A pertinent letter

Enoch Powell was a consistent opponent of our membership of the European Union and one of our supporters has drawn our attention to an excellent  – indeed, prophetic  – letter sent to the Daily Telegraph over a quarter of a century ago, which we felt was worth reproducing

Daily Telegraph, June 20, 1991
LETTERS TO THE EDITOR
Britain has lived ‘lie’ since 1972

SIR – I am sorry that Edward Heath appears to have caught the epidemic disease of using the words “lie” and “liar” in political debate (report, June 19). His tussle with Margaret Thatcher came home to me personally because, in a sense, Britain, since 1972 has been “living a lie” – a phrase which I happened to use over the weekend when addressing a meeting of the Stafford Constituency Conservative Association.

   It was in 1971 that I took it upon myself to tour the principal member states of the EC to warn anyone who would listen, and in their own languages, that the British could not possibly intend what was involved in legislating themselves into the Common Market. “They don’t mean it.” I said, “because they can’t mean it.”

   However, in 1972, albeit by a majority of as little as eight votes, the Commons divested itself of every essential part of its own sovereignty – legislation, taxation, control of expenditure, jurisdiction, the lot. The public was assured, both then and when it came to the referendum in 1975, that the sovereignty of Parliament would be unimpaired.

   That is the context for the word “lie”, if one must use it. The facts have turned out otherwise. The laws of the Community now override the law made by Parliament; the courts of the Community overrule the courts of this country. What may have been on the part of some a sincere expectation in 1972 has turned out to be false, and from this false position, now clear for all to see, the Government has to extricate itself and the United Kingdom.

   The issue ought to be placed again, without prejudice, prevarication or pressure, before the electorate at the next general election.

   They want to opportunity to vote for a party which promises to give back to them their former right to decide the laws, the taxes and the policies of the country through their own Parliament.

   The Act of 1972 must be amended to restrict its operation to these areas which are defined by British courts as indispensable to freedom of trade.

   That is what the British people were led to expect 19 years ago. They have a right now to fair, sincere and open dealing, at least from the Tory party.

ENOCH POWELL             London SW1

 

 

Photo by HonestReporting.com

A Nation Once Again!

By Alan Smith. This article is used with full permission of the author.

Now that Parliament has agreed that the Government may negotiate the United Kingdom’s departure from the European Union, discussion on the subject is concentrating on the degrees of hardness that Brexit should take. I think we should step back from the detail and define the essence of Brexit, for which I offer the following, in the language of the Book of Common Prayer: “The Queen in Parliament has the chief power in the United Kingdom and is not, nor ought to be, subject to any foreign jurisdiction.”

Should the solution agreed with the EU leave the UK under the jurisdiction of any European court or under rules that give the EU the power to decide unilaterally the terms of future transactions between us, then the government will have violated the referendum decision. Any future agreement between the UK and the EU or its constituent states should be on the basis of two, or more, sovereign states freely agreeing one or more joint actions. The UK would then be free to negotiate treaties with other states throughout the world, taking care to ensure that we protect our essential industries against hostile trade policies.

The withdrawal of the UK from the jurisdiction of the various European  courts is necessary but not sufficient for our freedom. In my opinion it is also necessary to abolish our own Supreme Court and transfer its powers back to the House of Lords, reinstating the post of Lord Chancellor to the powers it held before Tony Blair’s ill-fated attempt to abolish it. That ws one of hte lighter moments in political life this century when Mr Blair announced the abolition of the post of Lord Chancellor  and was then advised that it could not be done because certain actions had to be performed by the holder of that post. He quickly backtracked and now we have the post of “Lord Chancellor and Secretary of State for Justice”. I do not wish to belittle any of the holders of this post but the position is listed seventh in the  list of members of the Cabinet and may be held by politicians with ambitions to hold higher office. This contrasts with the previous post of Lord Chancellor held by a politician with no further political ambitions, who was a lawyer respected by the profession and who was therefore in a position to speak truth to power.

Leaving the EU does not mean that the UK is leaving Europe: in the Middle Ages, England and Wales, Scotland and Ireland were part of Christendom without being part of the Holy Roman Empire. There is no need  for us to have bad relations with those states that remain within the EU, but that depends, in part, on those states realizing that their interests are not necessarily the same as those of the great wen of Brussels. In particular, there is no reason for us not to continue to maintain armed forces on the continent of Europe for the defence of these states and ourselves. However, should Brussels seek to impose severe financial penalties on the UK for daring ot leave the EU it may be necessary for us to reappraise this position. In addition, should the EU proceed with the project of a “European Army” in such a way that it makes cooperation with NATO impossible, that too would raise the question of continued British forces on the continent as well as those of the USA.

