Is David Davis going to set us free from the EAW?

It is very good to see that David Davis, by raising the point about the supremacy of the ECJ’s jurisdiction over the EAW, has taken a first step to breaking us free from the shackles of the continental inquisitorial justice system, so alien from ours. I am hoping that he might now take a second step, viz, as follows:

In my speech on Alien Legal Systems, at the CIB event in the House of Lords on March 15th this year, I mentioned David Davis. Here is an extract from that speech, with my personal challenge to him which he might now answer, and indeed perhaps he will answer it:

 “For us in Britain, the preliminary public hearing in open court,  where the prisoner is formally charged, must take place within hours, or at the most a few days, after his arrest and detention.

Some years ago there was an attempt to extend this, in serious terrorist cases, to three months, then reduced to six weeks. An MP called David Davis fought a noble battle of principle against this – he resigned his seat and stood again for Parliament on this very point – Habeas Corpus. He won and was returned to his seat. In the end, Parliament fixed a maximum limit of 28 days of detention without charge, and only in exceptional cases of terrorism. This is what we in Britain consider to be “reasonable”.

But for many EU states, under their Napoleonic-inquisitorial jurisdictions, it is considered “reasonable” to keep a prisoner under lock and key with no public hearing for six months, extensible by three months at a time. These are the terms of the Commission’s Corpus Juris proposal for an embryo single uniform criminal code to cover the whole of Europe, including the British Isles. This is what is may be faced by anyone in Britain who is targeted by a European Arrest Warrant. And on a long list of crimes, not just terrorist cases.

Now is the David Davis who resigned his seat to stop the six weeks’  detention bill on no evidence, the same David Davis now in charge of the government’s Brexit department? If so, does he share Ms Rudd’s wish to keep us subject to, not six weeks, but six months and, in the case of Andrew Symeou, nearly a whole year’s detention with no public hearing? If he opposes it, will he please say so openly?

This is no marginal matter. As I have shown, whoever controls criminal justice, controls the police and prisons, and thus holds the  ace of trumps in the struggle for power over a country. And that is precisely what Brexit is really about – who shall hold power in this land? Shall it be the unelected bureaucrats in Brussels? Or shall it be the people of Britain?

So we see that the European Convention is a very thin blanket,  designed to cover systems with Habeas Corpus as well as those without. It can only work if the woolly ambiguity of its use of words like “reasonable” [in article 6, referring to a prisoner’s right to a public hearing within a “reasonable time”] remains unchallenged.”

[For your ease of reference, the whole speech is here (7 pages)]

Re-taking our place in the world

At least a third of voters always planned on leaving the EU and were not going to be persuaded otherwise. This didn’t happen on the back of something written on a bus. This was cumulative. For many the final straw was the Lisbon Treaty which was in effect an EU constitution giving it a legal personality in world affairs.

For something that so radically changed our relationship with what was (and still is) viewed as a trade relationship, it should have been put to a referendum. That our political establishment set about ratifying it, using any means at their disposal to dodge a referendum, was evidence of a political establishment which had long since given up any sense of obligation to seek consent when acting in regard to the EU.

What compounds that act was the fact that those who voted for it had very little idea what they were agreeing to. Remainers often complain that there was no impact assessment for Brexit, yet where was the comprehensive national debate over ratifying Lisbon?

We leavers warned that Lisbon would make EU membership all but impossible to reverse – and to an extent we were right. Brexit is no easy feat – and to do it properly will take more than a decade. Our main concern at the time was that the EU is a long term project which gathers its powers by stealth, creeping ever more toward a federalist entity.

Where possible I have tended to avoid the term “European superstate” largely because that kind of terminology lands you in kipper territory where that kind of hackneyed rhetoric is an instant turn off. But that is exactly what the EU is and though remainers can nominally say that we retain our sovereignty, the question is over what? – and for how much longer?

In that regard you have to look up the chain to see how this affects the UK. As we continue to argue, the centre of the regulatory universe is increasingly Geneva, not Brussels – where the WTO TBT agreement provides the foundation of a global regulatory union.

