A Brief Word on Brexit
Sean Gabb
1st February 2020
(Published in The Libertarian Enterprise, 2nd February 2020)
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Yesterday evening – that is, the 31st January 2020 – at 11pm GMT, my country left the European Union. We did so after four years of heated and often hysterical argument. Nothing much seemed to have changed this morning. I went out shopping, to see the same people buying the same things at the same prices. Since we are now in a transition period, lasting till the end of this year, in which we remain within the Single Market and subject to the rules of the European Union, it would have been odd if anything visible had changed. Yet, if nothing visible had changed, one very important thing has changed.
The ruling class has suffered its first serious defeat in living memory. The coalition of politicians, bureaucrats, lawyers, educators, media people and associated business interests who draw wealth and power from an extended state was committed to European Union membership. This coalition was never uniformly committed to membership. Some elements were strongly committed, others only mildly. But all were agreed that membership was good for them, so far as it blurred the lines of accountability and gave the exercise of power a supranational appearance. This was the position before the 2016 Referendum, which was not expected to go as it did. When the result was to leave, ruling class support for membership strengthened. Long before it ended, the referendum campaign had become a vote of confidence in the ruling class. Losing this vote was a shock. The people could not be given what they had asked for. It would set a precedent. Give them that, and they would start believing they lived in a democracy where votes counted for something. If this happened, the people might be inclined to start asking for other things – all things variously unwelcome within the ruling class.
The ruling class response to losing fell under two headings. One was to deny the validity of the vote and to demand another, and to make sure that this one was rigged in favour of remaining. The other was to deliver an exit so partial that it amounted to continued membership, and that could be upgraded to full membership after a few years of propaganda. These responses eventually merged into a single project of dragging things out so long that the people would get bored and stop demanding that their voice should be heard.
These responses failed. The people had spoken, and they continued speaking – eventually giving the Conservatives their biggest majority in a generation. Because of this, our departure yesterday was more definite than had previously been imagined. Immediately after the Referendum, I think most of us would have accepted a slow disengagement – perhaps including ten or twenty years of remaining within the Single Market, though out of the customs and political union. The next three years of bad faith killed any taste for gradualism.
I have mentioned the bad faith of our own rulers. But the European Union also overplayed its hand. It could have put on a sad face, and entered into one of those “constructive dialogues” that give negotiating parties nearly everything they think essential, and leave no bitter aftertaste. Instead, the central institutions and the member states put on very hard faces and insisted on treating us like a defeated or beggared nation with nowhere else to turn. It may be that they wanted to make us an example to any other member state inclined to leave. It may be that they saw the political deadlock in London as an excuse for paying us back for everything we had done to them since Crecy and Agincourt.
And so we are leaving. Since yesterday, we have been outside the political union. We have another eleven months inside the economic union. During this transition, we can try to arrange a satisfactory close relationship. If this cannot be arranged, we are at perfect liberty to walk away and trade with the European Union on the same basis as we trade with Ecuador and Vietnam.
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A further point is that the series of political crises we have faced since 2016 has strengthened trust in our governing institutions. We are most definitely not what we could have become had the right choices been made after about 1910. Even so, we can take pride in the nature and resolution of the crises we have faced. Our ruling class did not want us to leave. It liked the European Union for sinister reasons. It may also have believed continued membership was in the public interest. To keep us in, it used every legal device the Constitution allowed. It ripped up centuries of convention in the House of Commons. It poured out a flood of propaganda. It appealed repeatedly to the biased judges of the Supreme Court. Yet it never stepped actually outside the law. Nor did my side lose its head. Given the nature of the dispute, there are few countries that would not have descended into violence or other illegality. In my country, we were finally allowed a general election, in which the votes were freely cast and honestly counted. The voice of the people could be shouted down after June 2016. It was not shouted down after December 2019. We left last night with a few peaceful demonstrations of joy or disappointment. Today, it was shopping as usual.
So far as libertarians and conservatives are at war with a bloated managerial state, we have won just a single battle. It is, however, a potentially significant battle. Since the end of the Cold War, we have been told with increasing confidence that we were living in a “post-democratic age,” where government would move inexorably upwards to the supranational level. Well, the people of a rather important country have now established that their voice must be heard and that government must be accountable to them.
I will end by slightly adapting the words of Pitt the Younger after the Battle of Trafalgar: “England has saved herself by her exertions, and will, as I trust, save the world by her example.”
The people of my country have stood firm. How firm will the American people stand this coming November?
