Reversing Article 50

Once the UK gives notice under Article 50 to withdraw from the European Union, can it unilaterally withdraw such notice or is it locked into inevitable Brexit? Article 50 (1-3) states

1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.

2. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.

3. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

A natural interpretation of those words indicates that once notification is given, Brexit is inevitable and the Member State cannot unilaterally withdraw its notification. Four reasons may be given. First, and most importantly. the words of the provision make no mention of the Member State having any such power of withdrawal. Second, the provision does allow for a delay in execution, but requires unanimous agreement of Member States to do so. This may be read as excluding both  the stopping of execution, and a  Member State having the unilateral power of choice. Third, as the institutions of the European Union, and other Member States, will have begun the process of adjusting to such withdrawal, such a unilateral power in the Member State may be thought unfair. The clear tenor of Article 50 is to give the balance of power to the Union, and not the withdrawing Member State. Fourth, the alternative interpretation leads to ridiculous results. Could a member state give notification, withdraw it one day before the expiry of the two year limit, and re-start the entire process on the following day?

The final word on the meaning of EU law is that of the Court of Justice of the European Union. It has been known to take what our civilian friends call a “teleological” approach to interpretation. Politely this means that it will take a purposive approach and may sometimes depart from the plain meaning of words. Impolitely, it sometimes cheats. If it were faced with the question of maintaining the integrity of a the Union if a repentant UK somewhat improbably sought to withdraw its notification, it is not impossible that it could read the words in a way to permit it to do so. Donald Tusk has suggested that that is indeed the position.

(For different views, that don’t seem to me to focus on the words of Article 50, see Auriel Sari and Professor Paul Craig  (page 35 of latter’s paper).)

One point to note about the above is the dissonance between the law and predicting what the CJEU will do. My firm view, despite the eminence of those I disagree with, is that the words of Article 50, and hence the law itself, are quite clear. The uncertainty concerns whether the CJEU will depart from the meaning of the words. Oliver Wendell Holmes In The Path of Law has been read, perhaps unfairly, as advocating the prediction theory of law: law is just our prediction of what the judges will decide. I, by contrast, consider the law, and our predictions as to what judges will do, to be different questions. The law is clear, what the judges may in the end do is not.

Do we currently care? 

Jolyon Maugham QC, who is fast becoming our most important informed commentator on tax matters, is also a passionate Remainer (as, somewhat to my surprise, I have discovered that I am). Currently before the courts is litigation concerning whether the government can give notice of withdrawal under Article 50 without Parliamentary approval. He argues that it is possible that this could turn upon the reversibility of such notification. This is important because if it does, a reference to the Court of Justice will be necessary to authoritatively determine this question.

The Court of Justice has many qualities. Swiftness is not among them. If such a referral were made it could take many months to obtain a ruling, delaying the giving of notice and postponing Brexit. Who knows whether, as the main opposition to Brexit comes from the irresistible economic gravity of the market, this could provide room for a change of course?

For good or ill, this seems very unlikely. It will be recalled that the claimant’s argument is that the government cannot give notice without Parliament as to do so would be to overturn various statutory rights. Can the correctness of this argument turn upon the reversibility of notice?

If, as the government claims, no statutory rights are overturned by the Article 50 process, then the issue of reversibility is irrelevant. As nothing is affected, it doesn’t matter. It is for this reason, I would suggest, that the government has not address the issue of reversibility. It cannot arise as a question if they are right.

If statutory rights would be overturned by Brexit, does this mean that the reversibility of notice becomes a live issue? As any notice would, inevitably, be given by the government, its ability to reverse this decision would still leave the choice whether to overturn such statutory rights in its power. If the claimant’s argument is correct then we would still require statutory authorisation even if the government could reverse itself. Reversibility cannot alter the answer.

So, reversibility cannot be determinative, and so no referral to the Court of Justice is required.