Critics point out that implementation of this is hotly disputed and that its installation is piecemeal and subject to a number of registered exceptions, but like the EU, it is not the status quo that concerns us, rather it is the direction of travel.

While I have always been opposed to trade being an occupied field, the nature of trade agreements is changing, encompassing ever more regulatory measures extending far beyond what we would traditionally call a trade barrier. In order to eliminate distortions in labour, for example the shipping industry using Filipino slave labour, we increasingly adopt International Labour Organisation conventions in trade agreements.

Superficially there is no reason for alarm but what this means in practice is that for the EU to continue with trade exclusivity it must assume exclusive competence over areas not traditionally concerned with trade. In order to tie up these loose ends and overlaps there will eventually be a need for a new EU treaty which involves another substantial transfer of powers. But in the meantime, the ECJ will be the instrument of integration, confiscating ever more powers by the back door.

The eventual destination in this is the deletion of EU member states as independent actors on any of the global forums, with access to them controlled exclusively by Brussels. We would no longer have a voice in our own right and being bound to the EU customs code we would cease to be an independent country in all the ways that matter. This, to me, is why Brexit is absolutely necessary and the high price is one worth paying.

Remainers would argue that we still maintain significant influence by way of being an EU member. Superficially this is correct and Brexit will, temporarily, lead to a loss of influence. But whose influence is it anyway? We are told that the UK was instrumental in pushing for EU expansion. That remains a bad idea and accession states will remain in a state of limbo until such a point as there is a major political or financial crisis – or they leave of their own accord.

But this goes back to the opening premise. It’s no good to say that we have influence in Europe if we have no influence over our government. What remainers say when they say “we” have influence, they mean our permissive, unaccountable, political élites have influence – but actually only in those instances where their ambitions are in alignment with the ideology of the EU.

As much as Brexit is about severing the political integration of the EU, it is also a slapdown for our political class who have never had any intention of seeking consent – and where the EU is concerned, will tell any lie to that end.

In a lot of respects the classic arguments against the EU are legacy complaints where the damage cannot be undone. Leaving the EU does not reverse or remedy what was done to us and for the most part the UK has adapted to the new paradigm. What concerns us is whether there are the necessary safeguards to prevent yet more sweeping changes in the face of globalisation.

We are told that trade liberalisation is good for us – and on a philosophical and technical level I’m not going to argue, but on the human level, it has consequences that directly impact our lives.  This is something we should have a say in, be it opening our markets to American agriculture or letting market forces eat away at our steel industry. There are strategic concerns as well as the economic – and a dogmatic adherence to the principles of free trade is dangerous.

In recent times we have seen EU trade deals derailed because of concerns like chlorine washed chickens, but one suspects this is largely motivated by an inherent anti-Americanism, and were these topics included in any other trade agreement, nobody would have ever uttered the phrase “chlorinated chicken” – and we’d already be eating it.

The fact is that too much is going on out of sight and out of mind. Brexit is a remedy to that. We have already seen a robust debate on the shape of a future UK-US agreement and I fully expect other deals to come under similar scrutiny. I know the powerful UK agriculture lobby will be watching very closely indeed.

As much as Brexit is necessary as a defensive measure against hyper-globalisation, it is also about restoring the UK as an independent actor. As far as most people are concerned, foreign policy is just who we decide who to drop bombs on and who to dole out humanitarian aid. This is what happens when trade, a crucial element of foreign policy, is broken out of policy making and farmed out to the EU. It leaves all the strands of foreign policy happening in abstract to any coherent agenda while removing one of the more useful leverage tools.

Brexit is a means of reintegrating all of these separate strands so that we can have an effective presence on the world stage without seeking a convoluted compromise through Brussels – assuming we can get permission to act at all. The best part of it is that it does not preclude close cooperation with the EU. Obviously Brexit does not give us a free hand and our legacy ties with the EU will be a constraint, but it opens the way for more imaginative approaches than cumbersome EU FTAs.