Well, this is a good analysis if, and only if, you take everything at face value. I think we would be (and most be are in fact) very foolish to do so. The facts are that Boris has enthusiastically signed us up to a Withdrawal Agreement which he had previously described as ‘vassalage’. On reaching number 10, the first thing he said was that the Withdrawal Agreement was ‘dead’, adding “It’s got to go”. Yet now he has enthusiastically endorsed it, with a mere fifteen pages amended. Even more puzzling, the entire Party – including the so-called ‘Spartans’ has wholeheartedly embraced an agreement which had previously broken all records for the scale of its defeat in the Commons.
Yes, I know the ‘Backstop’ is no longer with us, but it has been replaced by a border down the Irish Sea, which is hardly enough to add a sheen to the ‘turd’ that Boris said Mrs May was trying to polish.
Given Boris’s history of making reckless promises uttered in the strongest possible terms, only to be carelessly broken five minutes later, I think we would be very unwise to believe his assurances that if he cannot negotiate a decent trade deal, he will just walk away.
The way I see things, the EU now has us exactly where they want us. By abandoning the admittedly ghastly Lisbon Treaty and replacing it with Boris’s ‘oven-ready’ deal, we have lost both our representation in the EU institutions (for what that was worth), and, more importantly, our exit clause. It is my belief that the EU will keep turning the screws during the Transition Period and extend it till they have achieved their objective. We may squeak that this is illegal (and I’m not clear whether it is or not), but our protests will be adjudicated by the European Court of Justice.
From where I’m standing, this does not bode well.
I agree with Hugo that it is short-sighted to take things at face value. But if we do that, Johnson so far seems less bad than any of his predecessors since the 1980s. Nevertheless, he is still a politician, and therefore not to be trusted. And if Hugo’s information is correct, the prognosis does not look good. If the “transition period” gets extended by even a single day, we’ll know we’ve been screwed.
I think I fall on the scale of optimism versus pessimism somewhere in between Sean and Hugo, but closer to Hugo. Myself, I will not be satisfied that Brexit has happened until neither the EU as a whole, nor the ECJ in particular, has any say at all in UK affairs. Only then will there be any possibility of burning all the bad regulations spawned by the EU and successive bad parliaments, and setting a better course for the future.
And one thing I can’t agree with you on, Sean, is that recent events have strengthened trust in the UK’s governing institutions. Indeed, I think that what the Mad Parliament of 2019 tried to do to us has made people less trusting, rather than more. As long as Johnson’s honeymoon lasts, the bad guys will probably stay quiet – not wanting to be seen as the anti-democratic thugs they are. But when his halo slips… and it will… I expect they will be after him (and us) again.
I disagree. We had a bad Parliament that wouldn’t deliver Brexit of any kind. We replaced it with a somewhat better Parliament that has given us a reasonable Brexit. That is how the textbooks say the system works. That is how it has worked. What happens next is another chapter.
Agreed. On the point about the ECJ, subjection to that jurisdiction is a treaty obligation for so long as we are in transition. I find this unremarkable. Nobody quibbles about a sovereign state being subject to the European Court of Human Rights if we have signed the corresponding Convention.
The Withdrawal Agreement is not ideal, agreed, but we’re not taking things at face value if we accept political reality and forgo one-tenth of the loaf – for now. We have withdrawn from the EU civically and politically, meaning that the creeping provisions of the European Treaties are nullified and no longer part of our institutional architecture. I don’t pretend that we can trust the Prime Minister and there is scope for a dilution of sovereignty, so the fight is not over, but this is only going in one direction: next we withdraw from ECJ jurisdiction altogether and re-gain the ability to sign our own trade agreements and impose tariffs. We are not physically locked with Europe, so the Fate of Switzerland can be avoided for us.
“He who has nine-tenths…..”
“The Withdrawal Agreement is not ideal, agreed, but we’re not taking things at face value if we accept political reality and forgo one-tenth of the loaf – for now.” “He who has nine-tenths…..”
‘We the People’ demanded and got a referendum. We the People voted to leave the EU. The politicians said no you can’t. You are happy that we have nine tenths of what we demanded and were entitled to.
I have a proposition; you lend me a thousand Pounds. I will pay you back the sum of nine thousand Pounds in four years’ time. On your terms that would be a win for each of us.