More Brexit in the Courts

 

“Just so I follow, are you saying then, that if on 2 January 1973 the government had changed its mind about the desirability of the EC treaties and their full scope in that time and sought to go and negotiate with the other member states and said well, let’s remove the right of establishment from the treaties, and they might say yes, and that would modify what the EC obligations were; that the government would in fact by reason of section 2 of the European communities act have been disbarred from seeking to exercise the prerogative in that way, ie by approaching other states to see if this he would agree to a change in the treatise because it would be such a fundamental change within domestic law”

-Sales LJ to Lord Pannick in argument

“I am troubled by this, Lord Pannick”

-Thomas LCJ to Lord Pannick in argument

It is sometimes foolish to read too much into the reaction of the bench to the submissions of counsel. Many lawyers will have stories of cases where they are convinced that the judge is for (or against) them, only to have the decision handed down give the opposite result.

However, the above exchange (at pp 108-) towards the end of Lord Pannick’s submissions in the Article 50 Brexit litigation on my reading indicates that the government is going to win.

As will be recalled, section 2 of the European Communites Act incorporates into UK domestic law all “rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties”. The point of Sales LJ’s question is what happens if some of those rights are eliminated under EU law by agreement between member states. Does that require further legislation to be given effect?

The answer is clearly no.

So what if those rights etc were reduced to almost nothing (leaving, say, just a directive on banana curvature in force)?

Again the answer is no fresh legislation is required.

And is it any different if those rights etc are reduced to nothing, as would be the result of the government invoking article 50, which is itself part of EU law?

No.

Derogating from the Convention

 

 

“Much of the litigation we face comes from the extension of the European Convention on Human Rights to the battlefield. This is damaging our troops, undermining military operations, and costing taxpayers’ millions. So I can announce today that in future conflicts we intend to derogate from the Convention. That would protect our Armed Forces from many of the industrial scale claims we have seen post Iraq and Afghanistan. “

 

Michael Fallon, Secretary of State for Defence, 4 October 2016

 

This is nonsense.

 

To understand why, it is necessary to understand why it is now the case that claims can be brought under the Human Rights Act for actions taken by British troops serving abroad. At one time it was thought that the jurisdictional scope of the European Convention was limited to the territorial jurisdiction of signatory states. In the ECtHR’s decision in Al-Skeini this was decisively abandoned and the test became “wherever a state through its agents exercised control and authority over an individual.”

 

Now, my view is that Al-Skeini  was plainly wrongly decided, both according to the text of the Convention and the ECtHR’s earlier jurisprudence. I can, therefore, well understand the government’s frustration at losing. The United Kingdom Supreme Court followed Al-Skeini in determining the scope of the Human Rights Act in Smith v MoD

 

Can this result be bypassed by making a derogation from the Convention? Article 15 provides

 

 

1. In time of war or other public emergency threatening the life of the nation any High Contracting Party may take measures derogating from its obligations under this Convention to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with its other obligations under international law.

 

This provision does not permit a derogation from all the obligations under Convention whenever a signatory state is at war. If it did that would render the result in Al-Skeini redundant. Where the court finds, as it did with respect to the United Kingdom after the September 11th attacks, that there are grounds for making a derogation, this does not provide the state with a blank cheque. Derogating measures must be such as are strictly required by the exigences of the situation. The kinds of claims brought against British troops involve actions that, on no view, are necessary for the conduct of a war.

 

So, whilst it is possible for the United Kingdom under its own domestic law to restrict the application of the Human Rights Act (but in a way that will place us in breach of the Convention as we will no longer be providing an effective remedy for Convention violations as required by article 13), and certainly possible to extend combat immunity as it applies to claims at common law, we cannot simply create an immunity from suit for our armed forces that is compliant with the Convention.

Brexit in the Courts

The arguments for, and against, the legal challenge to the government’s power to trigger the process of the United Kingdom withdrawing from the EU without statutory authorisation are now in the public domain. My view is that the issue is a straightforward one of statutory interpretation, and the government’s detailed ground of resistance are particularly bad in making an easy issue appear complex and difficult.

