true Brexit believers only ever wanted to burn it all down, without having given any thought to what might come after. It’s no coincidence that the vast majority of Brexit enthusiast politicians are privileged and entitled older men, who view the pooled sovereignty of the EU as they would any attempt to curb their own freedom to do however they please, without a passing thought for the benefits of collaboration, or even a little humility. They are right-wing neo-liberal anarchists, hell bent on destruction. They said they wanted to take back control, but given then opportunity they’ve just not up to the job.

When it all goes down, someone else (that’s us) is going to be carrying the can for these guys, and I suspect not for the first time.

The Billion Pound Brexit divorce bill

Newspapers report today that the UK government is willing to stump up something in the region of £36bn to leave the EU.

The figure comes as a potential surprise because of the bullish stance taken by the Brexit secretary David Davis, as well as Boris Johnson and others in the government who had claimed the UK would pay little or nothing to leave the EU. The Union’s negotiator had claimed a figure nearer to £50bn was necessary in order to secure a smooth exit, so the apparent willingness to hike the UK’s figure closer to the EU one could be seen as yet another climb down.

It shouldn’t be a surprise that if the UK does leave the EU, it will be left with a big bill to settle, despite Johnson’s assertion some time ago that the EU could “go whistle” for the money. The UK’s negotiating hand having triggered Article 50 and in attempting to depart the Euro-club is almost comically weak, and the need to settle up before going is a fairly legitimate part of the process.

Although the sum is routinely referred to as a ‘divorce bill’ this is a rather misleading name. It implies something along the lines of having to pay legal fees to disentangle a marriage, which might keep solicitors in the money, isn’t a fee anyone would be keen to pay.

A better analogy might be that of settling a restaurant bill. A big meal is in full swing with lots of diners sharing food and drink. The UK announces that it needs to up and go – an early morning net day perhaps? In that situation not settling for the proportion of nosh and booze consumed would be pretty unforgivable, but that is essentially what the hard Brexiteers are saying should happen. In real terms the UK, as part of the EU, was party to many commitments as part of the EU’s 7-year budgetary cycle, many of which have been started but not finished. If the UK wants to go it’s only fair that the commitments jointly made whilst still a full and willing member are honoured. Hence the bill.

That said, it’s a matter of political negotiation how big the bill will be. It was never written in advance what the liabilities of future commitments would be if a country were to head for the exit because it wasn’t seriously considered. In the restaurant analogy, there was a menu but not really any clear prices. The EU – as seasoned negotiators will quite predictably highball the UK with a figure above what they might accept, safe in the knowledge that the clock is ticking and the UK is set to lose out disproportionately if the bill is not sorted, because post-Brexit trade negotiations will only commence once that issue has been put to bed.

The issue of the so-called divorce bill is a really good example of all that is wrong with Brexit. The UK public – via the right wing press – are being presented with the propaganda that it is blood money. The Tory government are cynically exploiting people’s ignorance of how the EU actually functions. The cabinet is at first unclear, then divided on the issue, before basically capitulating because there is no negotiating position to speak of and a lack of people to carry one out anyway.

Expect much more of this. A fairly good indicator of what’s going to happen in about 4 to 6 week’s time with Brexit is to watch what Davis-Johnson-Gove cite as absolutely-never-over-my-dead-body red lines today.

 

5 key reasons the UK needs a new, post-Brexit blueprint

PostBrexitBlueprint

We’re looking backwards, when we need to be looking forwards.

The post-Brexit choice are currently presented is as Option A, and Option B. Are you backing the 52%, or the 48%? What is needed is an approach that addresses the needs and desires of the 100%, or at least tries to.

Option A is an extreme Tory Brexit, an attempt to conjure up the world of pre-1972 before Britain joined the EEC. Option B is to try to go back to before June 2016 and pretend that the referendum hasn’t happened. These two choices are the Scylla and Charybdis of contemporary British politics.

Neither option will do anything to heal the wounds of the most divisive political event in living memory. Neither option actually addresses some of the underlying issues, both foreign and domestic, that have brought us to this point. It is necessary to steer a course between these two bad choices – but how?

Let’s start with what isn’t feasible.