Furthermore, it is manifestly NOT unremarkable that we have placed ourselves under the jurisdiction of the ECJ while the Withdrawal Treaty is being implemented. It is highly remarkable for one party to a treaty to place itself under the jurisdiction of the other party. Yes, their jurisdiction only applies during the Transition Period, but it will be up to the ECJ itself to determine how long that period shall be. The EU can and probably will try to extend it. We will undoubtedly cry ‘foul’. And who is the referee? Why, the ECJ, who else.
I am not sure why you mention the ECHR, as this has nothing to do with anything right now. Unlike the ECJ, it is not an EU institution, and it is indeed unremarkable, if undesirable, for us to agree to be bound by its terms.
You say “the creeping provisions of the European Treaties are nullified and no longer part of our institutional architecture.” That is incorrect. We remain subject to all existing Directives and Regulations, and also to whatever new provisions the EU may dream up during the next year or however long it takes for them to screw us over.
It would be nice to believe that Boris will tell them all to get stuffed come December. But based on past performance it would be unwise to bet on it. In fact I AM betting on the very opposite – as soon as William Hill decide whether to accept my bet.
But Hugo, the notion of nine-tenths isn’t merely that I accept nine-tenths. The point is that the core objective of leaving has now been achieved and the rest can follow as we are now in a commanding position. Furthermore, we should bear in mind that political dynamics work in both directions. Yes, the Prime Minister isn’t a true Brexiter, but he is pro-Brexit and the country is, in a majority, pro-Brexit and a pro-Brexit party now controls the House of Commons.
This is the political reality. In reality, we will have to accept some influence from the EU, just as we will have influence over the EU. But the negotiating balance has changed. Whereas previously, the EU more or less dictated the pace through collaborators (I would say traitors) here, now Britain has the upper hand. My prediction is that some sort of trade deal is negotiated based on mutual recognition or equivalency, along similar lines to what Switzerland has, but we will be less tied-in to the EU as we’re not physically locked to the Continent and for other cultural reasons the Continent has less influence here.
Anyway, your analogy actually underscores my point, even on its own terms. I assume there’s a typo in your reply and you meant that I lend you ten thousand and you give me nine thousand back. In that case, I’ve lend you the money voluntarily and under full knowledge and I have to accept the risk.
Now, let’s say somebody else less trustworthy than you steals the nine thousand pounds from me. If my professional advisors tell me that, realistically, I can only hope to recover eight thousand one hundred pounds from the scoundrel, then I’ll take the rebated amount. I won’t hold out for all of it just on principle.
And I can do it without prejudice because circumstances change and it may be that I can also recover the remaining thousand, plus interest and fees, at some later point.
I know the ECHR is not an EU institution. I was making what I believe is a valid analogy. Do you actually carefully read my posts before you come up with these responses?
I am Hard Brexit or Clean Brexit, or whatever you want to call it. Please bear that in mind before you start launching off on emotional tangents. Debating/discussing things with Remainers is very frustrating and annoying, but I have to say, the same can sometimes be true of Leavers.
This has not been a good chapter in this country’s history – I accept it’s the fault of Remainers and the media, who don’t respect the British people and don’t listen. But we are where we are.
To return to the ECHR business, I am still not clear why you mentioned it, as there is no analogy. Unlike the ECJ, the Court is not ‘owned by any one party; it is a supranational court which sits in judgement on the signatories to the Convention. The ECJ, conversely, is ‘owned’ by one of the signatories to the W.A, Under Boris’s ‘fantastic, oven-ready deal’, one of the signatories to the treaty will sit in judgement on the other. I wouldn’t describe that as getting ‘nine tenths of what we wanted’. To me it looks like a freakin’ disaster. I most certainly cannot agree with you that we are now in a “commanding position”, if the other Party will sit in judgement on whether or not we have used our ‘best endeavours’ (as defined in the P.D.) to agree a trade deal with them. In the highly likely event that a dispute does arise in this area, the court (which by its own terms of reference is a political court) will naturally rule against us. My guess is that the EU will use this as a pretext to grant themselves an extension of the Transition Period, during which they will toy with us as a cat does with a half-dead mouse.
I can’t say I’m surprised that the EU demanded to be judge and jury in any disputes (and if they didn’t intend to use this powers against us, why did they include it?). I am surprised, although perhaps I should not be, that Boris willingly agreed to it. And I am utterly astounded that every man-jack in the Conservative government – down to every single ‘Spartan’ – now has the gall to try to convince us that this sell-out is a fantastic deal.