 

Professor Mark Elliot has set out in detail a critique of the government’s case. Here I briefly summarise for a layperson the essence of what the government’s lawyers have got wrong.

 

Having a Power and Reviewing its Exercise

 

The central problem with the government’s case as presented is that it confuses the questions of whether (1) the government has the power to withdraw from the EU, and (2) the justiciability of the decision to exercise that power. This case concerns (1), not (2). Indeed, as the government has not as yet sought to exercise that power, any litigation on question (2) would be premature.

 

The central objection to the government alone being able to withdraw from the EU is that they would be doing so under the “Royal Prerogative” in a way that would overturn the European Communities Act 1972. As every first year student of constitutional law learns, the Royal Prerogative is , in Lord Bingham’s words, a “relic of a past age.” Can it really be the case that this anachronistic, idiosyncratic, undemocratic leftover could be used to overturn an Act of Parliament?

 

The straightforward answer to this question is that the exercise of the power under Art 50 is not being used to overturn or invalidate the European Communities Act. Art 50 is part of EU law just as much as any other article. Section 2 of the European Communities Act  incorporates into UK domestic law the EU law applicable to the UK “from time to time”. If EU law by its terms ceases to be applicable to the UK, it ceases to be incorporated into UK law. Once two years have elapsed (if not extended) following notice under Article 50, EU law by its own terms ceases to apply to the United Kingdom. This notice can only be given by the government: Parliament is not an actor in international law.This is the result required by the European Communites Act itself, which would be the instrument by which EU law ceases to be incorporated. The Act is not being overruled but given effect to.

 

The Act that brought the United Kingdom into the European Economic Community, will also cause it to leave the European Union.

 

The relevant actors under international law for entering into treaties and exercising powers under them are necessarily governments. This is true of the UK as much as for any other country. There is nothing peculiar, idiosyncratic or archaic about who acts for the United Kingdom in international law: it is the government. However, if the UK government has a particular legal power, the question then arises as to whether the decision to exercise it is reviewable by a domestic court.

 

Courts will not overturn a government’s decision simply because the judge thinks it is the wrong one. The law has given the government the decision to make, not the judge, and the judge will often be in a worse position than the government to make it not having the relevant competence to do so. But this does not mean that government decisions are not subject to any oversight whatsoever. If, for example, the government had decided to invoke Article 50 for wholly arbitrary reasons, because the Prime Minister of the day objected to the colour of Angela Merkel’s hair, would that be reviewable by the courts? It is at least arguable that in such extreme circumstances it should be, even though it concerns a matter of foreign policy, just as other exercises of prerogative power are.

 

The legal effect of the referendum result is to close down any such argument. It is impossible to argue that if the government has the power to exercise Art 50 without further statutory authorisation that it would then be irrational to do so. I think it would be wrong, but that is an entirely different order of question.

 

It is therefore to say the least odd that the government’s case focuses on the second question of justiciability of the (as yet unmade) decision. It may well be that Brexit “is a matter of the highest policy, a polycentric decision based upon a multitude of domestic and foreign policy and political concerns for which the expertise of Ministers and their officials are particularly well suited and the Courts ill-suited.” But so what? That isn’t the issue.

 

 

 

 

The NEC and the Rulebook

I have argued before that it is arguable that the leader of the Labour party must obtain nominations of 20% of Labour MPs and MEPs (currently 50) in order to stand in any election if challenged. It cannot however be said that the contrary position is unarguable on the wording of the rules.

 

What is the role of Labour’s National Executive Committee?

 

The Rulebook

Clause VIII.3.m of the Labour rulebook states that part of the primary purpose of the NEC shall be:

 

to … give rulings … to ensure continued compliance with the party’s legal obligations….and to take action on the advice of the General Secretary to protect the party from actions by organisations or individuals who fail to comply with, or to co-operate with the party in meeting such legislative requirements.