The principal objection to the EU is that it is a project ploughing on towards a “United States of Europe” regardless of circumstances or the wishes of its member states. Europe is not eighteenth century America; the original thirteen states of the USA spoke the same language and joined together in a successful revolt against the same mother country. What worked there and then may not work here and now.

Was there an alternative to the EU and would it still be possible? Certainly there was significant support in the UK for the Gaullist idea of l’Europe des patries, a “Europe of nations.”  This would operate like the Commonwealth, with the nations of Europe cooperating on a variety of projects with a minimal secretariat to coordinate activities, unlike the vast army employed in Brussels. Whatever happens to Europe, we should maintain the idea of l’Europe des patries as a hope for the future.

The chaotic appearance of the present negotiations over Brexit may tempt us traditionalists to remain where we are. the drawback to this view is that “where we are” is on a moving train and only the illuminati know the destination.

It’s hard to believe our government is putting us in such a vulnerable position

John Ashworth of Fishing for Leave, who has campaigned tirelessly to Save Britain’s Fish from the EU says; It’s hard to believe that our own Parliament is going to place us in such a vulnerable, dangerous position with a transition. He writes:-.

Ever since Michel Barnier was appointed to lead the Brexit negotiations for the EU he has been clear and precise. Unfortunately, neither the UK Government nor the mainstream media have taken the slightest notice in what he is saying.

In his press statement of 20th December 2017, Barnier laid out the procedure the EU wants the negotiations to follow as everyone moves on to so-called “Phase 2”:-

  • By October 2018 a withdrawal agreement and a new treaty to cover only the transitional period should be in place, in order for time to get these through the various bodies by the end of the Article 50 process on 29th March 2019 when the UK leaves regardless.
  • The Article 50 of TEU allows the negotiation of the withdrawal agreement, which must be completed on time or else there will be no agreement, whether including a transition period or not.
  • The new treaty to be agreed will come into force on 30th March 2019, and I suspect it will be the reverse of an Accession treaty, with transitional derogations.
  • This is where it gets a little complicated. At 23:01 of 29th March 2019 the UK will have left the EU and will have become a “third country”. Apart from Barnier’s talk of a treaty, no one has provided any other detail, so we have to make a guess as to what will happen next.
  • You can’t leave the EU, take up third country status, and then carry on as if nothing had happened until 1st January 2021.
  • So the new Treaty which will cover the withdrawal agreement will come in to force in tandem with the EU (Withdrawal) Bill. Together, these two pieces of legislation would, I suspect, enable us to carry on trading, as we do at present, although it will be only for a fixed period covered by a time-limited transitional derogation.
  • On 1st January 2021, the derogation will cease, and either a new EU/UK trade agreement treaty will be created, or added to the new treaty otherwise it is possible the UK will be in the same position as we are under Article 50 with the transition coming to an end and no future agreement in place.

The transition period means we will be no further forward than now but will have left the EU and in effect re-acceded to obeying all EU law under our own steam.

This means Parliament will have taken back control only to give total control of all the UK’s affairs from 30th March 2019 to 1st January  2021 back to the EU even though we have officially left.

Meanwhile, the UK government will bang on about a “deep and special relationship” and the wonderful trade deal we will get, yet at the same time, the European Commission and Parliament have both made it very clear that we will be treated like any other third country while at the same time we would be trapped as a vassal state.

It is hard to believe that our own Parliament is going to place us in such a vulnerable dangerous position.

What are the electorate going to say and do when they find the UK trapped in obedience to EU law, locked out the rest of the world as we have agreed to do so?

With the EU able to claim ‘continuity of rights established’ as the UK undid the clean slate of Article 50 by agreeing to continue obeying EU law after leaving? This is not what the British people voted leave for an anything but Brexit.

The government cannot even get their terminology correct. “Transitional” is the word the EEC/EU has used since our 1972 Accession Treaty, so why is the government using entirely different terminology by talking about an “implementation” period?

Both the Prime Minister and David Davis claim that the plan for a transitional (or implementation) period was first mentioned in the Lancaster House speech of 17th January 2017. Michel Barnier, however, claims it was first raised in the Florence speech and this appears correct.

Mrs May said in Florence; “As I said in my speech at Lancaster House a period of implementation would be in our mutual interest. That is why I am proposing that there should be such a period after the UK leaves the EU”

But what she said in the Lancaster speech was; “I do not mean that we will seek some form of unlimited transitional status, in which we find ourselves stuck forever in some kind of permanent political purgatory”

Here, Mrs  May uses ”transitional” the commonly used word of the EU since 1972 for such a situation, so why switch to “implementation” if there is not a difference of meaning?  No one seems to have offered us any real answer.