One overlooked facet of the Brexit debate is that it gives us the opportunity to reconfigure a lot of the agreements we already have via the EU. In most respects, carrying over EU deals need not be a great headache, not least since we are maintaining existing schedules – but it’s the extras we can reappraise. In the EU-Singapore agreement there is a dedicated section on renewable energy – largely reproducing WTO tract. We could either enhance or delete these sections, establishing new joint ventures and working parities, including a number of sectors not touched on by the EU.

This need not happen in competition with the EU, rather it can be a complimentary strategy where one of Europe’s trading powers is free to explore avenues which could potentially benefit all of the EU. Having a major trading nation not bound by the bureaucratic inertia of the EU could well be a secret weapon for Brussels. That would make future EU-UK relations a strategic partnership rather than a subordinate relationship. There is no reason why Brexit cannot be mutually beneficial. All it takes is a little bit of vision.

New research paper by Futurus – The negotiations will fail

The title of this latest publication from Futurus may appear provocative but the prospect of concluding a jointly agreed leaving process and a future relationship so it can come into effect, possibly with a transition period, by March 2019 seems very remote.

There have been faults on both sides and the UK government’s failure to set out what exactly it wants the outcome to be has been a particular problem.

The UK government need not have agreed to the EU’s proposed sequence of events – the settlement of the Irish border issue and the exit fee – before discussing trading arrangements. Under Article 50, it need not have done so.

A mutually-agreed pause in the negotiations looks likely or else failure looks highly probable.

The full paper can be downloaded here. PLEASE NOTE: The paper has been revised since this article  was first published.

Varadkar gets a caning from Lord Stoddart over Brexit comments

THE PRESS OFFICE OF

The Lord Stoddart of Swindon (independent Labour)

News Release

8th August 2017

 

Comments from leader of “EU minnow country” go down badly with Brexit peer Lord Stoddart of Swindon

The independent Labour Peer, Lord Stoddart of Swindon has taken the new Prime Minister of the Irish Republic, Leo Varadkar to task about his contribution to the ongoing debate over Brexit and advised the “stripling leader of a mini-state” to “learn his trade” before presuming to lecture the United Kingdom.

Lord Stoddart said: “The British people must be getting fed up with EU minnow countries telling them either to stay in the EU or agree to conditions like remaining in the Single Market and the Customs Union, which would effectively keep our country in the EU.  The latest culprit is the Prime Minister of the Irish Republic (population 4.7million) Leo Varadkar.  He should be reminded that the United Kingdom is the Republic’s good friend and a substantial trading partner –indeed, such a good friend and partner that that it gave Ireland a loan of £3billion to save it from bankruptcy caused by its membership of the single currency, during the last recession (I wonder if they have paid it back yet?).

“This stripling leader of a mini-state should learn his trade before presuming to lecture substantial and successful countries like the United Kingdom on how to proceed on Brexit, particularly after its people have voted in a democratic and free referendum to leave the European Union.”

Hopefully it’s confusion rather than betrayal

Michael Gove’s comments to Danish fishermen about access to UK waters after Brexit have attracted some adverse criticism. We have not been provided with a full record of his actual words and it is quite likely he has been misquoted. Furthermore, he has only been in the job a few weeks and there is a lot of detail for him to take on board.

The same cannot be said for the Civil Servants of DEFRA, the Department for the Environment, Food and Rural Affairs, who should know better, A statement by one of their spokesman is therefore far more of a cause for concern than Mr Gove’s comments in Denmark. The spokesman said:-

“Leaving the EU means we will take back control of our territorial waters. As we have always said, other countries will be able to access our waters – but for the first time in 50 years it will be on our terms and under our control…..We will allocate quotas on the basis of what is scientifically sustainable, making sure we have a healthy marine environment and profitable fishing industry in the UK.”

The fishing industry has always been concerned that the Government will only allow British vessels the exclusive use of the 12 nautical mile zone – in other words, out territorial waters. This is  what the DEFRA statement has indicated and the recent the Conservative manifesto said the same thing. Taking the DEFRA statement at face value, it would appear that arrangements regarding our Exclusive Economic Zone (EEZ) covering the area from 12 nautical miles up to 200 nautical miles/median line will continue as at present. This means that EU vessels will continue to take around 59% of the British people’s resource and the failed quota system will continue. Is this really what Mr Gove has in mind?

