The scale of the ECJ's judicial activism makes the court the ruler of Europe.
At time of writing, Boris Johnson has opened a commanding lead in the race to be Conservative Party leader and thus Prime Minister, confirming one of my father’s bits of life advice: “always bet on self-interest, Helen; it’s the only horse that’s trying”. Whether Boris will have a country to govern come July 22 is, however, something of a moot point.
Let me tell you about Brexit Britain, which is in the process of breaking the Big Electric Trainset in the Palace of Westminster.
Since the 23rd of June 2016, when the United Kingdom voted to leave the European Union, colossal fissures—hitherto obscured from view—have opened in the body politic. More Conservatives voted “Leave” than Labourites, but Labour represents the most passionately pro-“Remain” constituencies in the country and the most passionately pro-“Leave” ones. This means both parties have taken to destroying themselves internally rather than dealing with the vote’s implications.
The Tories are more culpable because they formed government during this period. They stuck with Theresa May, a leader who lacks every leadership quality apart from perseverance and who managed to lose a 20 per cent poll lead against an antediluvian Marxist after calling a completely unnecessary general election. This election produced a hung parliament and forced May’s Tories into a confidence and supply arrangement with the Democratic Unionist Party (DUP), a Northern Irish outfit that is, to put it mildly, full of strange characters.
Thanks in part to the immense distraction of said unnecessary election, May and her Cabinet Office hangers-on made a complete hash of negotiating Brexit. They failed to appreciate—while slow and ponderous and beset with terrible problems of its own (Italy, Greece, Hungary, people in France attempting to re-run 1789)—the EU must defend itself on Brexit or risk being torn asunder.
The Withdrawal Agreement—which went down to catastrophic defeat three times in the Commons and precipitated May’s resignation—was widely (and accurately) seen as a national humiliation. Yes, it’s true there’s an important distinction between withdrawal and the UK’s future economic relationship with the EU, but the “deal”—although it was meant to be temporary—was so incompetently constructed the UK may never have reached the sunlit uplands of a future economic relationship.
The significance of including a customs arrangement in the “Irish backstop” is that it prejudices future trade negotiations. Why would the 27 countries of the European Union agree to any other kind of relationship when their best alternative is what they already have? The inevitable result is that Britain would have been forced into some form of permanent customs union. This is a bad idea on the merits, unless you’re a large manufacturer like Airbus and use the customs union to move parts between your plants in different EU countries. May’s deal was more excommunication than divorce. You can’t take the sacraments but you’re still not allowed to sin. And once you’re sufficiently contrite the process can be reversed, but only on EU terms.
The backstop will also subject Northern Ireland to different regulations from the rest of the United Kingdom. Those regulations will emanate from a political entity of which the UK is not a part. An arrangement like this is not compatible with Northern Ireland being a sovereign part of the UK.
And how did this come about? Because the EU has hard borders with what EU treaties call “third countries,” and after Brexit the UK will become a third country, the logical consequence is a hard border between Eire and Northern Ireland. Except a hard border between Ireland and Northern Ireland is not possible, because of the 1998 Good Friday Agreement. The Good Friday Agreement is based on referendums in both Northern Ireland and Ireland. It’s partly an international treaty, partly an agreement between the parties. It isn’t part of UK domestic law but it binds us in so many areas it may as well be. It guarantees Northern Ireland access to the European Court of Human Rights—a major reason David Cameron couldn’t repeal the Blair-era Human Rights Act. It was drafted on the understanding both Ireland and the UK were part of the EU so it doesn’t envisage what either country’s commitments could be in relation to the border in the event of either leaving.
The Good Friday Agreement also ended a period of history known as “The Troubles.” To quote Bernard Woolley of Yes, Minister fame: “Ireland doesn’t make it any better; Ireland doesn’t make anything any better.” Nonetheless, the colonization of the Ulster Plantation and surrounding counties was a terrible and immoral mistake and the Irish border problem is our punishment for the sins of our ancestors. Northern Ireland has become the UK’s catflap of doom, simply because the EU is (rightly) concerned that importers could use it as backdoor into the customs union.
It was clear from at least the 2017 General Election and probably before that the EU was wholly inflexible on this point. We could either keep Northern Ireland in a customs arrangement (and the Single Market) or leave with no withdrawal treaty.