 

As with so much else of the rulebook, this is infelicitously drafted. However, a natural reading of those words is that in case of dispute as to the meaning of the rules, it is for the NEC to decide on the correct interpretation. The purpose of this power is to keep disputes out of court.

 

Where parties have agreed that disputes are to be resolved by arbitration before any court action, and that such a ruling is binding on them, a court will respect this and not overturn any decision simply on the basis that it is not the one the court, if seized of the issue itself, would have come to.

 

So, given that the issue is a clearly arguable one, its resolution should turn upon the decision of the NEC.

 

 

The Lawyers’ “Coup”

Legal action has been commenced to attempt to block any attempt to trigger Article 50 of the Treaty on European Union, and thereby irrevocably start Brexit, without first obtaining Parliamentary approval.

 

My judgment as I have explained before is that this action is doomed to fail. Some serious lawyers disagree, whilst others do not. In practice, one legal smell test is whether, as a barrister, you would be prepared to stand up and argue a point that you personally consider to be wrong. Bad arguments sometimes win, especially if there are other good arguments (or the merits) on your side. On this occasion I consider the argument that an Act of Parliament is legally required to be so hopeless that I would not be prepared to stand up and make it. I don’t myself think the legal issue involved is complex, and so would urge interested lay people not to defer to authority but to think about the arguments for and against themselves (As however I post as an anonymous Mondrian symbol, I would say that wouldn’t I?)

 

That doesn’t resolve the practical question of whether it will be politically necessary to have a Parliamentary resolution. My guess is that it will, and it is completely certain that there will have to be a great deal of consequential legislation in many areas dealing with the domestic law consequences of Brexit. The practical significance of the absence of any legal requirement for legislation to carry out Brexit is that it means that it is unarguable that Scotland has any power to block the process.

 

Given what I consider to be the legal hopelessness of the action, the interests of those pursuing it would be furthered if it were not pursued. Better to leave the legal position uncertain, with apparently serious people favouring your view, than to have the issue resolved against you.

 

A further problem is that the action may be politically poorly judged. It can be, and is being, portrayed as lawyers (who are not popular) financed by the metropolitan elite trying to overturn a democratic decision. More fuel for the Ukip fire. The best tactic for the Remainer is energetic and passionate inaction, while the consequences of Brexit become apparent and the realisation that the desire of German manufacturers to sell cars to us won’t lead to our being able to cherry-pick the bits of the EU we like, sinks in.

 

But, however misjudged it may be, seeking declaratory relief before the High Court is not a ‘coup’. The claim that the people’s will trumps the law is the cry of the fascist. If someone wishes to bring this claim, let them, and lawyers are not to blame for that. In these days of apparent chaos and political conflict, hold on to the rules.

 

Article 50: Will it ever be invoked?

Article 50 is a one way street. Once it is invoked the Member State will leave, either once a withdrawal agreement is reached or after two years, whichever comes sooner. There is scope for this deadline to be extended, by unanimous agreement between Member States, but not on its face for the process to be stopped.

 

This means that as soon as a Member State invokes Article 50, its negotiating position for fixing the new terms of its relationship with the rest of the EU instantly worsens. In two years it will be out with no access to the European single market and trading on the same WTO terms as Yemen. It therefore made no sense for David Cameron to immediately invoke Article 50 after the referendum was lost, and nobody who had thought about it expected him to do so.

 

Mexican Standoff

This has created an impasse. It is not in the UK’s interests to invoke Art 50 before it has a deal, or at least the outline of one. It is also not in the interests of other Member States to negotiate until Article 50 has been invoked, and they have said they will not do so. So what now?

 

Legally, it is for the Member State to invoke Article 50. Nobody can legally force the UK to do so. One, possibly the only, way to in practice do so was to bounce the UK into invoking Article 50 by offering a deal subject to a time limit. “We’ll give you X, Y and Z, but this offer remains open for acceptance by invoking Article 50 only until 1 January.” By refusing to negotiate at all, other Member States have no practical means of applying pressure on the UK to start the process.