So why did the department use the word “Territorial”?

This is where confusion is creeping in. This doesn’t apply just to fishing but right across the whole range of Brexit-related issues. The public is stating to get restless and are wondering whether those at the top know what they are doing or else fear that they are deceiving us again. This is unhealthy, and proves once again the importance of detail.

Consequentially, Gove, probably for no fault of his own, will be under pressure now not only to explain his own comments but also the actions of his department. The burden on Gove’s shoulders cannot be exaggerated. The survival of the Government  – and indeed, the Conservative party – could rest in his hands. If the EEZ is traded away, then Brexit isn’t Brexit. DEFRA may state, “it will be on our terms and under our control”, but if the existing quota system of the CFP is used, the expected benefits will not materialise. Life after Brexit has to be a success for our fishing industry, not a continuation of the present story of decline.

The confusion stems directly from the DEFRA statement – “As we have always said, other countries will be able to access our water”. There is nothing wrong with these words as all free and independent fishing nations have reciprocal arrangements with their neighbours. Under international Law, UNCLOS3 article 62(2) states that if you haven’t the fishing capacity to take the resource, the amount you can’t catch can be given to your neighbours. The problem here is the civil servants will have advised Gove that we haven’t the capacity, whereas in reality we have.

The confusion centres around this word “Territorial.” UNCLOS3 has different rules for the territorial waters up to 12 nautical miles from the coastline and the Exclusive Economic Zone reaching out to 200 nautical miles/median line zone.

No one is saying that we should throw all EU vessels out on 30th March 2019, but no permanent rights must be given, only temporary transitional rights on a declining annual basis. What is vital, however, is that we need to know whether DEFRA is making the common mistake of using the term “Territorial waters”  when it actually means EEZ or whether it really does mean that we will only control the 12 nautical mile limit.

If so, it would be a shameful betrayal of our fishermen on a par with Fisheries Minister Peter Walker, who told Parliament in January 1983 – “the reality is that if the UK, instead of demanding anything like the historic proportions of Europe’s fish that it had caught, demanded a 200 mile limit and 50% or 60 % of Europe’s fish, that would mean the destruction of the fishing industries of most of our friends and partners in western Europe”.

Unfortunately the attitude that fishermen in other countries come before our own still prevails in some quarters. Thankfully, in Michael Gove, we have a person who has hit the deck running and is prepared to listen and learn. He has already shown in denouncing the London Convention  that he is someone who can and will take action. Ultimately, it is the job of civil servants to implement, not decide policy, so we can but hope that when Mr Gove really has his feet under the table that there will be a change of tone from DEFRA.

The way his Danish visit has been reported in the press will also underline to him how important it is for his department to issue clear, unambiguous statements, leaving no room for confusion over a very delicate subject.

The remoaners aren’t giving up – yet

Life in the remoaner bubble remains as surreal as ever.  The Guardian newspaper has publiushed an article by David Cameron’s former tutor Vernon Bogdanor, claiming that “A second Brexit referendum is looking more likely by the day.”  Wishful thinking perhaps? As we have pointed out on numerous occasions, Mrs May and the Tory Party dare not row back on their commitment to deliver Brexit. Not only would it be as good as handing the keys of No. 10 to Mr Corbyn, but it would precipitate the worst crisis the party has faced since the split that followed the repeal of the Corn laws in 1846. What Bogdanor fails to take into account is that now Article 50 has been triggered, we are on the way out. Even EU sources  have suggested that it may not be reversible. Furthermore, Mrs May shows no sign of conceding a second referendum, not to mention the fact that no one in their right minds would want to go through that gruelling campaign again, especially given the lack of interest among the general public

Still, it’s the silly season aka the Parliamentary summer recess, so editors have to be a bit more creative in trying to fill the columns. The Financial Times, another bastion of remainiacs, is no better than the Guardian. In a piece entitled Brexit reveals Britain’s enduring flaws, Simon Kuper claims that the idea of leaving the EU was hatched in the Oxford Union in the 1980s by the likes of Michael Gove and Boris Johnson, because “This generation of mostly former public schoolboys didn’t want Brussels running Britain. That was their caste’s prerogative.” No better proof of the decline in the standards of journalism can be found than this once respected newspaper  giving space for such utter tosh. Is Mr Kuper completely unaware of the long-standing opposition to EU membership within the Labour Party? Or of the Campaign for an Independent Britain, which was set up in 1969 to oppose our accession – before Boris Johnson or Michael Gove were old enough to go to school?