This meant “no deal” was the only constitutionally viable option. Parliament had to take whatever actions it considered necessarily to flow from that. This could have included commencing free trade negotiations with Commonwealth countries, and perhaps a border poll in Northern Ireland on the understanding of no deal. This latter would tell the rest of us whether avoiding a hard border on the island of Ireland is worth enough to the Northern Irish electorate to break up the Union.
No deal—while not as catastrophic as Remainers and economists predict (any forecast that comes from Treasury or the Bank of England on this issue should be seasoned with a pantechnicon of salt)—is still far from a walk in the park. While there won’t be queues at borders or medical shortages and the lights will indeed stay on, there will be EU tariffs. There will be a 12.8 per cent tariff on lamb, a 13.6 per cent tariff on cauliflowers, a 16 per cent tariff on tractors, a 10 per cent tariff on cars and an 8 per cent tariff on many clothes. For some items, tariffs exceed 20 per cent. Some even exceed 100 per cent.
It is not Project Fear to point out that tariffs will make our goods unappealing to buyers in the EU; that is their point. A large number of British businesses will be affected and many of them will go bust. Industries that cannot relocate, such as Welsh lamb farmers—who depend overwhelmingly on exports—will go to the wall and they will not go quietly (nor should they).
On the other hand, shoppers will be free of EU tariffs on imports and will be able to buy generally superior Commonwealth (Australia, New Zealand, Jamaica, Canada) agricultural produce at a lower price. This is an undoubted benefit of leaving the EU properly but is also a reminder that neither EU nor UK agriculture is remotely competitive with Australian or Canadian agriculture.
I happen to be in favor of unilateral free trade, but I would not introduce it overnight.
Jeremy Corbyn’s Labour has had less opportunity to evince idiocy simply because it is the Opposition, but that doesn’t let it off the hook. Corbyn himself is a lifelong Euroskeptic forced by the Blairite wing of his party to support Remain in 2016. He was frank that his socialist policies—extensive renationalization, including the railways—could not be enacted while the UK was in the EU. Since 2016, however, Labour’s Blairites have weakened, while Corbyn’s views on renationalisation have not changed. Nonetheless, his peace-hope-anti-austerity message resonated with a lot of passionate Remain supporters in 2017.
Labour is thus coming under enormous pressure to back a second referendum as policy. Corbyn is resisting, and not just because of his lifelong Euroskepticism. He has made it as clear as he dares that he wants to see Brexit happen and he is going to avoid a second referendum if he can. He argues he could negotiate a better exit deal if he were to win an election, something that has attracted a great deal of derision. However, there is one point where Corbyn is right. The most significant problem for most Leave voters with May’s Withdrawal Agreement (and with all other negotiated forms of Brexit on offer) is the Irish Backstop. This is a non-issue for Corbyn, who has always supported a united Ireland.
What has not been widely discussed is the large number of Labour MPs who are desperate to avoid a second referendum—and for good reason. They fear it would give a huge boost to unpleasant populist politics and radically destabilize the country, particularly if the vote is a narrow one for reversing the previous result. They’ve also pointed out the elitism and classism of the second referendum campaign. This includes the tin-eared idiocy of calling it a “People’s Vote”, as though everyone who turned out in 2016 was not, ahem, human.
Corbyn is therefore trying to hold Labour’s electoral coalition together. It’s all very well people in the metropolitan media talking about how 70 per cent of Labour voters are pro-Remain. The practical point is that the other 30 per cent makes up a large part of Labour’s working-class constituency and is disproportionately concentrated in traditional Labour seats in the North of England, South Wales, and the Midlands. The 70 per cent are also often in the Southeast where Labour isn’t going to win anyway, or in London, where they’ve already won.
The effect of all this is that the Tories, the civil service, and Labour are tripping over each other and falling down separate flights of stairs while the nation looks on in baffled consternation. We used to be good at running things. That was Britain’s superpower. And yet we’ve somehow lost the knack. Why?