False hope #01: Getting a really good deal from the EU

The idea that the EU will give the UK a preferential deal on the terms of leaving, or that the Prime Minister and her team will be able to screw a great deal out of Brussels is pure fantasy. Even if it weren’t for the fact that the May government is one of the most incompetent in recent times – an achievement given we’re just leaving the Cameron era – the UK has nothing in the way of bargaining chips. May has allowed non-UK EU citizens living on these shores to be treated as such for many months, presumably thinking this would provide some sort of leverage over proceedings. The realisation appears to have come of how callous and counter-productive such a tactic would be, and so the thinly veiled threat has, for now, been more thickly veiled. The letter which May wrote informing the EU of the intention to leave suggested that non-cooperation on security maters might follow from being on the receiving end of rough treatment. This cack-handed attempt at brinkmanship has already been undermined by the tabloids who have got all fired up on ship-issue rum and thoughts of Gibraltar.

The only ‘deal’ on the table is that we’re packing our bags and handing in our keys. Keeping the best bits of our relationship with Europe, whilst concurrently leaving the EU and giving up obligations like paying bills, is an impossibility. The status quo is dead, and there isn’t at rose-tinted version of it we can now inhabit. Or, put another way, anyone who says we’ll get a great deal from the Brexit negotiations is either a liar or an idiot.

False hope #02: Staying in the EU anyway

On the other hand we are definitely leaving the EU within 2 years. Triggering Article 50 confirms as much. Even if the legality of revoking that action were to be made clear, the political momentum is behind Brexit, and would take a generation to turn around, not 24 months. The desire to turn the clock back is a very understandable one – but it is as unfeasible as the desires expressed at the other end of the argument. While the relevant acts of parliament could be repealed and some Euro leaders persuaded, that would do nothing to erase the shared national memory of the referendum result. Genuine political moments are rare, but June 23rd 2016 is unquestionably one. Politics is concerned with choices in response to the prevailing realties of life, not a willing denial of them.

One possible variation is the idea of a referendum on the terms of the eventual deal: a so-called ‘ratification referendum’. Consulting and involving the people on what the future relationship with our continental neighbours will be is an excellent idea. Another referendum would be a blunt-instrument way to do that. However, it would yield one of two results. Most likely, the Tory-negotiated deal would be rubber-stamped by the British public. That’s because the second option – of rejecting the deal – would mean either:

  1. effectively nullifying the result of the first referendum, or
  2. that the government would have to go back to the negotiating table and the whole thing would drag on, or
  3. that the country would crash out on WTO terms.

None of these are happy scenarios.

The other way of consulting the British public would be to use the traditional method of debates in parliament, except it is partly the utter, and largely justified, contempt that people feel for Westminster politics that got us here in the first place.

So, why not seize this political moment to demand to be consulted, and bring about a new political reality that enshrines much of what people liked about the EU, while healing some of the wounds that caused people to vote Leave in the first place. Sounds too good to be true? Well here goes.

5 reasons we need a constitutional convention to draw up a Post-Brexit Blueprint

1 Northern Ireland

Most important and serious is the issue of Ireland. The Northern Irish border is the only land border between the EU and the UK. The free movement of people across that border represents the most striking illustration of how open, trusting communication between nations, especially those previously at war, is the best possible medicine. The peace process, one of the few genuine advances in the last 30 years of British politics, is in real jeopardy as a direct result of the great uncertainty brought about by the referendum result. The issue of Ireland was given almost no space at all in the run-up to the vote, and it is no surprise at all that the vote to remain in the EU was backed by 56% of the population. What to do about this very real problem needs to be the first priority of the Brexit process. It will not be straightforward and will involve dialogue between all parties concerned.

2 Scotland & devolution generally

Another national issue thrown up by Brexit is the question of Scottish independence. It is common sense that Scotland should be allowed to at least ask the question of if it should be separate from the rest of the UK. Scotland voted to remain by the huge margin of 24%. Forcing a country into radical constitutional change against its clearly expressed will is not politically viable.

Looking ahead to a possible future referendum reveals the problems that would lie ahead. Scottish Nationalists want their country to be a self-governing nation, but might end up cursing what they gained if they won a vote. Severing ties with their nearest neighbour, trading partner and currency area would be as tough a gig as Brexit will be for the whole of UK. Doubtless, Scotland would pull through eventually, but in addition to that there is the prospect of having to negotiate entry into a potentially much weaker EU.