 

Outside is Worse

If you are, say, a French negotiator and another State seeks some kind of special deal, who are you more likely to give it to? A Member State of the European Union, or a non-Member State of the European Union?

 

If other Member States wish to see the club of the European Union continue, it is not in their collective interests to give a special deal on free movement to a member who is leaving. Put another way, although the deal Cameron secured struck some as being similar to the re-negotiation  achieved in 1975 by Wilson, that was as good a deal as seems likely to be achieved. A deal struck between parties trying to retain goodwill within the club is going to be better than one struck by the same parties when one has left and the goodwill is gone. There is not going to be a good deal on offer.

 

Inherent Contradiction

In a speech today, John McDonnell called for the UK to have continued access to the European Single Market and an end to Free Movement of Persons. This is incomprehensible. It is like asking for a four sided triangle. Part of what makes the single market a single market is free movement of persons. Without it, it is something else.

 

What did the referendum mean?

One of the central problems with a referendum is that it offers a binary choice, on this occasion In or Out. Within the ‘Out’ camp there were at least two strands. One group wished to regain UK sovereignty, but would wish to retain full access to European markets through the European Economic Area or some other arrangement. For this group, achieving that would mean keeping free movement of persons. The MEP Daniel Hannan would favour that option as it now seems would Boris Johnson MP. For others, regaining control over immigration, but at the cost of losing free access to the European market, was the goal. The Ukip MEP Nigel Farage favoured this option, as we now learn does Michael Gove MP.

 

Now, for most voters, the European Union is a low salience issue, and so it seems possible that for many, possibly a majority, of those who voted to leave, reduction of immigration was the most significant factor. They fell into the second camp. But the gap between Leave and Remain was small: 52%-48%. IF the UK is not to remain in the EU, there is almost certainly a majority both within Parliament and the population at large for an arrangement that keeps the UK within the single market (and thereby retains freedom of movement).

 

Push the Button?

If, as seems very possible, no deal can be reached on acceptable terms whereby the UK remains within the single market but leaves the European Union, what should any British government do? If they opt to leave anyway this would not be to give effect to what the majority of British voters (Remain Plus the Johnson Leavers) probably wanted. Indeed, as they were repeatedly told that a deal could be struck, this was not the basis upon which they voted.

 

Now there are very powerful reasons for respecting the referendum result. I also think there were good reasons why the referendum was held. Given where we are however, I now think there are good reasons for thinking that no acceptable deal will ever be struck, and no responsible government should invoke Article 50. If that is so, we will have a long period of uncertainty, at least until another election, but will not be leaving the EU. At least, not any time soon.

Pannick on Brexit

In today’s Times, David Pannick QC adopts an argument of Barber, Hickman and King as to why an Act of Parliament is required before Brexit can take place. It is not correct and so needs to be addressed.

 

The argument is that as acting under Article 50 alone commits the United Kingdom to withdrawal it is thereby inconsistent with the European Communities Act. An Act cannot be overturned by an exercise of a government power (“Royal Prerogative”). An Act is required to overturn an earlier Act. As the European Communities Act incorporated EU law into UK domestic law, so an Act would be required to bring to an end such incorporation.

 

The European Communities Act incorporates EU law into the UK domestic law. This includes whatever EU law is “from time to time” (ie changes to EU law occurring after 1972). Article 50 of the Treaty on European Union is part of that law. The European Communities Act 1972 requires that Article 50 be given effect. If under EU law, EU law ceases to apply to the UK, the European Communities Act requires that this be given effect under UK domestic law. Once two years have elapsed (if not extended) following notice under Article 50, EU law ceases to apply to the United Kingdom. This notice can only be given by the government: Parliament itself is not an actor in international law.

 

So, not only is an Act of Parliament unnecessary to bring to an end the UK’s membership of the European Union, it is the European Communities Act itself that necessitates this conclusion. This conclusion is not only not inconsistent with the European Communities Act, it is required by it.