We are entitled to demand ten tenths of what we voted for, not settle for nine tenths. Otherwise what is the point of voting?
The EU can’t grant themselves an extension. An extension would be by agreement between the parties and can happen only once.
I know that the ECHR and the ECJ are not the same thing. I was offering an analogy. The point is that if we are to be domestically subject to EU regulations for a transition period, then we can be ultimately subject to the EU’s Court, but it is only for a transition period. The government has made clear that it will not continue.
It’s not a “fantastic deal”, I think the Tories’ handling of all this has been absolutely disgraceful, but the current situation is light years ahead of what we had before and I believe can only improve as long as the right people are running things on our side.
There is no longer the political appetite from the British side to integrate Britain into the EU and Britain has a strong position in the negotiations. It’s unclear what line the EU will take, whether they will prioritise regulatory conformity over trade. We will have to see the outcome later in the year.
Certainly, I will not be happy with anything less than Britain out completely. They can, if they wish, negotiate a free trade agreement or arrangement, but that must not require domestic regulatory alignment or continued subjection to the ECJ, and I see no reason why it should. I think the main pressure to cave to the EU will come from financial services and similar.
I believe the EU can, and will, extend the Transition Period unilaterally. If we challenge them, it will be referred to the ECJ. And that is the problem.
There is now some kind of law on the statute books, I believe, which ‘bans’ any extension of the Transition Period. Because of sloppy reporting, it is difficult to know what this law actually says, but I rather suspect that it prohibits PARLIAMENT from requesting an extension. Clearly the UK Parliament has no authority over the EU.
The plain fact is that we are in a far worse position now than we were last month. We are bound by the W.A. and have lost our escape route as this treaty, unlike Lisbon, has no exit clause. We have lost our representation in the EU institutions, including the ECJ, which now has supreme authority over us. And if I am right, and the EU DOES extend the Transition Period, this foreign court will continue to have us over a barrel for as long as it wishes. Indefinitely, if it so pleases. This is not going to end well, despite any superficial appearances .
Out of interest, if there had been a second referendum, I would have had to vote to stay in the EU and/or revoke our Article 50 application. Then at least our options would have remained open. Now they are closed off and the EU has us just where they want us.
I think you are being overly-pessimistic. For Britain, the ultimate authority over European Treaties is now Parliament. That’s the point. We are out of the EU, so the matter has shifted from simple conformity to political interpretation, which is the norm with treaties between powers.
Now, nothing is guaranteed, but the plain fact is that the EU cannot extend the transition period unilaterally. Even if it were a matter for the ECJ, that Court could not allow it since it would go against a plain reading of the treaty itself. The ECJ is not a law unto itself, and anyway, ultimately sovereignty is with Parliament. We could simply abrogate from the ECJ’s jurisdiction if we don’t like its rulings, and there is no executive authority to deal with us otherwise.
We no longer accept ECJ jurisdiction because it is law (per Factortame), we accept it because it is treaty.
There’s a fundamental difference between the two ideas. At present, the difference may only be in principle, but gradually it will take on practical shape as we diverge further from the EU. EU law is no longer domesticated, and as the government has indicated, there is no reason to re-domesticate it.
Yes, I would have done things differently and I am outraged by the conduct of the Tory Party. But I’ve never voted Tory.
You say “… the plain fact is that the EU cannot extend the transition period unilaterally.” It isn’t plain to me – what is the source of your confidence? Are you quoting the W.A. or the P.D. or what?
You have lost me with the following statement of yours; “We no longer accept ECJ jurisdiction because it is law (per Factortame), we accept it because it is treaty.”.
Our acceptance of the supremacy of EEC/EC/EU law has always been a treaty agreement, as is the W.A.. At the time of Factortame it would have been the Treaty of Rome as amended by the Single European Act. But as Justice Laws affirmed in the ‘Metric Martyrs’ case, Parliament retains the authority to re-assert its authority by resiling from the Treaties.
And I’m afraid I don’t follow your line here either; “EU law is no longer domesticated, and as the government has indicated, there is no reason to re-domesticate it.”. For starters, I couldn’t give two hoots what the government has indicated, but the fact is that we remain subject to all existing and future EU Regulations and Directives for the duration of the W.A. And that is ultimately in the hands of the ECJ. Which I think is where I came in.
I disagree with your entire approach here. We are now into international politics, which are influenced by law, not determined by it. The British Government has unity of will and the ability to walk away at any time. The dynamics of withdrawal fundamentally shifted in December. The value of what was agreed in the withdrawal treaty depends largely on what the British Government chooses to say it is.