Alternatively, if a future independence referendum went the same way as the last one, then it would have the effect of giving the Tory Brexit plans a Scottish seal of approval – whether that were the intention or not. Furthermore, the SNP might end up politically damaged as a result, which would mean even less opposition to Tory rule in the UK for even longer. If a vote to keep the union ended up strengthening the SNP that would probably yield the same result, by splitting the non-Tory vote across the county, given Labour’s past squeamishness about doing business with the SNP.

What to do then? A better way than going for independence, surely, would be for the UK to go down the route of proper federalism. Scotland would gain powers, government from Holyrood could largely run the affairs of the country while maintaining formal political and economic ties with the rest of the UK. The Northern Irish assembly could get the same treatment, potentially helping the situation there, and Wales too could get more formal powers and raised status. Finally, England would get a separate parliament, which logically should be based out of London which could help heal the North/South divide, and shift the centre of economic gravity away from the South East.

In the post-Brexit world there are no panaceas, but a move towards federalism is as close as it gets.

3 Our relationship with Europe

The UK is geographically in Europe and always will be. Geopolitics being what it is, that has permanent political and economic consequences for the UK. In short, we need a relationship with Europe. What that will be is very unclear, and is not best left to a the bunch of flag-waving ideologues currently back-seat driving the Tory party. The EU referendum didn’t specify what kind of Brexit was on the table – so now the die is cast specific options need to be put to the people at some point. As Angela Merkel pointed out, this can only happen after the divorce part of Brexit has been put through, which will easily occupy all the negotiating time available over the next two years.

At the appropriate time though, a properly convened constitutional convention could sort this question out, whilst also looking at the idea of federalism discussed earlier.

4 Our laws, rights and freedoms

Before we get to that point though, there is the issue of what to do about the laws of the land that are about to get sucked into the Brexit black hole. Much legislation on fairly routine, though important, areas of life are imported directly from the EU. (It’s worth remembering this isn’t a conspiracy, but something the country signed up to and had a democratic say in.) Once EU law ceases to apply something will need to replace it. Environmental regulation and employment law needs to be there, even if only so people know the rules of the game.

It’s the Tories who are holding the Brexit ball, and are in control of parliament, despite Theresa May’s wafer-thin, inherited majority and lack of personal mandate. Our centralised, winner-take-all system – the Westminster model – has gifted the Conservatives a once-in-a-century chance to re-write the social contract. Given May’s authoritarian instincts, the weakness of her leadership in the face of her own party’s extremists and the complete lack of effective political opposition, this re-jigging is not going to be pretty.

The government, and May in particular, needs a direct mandate for these changes and there should be a general election at the very least. The scale of the coming changes requires something rather bolder though: that same constitutional convention with a mandate to explore what a proper 21st century European country should look like.

5 Electoral reform

One positive point to come out of the referendum vote was that it did at last engage people. They came to the ballot box, because they knew their vote would have a direct impact. Some form of proportional representation needs to be put in place for elections to our political bodies to hold the attention of those whom they seek to represent. People are not stupid, and they know First Past the Post is a carve-up. Any new parliament or assembly set up in recent years – like London mayoralty – uses PR, because the alternative would be indefensible. So why is it good enough for the Westminster parliament? Only because it suits the Tories and, until recently, suited Labour too.

Whilst we’re changing the voting system, why not shift the voting age as well? 16-18 year olds are just as capable of making choices as 18-19 year olds and will be affected for longer by those choices, which is especially relevant given the decision to leave the EU. There’s also ample evidence that having early and frequent votes makes people much more likely to keep voting later in life.

A post-Brexit blueprint should be drawn up by a properly convened and legitimate constitutional convention.

Brexit & Sovereignty: Outdated, and Out of Control


Brexit: whose control is being taken back, exactly?