 

Put another way, it is simply an error to think that as an Act was required to incorporate EU law, so it is required to remove it. Once Art 50 has been followed, there is nothing to incorporate.

 

Barber, Hickman and King call analysis such as the above “formalistic”.  I would give it a different label. Legal.

 

 

 

Does Brexit Require Legislation?

Assuming the UK’s exit route from the EU is Art 50 of the Treaty on European Union, can this be invoked without resort to an Act of Parliament? This has implications among other things for whether there is a Scottish power to block Brexit.  Lord Lester of Herne Hill asserts in the Times that an Act would be required, and there is a detailed argument by Nicholas Barber, Tom Hickman and Jeff King that agrees. David Cameron took the opposite position in his resignation speech. I think Cameron is clearly correct, and will here explain why.

 

International Law and Domestic Law

The primary source of international law today is agreements between states. International law is binding upon states, not the individuals and entities within states who are not parties to these agreements. States themselves are like corporations: they are legal constructs with no physical existence (despite all the trappings of flags and so on). They can only act through real world agents. Which agents have the authority to bind states?

 

The answer is the governments of those states. If the UK government enters into a treaty with Ruritania, that binds the UK. An Act of Parliament is neither necessary nor sufficient as a matter of international law to bind the UK. Once upon a time, these agreements would have been entered into by monarchs. Today they are entered into by the UK government, usually acting through its Prime Minister. This does not enable the UK government to change UK domestic law. If UK domestic law says “X” and the UK government enters into treaty obligations that say “not-X” UK domestic law remains “X”. The two bodies of law, binding on different entities, will say different things

 

Such agreements do not become incorporated into the UK’s domestic law without more ado.The European Union is the product of several such international agreements. Just as the Human Rights Act incorporates the European Convention on Human Rights into UK domestic law, so the European Communities Act 1972 incorporates the “rights powers, liabilities, obligations and restrictions from time to time created by or under the [EU] Treaties” into UK domestic law. It is through this route that the laws of the European Union are binding on us within UK domestic law.

 

Is Repeal of the European Communities Act required?

One route for removal of EU law from UK domestic law would be to simply repeal the European Communities Act. This however would place the UK in breach of its treaty obligations under international law, and is, as a result, an inconceivable option.

 

However EU law provides its own internal mechanism for change. It is for this reason that fresh legislation is not required each time a new regulation or directive is set down. The European Communities Act incorporates such “rights, powers etc” as from time to time apply to the UK under the Treaties. If under those Treaties no “rights, powers etc” apply, no fresh Act is required to effect such change.

 

Article 50 of the Treaty on European Union provides

  1. Any Member State may decide to withdraw from the Union in accordance with its own constitutional requirements.
  1. A Member State which decides to withdraw shall notify the European Council of its intention. In the light of the guidelines provided by the European Council, the Union shall negotiate and conclude an agreement with that State, setting out the arrangements for its withdrawal, taking account of the framework for its future relationship with the Union. That agreement shall be negotiated in accordance with Article 218(3) of the Treaty on the Functioning of the European Union. It shall be concluded on behalf of the Union by the Council, acting by a qualified majority, after obtaining the consent of the European Parliament.
  1. The Treaties shall cease to apply to the State in question from the date of entry into force of the withdrawal agreement or, failing that, two years after the notification referred to in paragraph 2, unless the European Council, in agreement with the Member State concerned, unanimously decides to extend this period.

 

If this procedure is followed, then there is simply nothing left for section 2 of the European Communities Act to bite upon. The UK is not bound by EU law, and there is nothing left for the statute to incorporate into our domestic legal order.

 

It is for the government, not Parliament, to act for the UK both in entering into and in exercising powers under international law. Nothing in the European Communities Act either expressly or implicitly alters that. That is what our law says with regard to Art 50(1). Once the Article 50 procedure has been followed, there would be no further need to repeal the European Communities Act. Domestic law incorporation falls with the international obligations.