True, both articles acknowledge that the Brexit talks are not going as well as David Davis and his team had hoped, but widely-reported differences of opinion within the Cabinet over the “hardness” of Brexit does not mean that Brexit isn’t going to happen. Whether it is seamless is another matter, of course, but happen it will. I wouldn’t normally quote Jean-Claude Juncker approvingly, but he does seem to have the measure of the mood in the UK (including the government) and has distanced himself from those Brexit sceptics who are expecting  a big back-pedalling “My working hypothesis is that it will come to Brexit”, he said.

Meanwhile, our attention has been drawn to a piece by Jonn Ellidge in the New Statesman, which claims that a recent YouGov survey proves that Brexit voters hate their own children.  The reason for this astonishing statement  is  because:-

A healthy majority of Leave voters, it found, claimed that ‘significant damage to the British economy’ would be a price worth paying for Brexit: 61 per cent, compared to just 20 per cent who disagreed. More bizarrely, when the question was made more personal, and respondents were asked would it be worth “you or members of your family” losing their jobs, 39 per cent still thought Brexit was totes worth it – slightly more than the 38 per cent who, like normal, sane people, replied ‘obviously not’”.

So QED, Brexit voters, which the author equates to retired baby boomers “who are prepared to crash the economy because they don’t like Belgians” are a selfish generation who must hate their offspring because “when asked directly whether they’d swap the wealth and security of their own children for a blue passport and the ability to deport Polish plumbers, they said yes in huge numbers.

As blogger Samuel Hooper says, Ellidge’s claims are “vile” and totally ignores the real reason why a significant majority of older voters supported Brexit. “Does he not realise that the counterfactual, unrecorded by YouGov (who did not bother to probe more deeply) is that perhaps these older people – rightly or wrongly – thought that by voting for Brexit they were preserving some other vital social good for their descendants, something potentially even more valuable than a couple of points of GDP growth? I would posit that the supposedly hateful Daily Mail-reading generation of grey haired fascists scorned by Jonn Elledge actually do not have any particular desire to inflict economic harm on their children and grandchildren, but simply realise – through having lived full lives through periods of considerably less material abundance than those of us born since the 1980s – that other things matter too. Things like freedom and self-determination, precious gifts which were under threat during the Second World War and the Cold War, and which the older generations who remember these difficult times therefore do not casually take for granted.”

Absolutely, but no amount of debunking is going to stop the blinkered fanaticism of the remainiacs. Among the chief of these is the European Movement, which is ramping up its campaign to stop Brexit altogether, linking up with other  like-minded groups including Scientists for EU, Healthier IN the EU and Britain for Europe to try to stop Brexit. I debated with a few members of the European Movement and although I didn’t always win, it was fun to embarrass them by mentioning the funding they received from the American CIA during the 1970s. A recent e-mail has encouraged recipients to join this iniquitous organisation which sees itself as able to “represent the groundswell of opinion against departure from the EU.”

Sorry, European Movement, but the ground isn’t swelling round here. If even I, as a political “anorak” and long-standing opponent of our EU membership, am getting fed up with all the debating about how badly the cabinet is divided, how much we will have to pay to leave, trading arrangements and so on, Joe Public is even less interested. He cast his vote a year ago and whichever way he actually voted, he was never really very excited by the EU, never really understood what we had joined and just wants the country to move on. Hopefully on March 29th, when we finally leave, the European Movement and its fellow-traveller remainiacs will move on – preferably to well-deserved oblivion – but I’m not holding my breath.