It’s not the 1800s anymore.  Britain is in many, many ways no longer the country it was during the Victorian era – no children in workhouses, no rampant cholera and no being ruled over by a moribund aristocracy. Yet the political idea that underpinned the earthquake of Brexit is one minted whilst the British empire was at its height. The Victorian notion of sovereignty was appropriate whilst Britannia ruled the waves and subjugated millions of people in colonies across the globe. Not only is the concept of monolithic British sovereignty rooted in imperial conquest no longer possible, it’s no longer desirable. We need to update the idea of sovereignty for the 21st Century – and urgently, too, now that Brexit has raised the question of what our country’s relationship with the world will be in the future.

How have we come to be in the position of jeopardising peace and prosperity for this anachronistic political idea? To understand the enthusiasm of Gove, Davis, Farage and others have for the out-dated Victorian form of sovereignty, it is useful to consider the way in which Brexit came about.

Telling tales about Europe

The victory of the Eurosceptics was long in the arrival. Their path to the success in the referendum vote was ultimately that they persuaded the political class and a section of the public of their story about our membership of the EU. On their telling the EEC, and later the EC, had been a trading bloc the UK had joined willingly to satisfy narrow economic self-interest. Only later in the treaties of Rome and Maastricht did the EU bureaucrats over-reach themselves and undermine our national power – our national political sovereignty. What had started as a limited economic project had supposedly been morphed into a political one. The nefarious Brussels apparatchiks were aided and abetted by a fifth column of the British metropolitan elite: the PC brigade, multicultural-apologists, unpatriotic EU-appeasers. Leaving the EU became a national imperative. Anything less was surrender.

This Euro-tale is, of course, a myth. The UK’s membership of the EEC was a decision that came out of a much more pressing national imperative. By the late 1960s, once the fact of British imperial decline was fully apparent – the Suez crisis, IMF loans and all – it was urgently necessary to club together with Europe to pool resources and interests in order to guarantee future prosperity. On this measure the UK’s membership has been an unqualified success. For the period 1973 to present day the UK has  outperformed comparable economies by something like 23%.

Furthermore, membership of the European club was always a political as well as an economic decision. Britain’s diplomatic heft and status was always enhanced, not diminished, by acting in more generally in concert with our continental neighbours. The UK gained a strength in numbers that could not be gained by acting alone. Is this to ‘talk down’ Britain? In now way – it is quite straightforwardly a recognition of the realities of 20th and 21st century political life. What’s more the UK often led the way in Europe, rather than being dragged along in the wake of a runaway Franco-German tugboat, as Brexiteers would have us believe. The pooled sovereignty of the EU was the antidote to war and strife of the beggar-thy-neighbour politics dating back centuries. Joining in was a positive move, a move away from the antiquated notion of indivisible political sovereignty and the ‘splendid isolation’ of the imperial age.

As of today, the clock is ticking on the UK leaving the EU. Following the referendum vote, Nigel Farage declared June 23rd 2016 ‘Independence Day’ for the UK. This deliberately invokes the idea of Britain as a vassal state and the EU as the oppressive master. That’s not just an erroneous interpretation – it’s plain lie. Leaving the EU means the repatriation of some – not all – political power that our country willingly gave up, as part of an eyes-open deal. How that repatriated power is distributed once back on these shores is completely up for grabs. In the future many people taken to bashing the EU may come to realise the very real benefits they themselves gained from the UK’s membership of it.

Who Rules Post-Brexit?

Where will power settle once the UK has left the EU? Students of physics know that energy is impossible to destroy; it can only be transferred from one energy system to another. Political power operates in a similar way. Leaving the European Union will mean removing some of the political power we have invested in the pooled sovereignty of the EU’s institutions. Where will that political power flow to once we have definitively pulled out? The government’s plans for triggering Article 50 and early negotiating stance have made this increasingly clear: not to parliament, and not back to the people.

Just this week it has been confirmed again that immigration – that totemic referendum issue – will probably not fall. That much is common sense. There are jobs to be done by migrant workers, and migrants will probably do them. What will have changed after 2019 is who is in charge of those people’s lives and how much freedom they will have to build families, enjoy stability, live a decent human existence. Whilst currently Polish builders and English engineers have had the ability to come and go across Europe freely, the primary factor in their decision making is whether moving would benefit themselves and their families. Now people will be bundled up into quotas, checked, re-checked and scrutinised if they want to cross our border – in or out. Who is going to benefit from this new arrangement, of treating people as so much economic flotsam? The same people benefiting from the grotesque inequalities with which we live today, those who have the financial means, the political influence and the social capital to profit in these lean times. Hard borders are never built for ordinary folk.