 

Populism and the European Union

Democracy is dangerous. Plato thought it the worst possible form of government. Decisions would, he thought, be made by those best able to sway the mob, rather than by those with greatest wisdom. After the last few weeks of the EU referendum campaign, many will concede he had a point. Modern day commentators who moan about the influence of the tabloid press are misdirecting their criticism. The overwhelming responsibility for how votes are cast lies with those who cast them. Though they feel they cannot say it, democracy should be the real focus of their disapproval.

 

The American founding fathers knew the dangers of majority rule well. It was for this reason that the US Constitution is structured in such a way as to try and create a number of checks and balances within the system: a bicameral legislature with each chamber elected on a different basis, a separate executive, civil rights embedded in a hard to change constitution guarded by an independent judiciary, and powerful individual states.

 

One check against populism in the United Kingdom is the European Union.  It stops Member States from doing popular, but foolish, things. In this regard it is a politically centrist enterprise. I will give fours examples of populist policies that may be unwise, two from the right and two from the left. What I shall say about them will be necessarily brief, and I realise that there is much more indeed that can be said for and against each of them. That is not the point of this post.

 

Immigration

Does it make sense to prevent someone living in Coventry from working in Birmingham? A Scotsman from working in Wales? An Irishman from working in England? A Pole from working in the United Kingdom?

 

Restricting free movement of persons is popular with some, but makes little economic sense. We all of us benefit in the long run from there being no barriers to our working in the neighbouring village, town, and country. As barriers to free movement of people are withdrawn, there will be losers from this process. Unfortunately, the large overall benefit to people generally is diffuse, whist the harm to those adversely affected may be felt acutely. Whenever something goes wrong either in our own lives or in society, it is also tempting to blame the ‘other’. So, populist politicians of the right often seek to restrict immigration.

 

The EU stops politicians from doing this insofar as free movement within the EU is concerned. Populism is constrained.

 

Workers Rights, Environmental Protection and Regulation

Policy makers often face prisoners’ dilemma problems. If country A undercuts country B’s workers’ rights (or taxes, or environmental protection etc) it may benefit as businesses will move to country A where operating costs are consequently lower. This creates an incentive for country B (and C, D, E) to go still further. Beggar thy neighbour policies of this kind can best be combated through collective action. Form a club, with rewards, under which such undercutting is not possible. Members of the club should always be mindful of the benefits this may give non-members in certain markets, but overall, overtime all will be better off if the club is sufficiently large.  This is central to the purpose of the European Union.

 

Protecting Businesses

When jobs are to be lost in an industry that is ‘strategic’ some will call for intervention to save it. A recent example was the possible closure of the Port Talbot Steel Works by its Indian owners Tata. Jeremy Corbyn repeatedly called for government intervention to save the works, by, for example, the government buying British steel on preferred terms. Similar nationalist sentiments are often expressed when a foreign buyer seeks to takeover a major British company. Even where there are independent bodies at national level to supervise takeovers, there may be enormous political pressure brought to bear to give a ‘home’ decision.

 

Protectionist measures like this harm everyone overtime. If the Chinese wish to sell us steel at a price lower than we can produce it for, lucky us. We (by which I mean our overall collective interests) have no more strategic interest in the production of steel than of onions. Again however, the benefits from not adopting protectionist policies are diffuse, whilst the pain for those adversely affected may be serious. The EU enables the politicians of Member States to do what they know (or should know) is in the longterm interests of all by tying their hands through the rules of the club.

 

Free Trade

The benefits of the North American Free Trade Association far outweigh the costs. Trade between Mexico and the United States has exploded over the last twenty years, much to the benefit of both. If an equivalent deal could be struck (the TTIP) between North America and Europe, the benefits would be potentially enormous.

 

Again, there are losers from free trade. It was no surprise that President Hollande expressed the view that France would say ‘non’ to any deal. If such a deal with great overall benefits can be struck by the EU, the objections of politicians of particular states who are constrained by particular interest groups may be overcome.