Sean – I wish I could share your optimism. You say the British govt has the ability to walk away at any time. But that has been the case for almost four years already. Mrs May said “No deal is better than a bad deal”. But look at the ridiculous lengths she went to in order to ram her disastrous deal through Parliament. She promised faithfully, no fewer than one hundred and eight times, that we would be leaving the EU on 31st March 2019. Then it was April 12th. Then October 31st, whereupon she handed the script to Boris, who said the same thing only an octave lower. Boris also told us the Withdrawal Agreement, the one he has just ratified, was ‘dead’, adding “It’s got to go”. But it didn’t go. Fifteen pages were amended and it is now binding on this country, with the other signatory acting as judge jury and executioner if we stray from its provisions.
You say “The British government has unity of will”. I don’t think so. They have unity of speech, but I fear that behind that united front, things are not as they appear. For over sixty years, the Conservative Party has been utterly committed to our EU membership. That is the one principle to which they have clung while cheerfully jettisoning all others. You only have to look at the fate of the last Conservative leader who dared challenge this commitment.
I would love to be proved wrong, and we shall know soon enough, but I regard anybody who tells me that we are safe ‘because Boris says we are going to walk away’ as a fool.
I’ll believe it when I see it.
As far as I can tell, nobody here is saying that Britain is safe and it’s all a dead-cert. I agree that anybody who believes anything Boris Johnson, or any other politician, says is a fool.
We are out and that’s light years in front of where we could have been. I’ve said it often and it bears repeating – just a few short years ago, telling people that you opposed Britain’s membership of the EU would have invited derision and have had your card marked as a loony. It was not a mainstream position. Now, not only is it a mainstream position, but the objective has in principle been achieved and fuller attainment of withdraw and sovereignty is in hand, with allies (if not exactly friends) in power and opponents on the back foot.
The significance of the simple principle of being out cannot be overstated. It is a huge blow to those who want to do away with Britain. Whether it is also a blow to those who want to do away with national identities and popular sovereignty in general, in Europe and worldwide, I’m not so sure. People say it is a setback for the EU, but I think the EU is stronger without us, even if they don’t realise it themselves institutionally. It is a setback for the more moderate/conservative federalists, like Juncker, but for the enthusiasts like Verhofstadt, Brexit is a purple patch. But we’ll see. Maybe a successful Britain outside the EU will inspire radical Eurosceptic/sovereigntist movements in other countries and cause structural disruption?
The problem domestically is that we are still stuck with a neo-liberal and culturally metropolitan political order – both Labour and Conservative. They dominate the mainstream media, journalism and politics. They dominate the putative vehicles of Left and Right. They dominate the Senior Civil Service and public agencies. They dominate the law and control the police. They dominate social institutions and they tend to be the ones who are most active and proactive in local communities. Yet they are a minority and their views do no typify most people in this country, especially Britons (i.e. white people).
They include Prime Minister Blow Job, who, if he had his way, would turn the rest of Britain into a version of London. He is of mixed-race ancestry, not an an indigenous Briton, so it is hardly surprising. His thinking is in sync with the people he putatively opposes, and he now has the opportunity to tie us to the EU through a treaty. So, allowing for the victory of Brexit, a question arises: What is the next move?
I don’t have a TV, but it has come to my notice – through this site – that a posh, lisping, nitwit who claims to be a comedian has become famous for his ‘anti-wokeness’. These terms ‘woke’ and ‘anti-woke’ are just London media terms. They mean nothing in the course of reality.
Some of the things that the social liberal/metropolitan Left/woke people say are actually true and valid. Laurence Fox is privileged. I know he is just by looking at his physiognomy and listening to his posh squeaky voice and his lazy, condescending, received opinions.
Even in the matter of climate change, the ‘woke’ people have a point. I don’t personally believe in the anthropogenic global warming thesis. I have read enough to convince me it is not correct. I am also an amateur astronomer, with a special interest over many years in sun spots, which I know quite a lot about, so I am a somewhat informed layman. I don’t believe the AGW thesis is correct. But, the ‘woke’ people do still have a point, that we need to think about things ecologically. It just doesn’t cut it to dismiss their concerns.
The point is this – politics isn’t real at the moment. It is virtual, plastic and managed, with the aid of media.
The Establishment are using the media to blunt and stave off genuine, hard-bitten discussion about the future of this country.