Nor will leaving the EU will not be a straightforward, neutral process. The central fallacy of an in/out referendum was that the degree of our political and economic cooperation across an entire continent could be reduced to a binary choice. Disentangling ourselves from the EU will mean writing afresh laws and guidelines for the many, many areas of life where we had shared out responsibilities with our Euro-neighbours. These range from migration to agriculture, and from employment to the environment. Will the new UK rules on these things be politically benign, rather than ideologically-charged? They will not.

The government is engaged in an attempt through the misleadingly named ‘Great Repeal Bill’ to sweep through unprecedented changes to the laws of the land. Brexit will provide the pretext for a radical rewriting of the British social contract. May’s government wants to legislate in the broadest possible terms and then allow crucial decisions to be taken government ministers by employing powers of delegated legislation – these are the so-called ‘Henry VIII powers’.  This will mean that many replacement laws will have had the minimum of democratic, parliamentary oversight. In this very first act of leaving the EU the government shows its hand – championing the idea of national political sovereignty whilst bypassing the one body that gives voice to the powerless. Parliament may not be popular, but it is all that stands between the government and an elected dictatorship. Brexit means that 21st century Britain could end up with a 19th century ruling class – all powerful and totally unaccountable. Theresa May has taken the referendum vote as mandate for a hard Brexit. What logically follows is a hard, Tory Britain.

On her tour round Britain this week Theresa May has claimed that the four countries of the union are an “unstoppable force”. On one level it’s just untrue: the rest of the world could quite easily ‘stop’ the UK economically or militarily if it felt the need. The choice of words is more telling though. The fantasy scenario the Prime Minister wishes to paint is one based on ‘force’ and being a totally free agent on the world stage. If that isn’t a subliminal evocation of Britain’s imperial past then nothing is.

The UK collectively realised we were no longer an unstoppable globe-straddling Great Power more than half a century ago. If we need a reminder of this fact, we will shortly be receiving one, or several. May’s negotiating strategy appears to be not wanting to negotiate; such a situation simply will not stand up against reality. Any lingering notions of unfettered British sovereignty will start to look fairly ridiculous over the next 12 months. It is an urgent task to now provide an alternative vision of political power on these islands, and on this continent.

 

Next week: how this can all be avoided

IMAGE: Nigel’s Ascent

trump-farage-lift

By thine friends shall ye be known, Nigel.

It’s an image that isn’t going to go away in a hurry. I expect to be seeing this for a long time to come.

Firstly, Nigel Farage. His expression gives a lot away. It is one of deep, child-like joy. His mouth is wide open like a toddler delighted by its own reflection for the first time. He is more pleased about this than he is about the vote to leave the European Union. What was Farage’s reaction to winning that ‘prize’, the culmination of all his political work? To immediately resign, saying he wanted ‘life back’.

Here, in Trump’s ridiculous gold lift he looks liberated, and overjoyed. It’s because Trump’s victory – so plain in what it represents – is a much more clear validation of Farage’s life view. To be male, white, racist, misogynist and suspicious of the unfortunate is to be back on top. Nigel’s reaction to a Trump victory? To look giddy about becoming US ambassador to the EU in a new administration. So much for loving Britain.

Which brings us to his new political idol, the unreal Donald Trump. His is the practiced grin of the huckster, the salesman who is about to open his battered suitcase of knock-off dreams and shop-soiled populist-policy snake-oil.

The expressions say much, but for the final word, look instead to their hands.

Farage’s is 100% deferential. He gestures towards the bigger man, acknowledging his greater status, the very distillation of his unseemly haste to cross the ocean, forgetting – or jettisonging? – even his Remembrance Sunday poppy.

Trump just gives a thumbs-up. The ultimate, don’t-care, who-is-this?, got-somewhere-to-be, brush-off, funny-little-Brit!, who-are-you-again? gesture of low effort dismissiveness.

By your friends will we know you Nigel. But face it, mate. Once you’re out the lift, he’s behind your back, laughing with his real buddies.