 

Centrism and the United Kingdom

One similarity of the 1975 and 2016 referendums is that it is the political centre (then Heath, Jenkins, and Thorpe, now Cameron, Cooper and, I suppose, Farron) who favoured membership of the EEC (now the EU), whilst it was and is the populists of the left (Tony Benn) and right (Enoch Powell) who oppose it. What has changed is the centre of political gravity of the UK. Back then, the Tory party overwhelmingly backed membership, as they saw it as a bulwark against socialism. Today, as that fear has receded, Labour is now far more the party of Remain, citing as a reason the damage a right wing government could do outside. That the voices of the left in favour of Leave are so muted is probably a product of a populist member of the left as leader of the Labour party who, constrained by collective responsibility, has been required to campaign for Remain. Those loyal to him have been reluctant to rock the boat. The downside has proven to be a lacklustre campaign by Labour as the leader and the shadow Chancellor are, at best, ambivalent about the EU Project.

 

The largest difference between now and the 1975 referendum is immigration. Even Powell made nothing of this 40 years ago, as there was no prospect of any imminent influx of Dutch and German builders into the UK of the 1970s.

 

Can the centrists win again? Possibly the largest difference between the UK and continental European countries is that the UK has not fallen into the hands of populists. The need for restraints is as a result less widely understood. For founding member states, such as Germany and Italy, this was central to their reasons for the European project. For some Member States, such as Greece and Spain, the memory of dictatorship is much more recent, whilst for others, such as Poland or the Czech Republic, the European Union has offered a secure basis for the transition from Communism. Even France is on its fifth attempt at a republican system of government. The dull centrist politics of the UK is unusual, and so we do not perceive the need for the safeguard.

 

At one time the United Kingdom’s constitution did possess checks and balances that inhibited popular rule. These were of a kind that nobody would wish to see return.In the nineteenth century, and into the twentieth, the hereditary House of Lords and the Monarchy provided different centres of power from the elected Commons. Since, at the latest, World War II this has not been the case. Today the checks in place are our membership of the European Union and the constraints imposed by the European Convention on Human Rights and its domestic law incorporation by the Human Rights Act. Much of the opposition to both comes from the same people.

 

For decades after the war, a kind of consensus politics, Buttskillism, dominated public life. The United Kingdom was, at that time, a relatively homogenous society. With memories of the war still fresh there was a degree of deference towards the officer class of Attlee, Macmillan, and Heath. This masked the need for balances within the political system. This absence is especially dangerous in a first past the post electoral system where a majority of seats is usually won with a plurality of votes.

 

That world of 40 years ago has disappeared. Today, for many reasons, we live in a far more pluralist society than we once did. The post-war consensus is long gone. Populism is on the rise. This takes the form of sectionalism in Scotland and, to a lesser degree, Wales. They offer the same kind of analysis, blaming the authority at the centre for local ills, as do those who wish to leave the European Union. The current leadership of the Labour party, with its break from centrism was unimaginable 15 years ago.

 

In the 1970s the press uniformly favoured the UK remaining within the EEC. Today a majority by sales favour leaving the EU. It is impossible for modern day MPs many of whose working life has been largely confined to the role of special advisors (SpAds), to convey as much authority as in 1975  Jenkins, Healey, Heath or Whitelaw did, who had all served in the War. For one reason or another few current front rank politicians are as impressive as Shirley Williams (Remain) or Barbara Castle (Leave). In a world of beige politicians to whom we do not defer, the populist can thrive,

 

As an inevitably remote constraint on populism, the European Union has for decades been an easy target for politicians of all parties to use to blame for inaction. “We cannot do anything about [Issue X] because of the European Union, blame it not me.” The European Project has itself been carried forward with occasional hubris, as exemplified by the general misfortune that is the euro, undermining the aura of success that it once had. As a result, it is much harder today for the centre to hold than it was in the 1970s. The successors of Powell and Benn may this time win. For myself, and fully aware of the flaws of the European Union, my judgement is that it is important that we Remain. We must be protected from ourselves.