One of the reasons the 2016 EU Referendum was so destructive of civil society is because Westminster is a system of representative democracy. We elect MPs to make law, and it is their role to deliberate in Parliament and make decisions on behalf of those they represent, but not at their behest. Over its long development, anything even vaguely populist was drained out of the UK’s constitutional architecture. Politicians are not supposed to keep picking at some electoral scab or another using direct democracy. 2016 was thus a horrible disruption of the constitutional order precisely because referendums are not how one does things.
A referendum became necessary, though, as the UK outsourced so many legislative competencies—most importantly trade and immigration—to the EU. Constitutionally, the electorate entrusts MPs with legislative power, but Parliament had no authority to give that power away; it required a popular mandate. Britain’s greatest constitutional lawyer, Professor Vernon Bogdanor, pointed out that a referendum should have been held in 1993 (before signing the Maastricht Treaty). His advice was ignored. Instead, former Prime Minister David Cameron, Bognanor’s most famous student, was forced by circumstances to lance the national boil in 2016.
UK politicians have legislated and governed within such a constrained field for so long they are now literally out of practice. Westminster is no more than a Big Electric Trainset. The concomitant loss of capacity among civil servants is notable. It is difficult, for example, to imagine the Home Office replicating Australia’s points-based immigration system, even if it wanted to.
The vacuum on both sides of Parliament has allowed a weak government to be captured on two fronts. The EU has led it in negotiations. It has been buffeted by pressure from incompetent civil servants. Yes, Parliament has demonstrated that it ultimately has the power, which is how it should be. Parliament is however completely divided and has nothing like a clear majority to decide anything.
This last is because 2016’s vote to Leave was the first time in the full flower of British democracy—that is, since female and working-class male suffrage in 1918—where a majority of people outside Parliament demanded something that a majority of people inside Parliament didn’t want to give.
Any political party that won an absolute majority (52 per cent) of such a large turnout (72 per cent) should be in legitimacy clover. It would be able to do anything—even more than, say, Tony Blair or Margaret Thatcher in their pomp—during its term of office. But this colossal fissure is between governors and governed, not Government and Opposition. As a result, the Mother of Parliaments has transformed itself into a legislative Blunderdome. Brexit is blowing up Parliament where Guy Fawkes failed.
By the end of October—when “No Deal” happens by force of law if no Withdrawal Agreement impedes its path—it’s entirely possible the Palace of Westminster will be in geostationary orbit.
In terms of the Parliamentary arithmetic, we are confronted by what electoral systems wonks call a “Condorcet Paradox.” There are majorities against everything but no majority for anything on offer. The Commons has twice voted on alternative policies—everything from No Deal to a second referendum to joining the EEA (often simply called “Norway”). All this achieved was to put precise numbers on the analysis paralysis across Parliament.
Traditionally, the way to break a logjam of this type in Britain is to call a general election, but because Leave v Remain cuts across Conservative and Labour and are views now held far more passionately than traditional party loyalties, doing so would generate more heat than light. Last month’s European Parliament elections showed the extent to which the electorate rewards clarity on Brexit. Nigel Farage’s new vehicle The Brexit Party won handily, with Remain ultras the Liberal Democrats performing solidly in second. The Tories, meanwhile, were soundly spanked for incompetence while Corbyn’s attempt to keep balancing on the Brexit fence finally handed Labour a backside full of splinters.
A number of mistakes have brought us to this point. Leave campaigners never agreed on a unified view of future trade with the EU. That was understandable before the referendum, but here we are three years later and there is still no consensus. Leave’s other major failure was its eschatological vision of Brexit. All shall be milk and honey when the world is made anew. It never reckoned with the public, for example, about the disruption that leaving the customs union would cause to the manufacturing sector as it currently stands.
Meanwhile, Remain never settled on whether they were trying to reverse the result or craft a post-Brexit trading relationship with the EU. As a result, they’ve decided to fight on every front, one vote at a time, with no distinction between arguable ideas (Norway) and bad ideas (a Turkish-style customs union). The mess in which both camps now find themselves is a stark reminder that one campaigns in poetry but governs in prose.
In days gone by, superannuated elites refusing to accept defeat on existential questions of this type finished up with their heads on pikes. Democracy put a stop to that by doing what democracy does best: facilitating the peaceful and orderly transfer of power. But democracy means you elect a new parliament, not a new people. That, in truth, is the only deal that matters.