In the House of Lords Select Committee session of 13th December 2017 asked what the difference was between transition and implementation but was not given an answer – what is the government missing or trying to hide?

In the Florence speech, she continued; “we believe a phased process of implementation, in which both Britain and the EU institutions and member states prepare for the new arrangements that will exist between us will be in our mutual self-interest.”

This all sounds very confusing, but I believe the key to Mrs May’s thinking remains the words in her Lancaster House speech: “I want us to have reached an agreement about our future partnership by the time the two-year Article 50 process has concluded

I take this to mean that she wanted an agreement concerning a long-term future arrangement concluded by Brexit day, which will be 29th March 2019. She did not mean that only a withdrawal agreement would be in place by that date, with a trade deal to be discussed during a transition.

She continued; “From that point onwards, we believe a phased process of implementation, in which both Britain and the EU institutions and member states prepare for the new arrangements that will exist between us will be in our mutual self-interest”.

“For each issue, the time we need to phase-in the new arrangements may differ. Some might be introduced very quickly, some might take longer.”

Her original objectives seems to be the very opposite of the direction in which we are now heading. Caused by so much time being wasted as the government deluded itself that adopting all EU law onto the UK statute book alone would be enough rather than cracking on with new UK policy to allow the UK to be entirely independent at the end of Article 50.

Instead of applying for an extension to Article 50 of TEU the Government has chosen formally to leave the EU at 23.00 hours on 29th March 2019 but then hand over our governance back to the EU, with no representation, and accepting all the institutions of the EU.

This is a situation far worse than anything we suffered during our 44 years of membership and all for the hope of a trade deal which still may not be ready to be signed in time.

The worst feature of this proposal is that during those 21 months the EU has been clear that the UK would have to accept any new EU legislation that comes into force during those 21 months.

Commission 830 – Final ANNEX 1 to the Recommendation for a Council Decision

  1. Any transitional arrangements provided for in the Withdrawal Agreement should cover the whole of the Union Acquis…. the Union Acquis should apply to and in the United Kingdom as if it were a Member State. Any changes to the acquis should automatically apply to and in the United Kingdom during the transition period.

Donald Tusk – Phase 1 talks – 8th Dec. ‘17
“As you know the UK has asked for a transition of about 2 years while remaining part of the single market and customs union…during this period the UK will respect the whole of EU law including new law”.          

However, David Davis was very evasive when questioned about this during the select committee session of 25th October 2017:

Question 89 – Mr Djanogly: During that period, will the UK have to accept new EU laws made during that period?

Answer – Mr Davis: One of the practical points of this, which anybody who has dealt with the European Union knows—as you will have done, I guess—is that it takes two to five years from inception to outcome for laws to make it through the process. Anything that would have any impact during those two years we are talking about will already have been agreed with us in advance.  Anything that happens during it will be something for subsequent discussion as to whether we propose to follow it or not.  That is where the international arbitration procedure might become important.

Mr Davis thinks we will have some choice, However, M. Barnier, made it very clear in his speech of 20th December 2017 there will be no cherry picking; we will have to accept EVERYTHING during transition period, including legislation currently in the pipeline.

This is a rather complex and technical subject, but I hope I have been able to convey just how dangerous this “transitional period” is.  Our fishing industry would still be stuck with the disastrous Common Fisheries Policy (CFP) but worse, as the EU could move the goalposts to it’s own advantage to cripple what it left of Britain’s fishing fleet and coastal communities.

If the EU can clear the UK fleet from the seas it can then invoke Article 62.2 of UNCLOS which says;
Where the coastal State does not have the capacity to harvest the entire allowable catch, it shall ….give other States access to the surplus of the allowable catch.

If the government signs up to a transition it would not really be Brexit in anything other than name only as the UK would become a vassal state.

Recalcitrant MPs:- where do you stand?

This letter was sent out by our secretary, Jim Reynolds, to a number of MPs who recently voted against the Government. It makes the point about democracy very forcefully and offers a useful template to anyone else wishing to contact our elected representatives in the event of future Brexit votes

It is often mentioned that some Eurosceptic MP’s had a majority for ‘Remain in the EU’ within their own constituencies. However, it is never mentioned that some pro-EU MP’s had a majority of ‘Pro-Brexit’ within their constituencies.

Why is this? One can guess.

These facts are actually irrelevant because the Referendum was not fought or decided on a constituency basis. It was fought on the entire 650 constituencies as one single voting area.

If you wish to treat it on a ‘constituency’ basis there were only two Parties involved, one for Stay and one for Leave.

The result was an 80 seat majority for the Leave Party. A huge majority. A true fact.

Let us not forget, it was Parliament itself that voted to devolve the decision on EU membership to us, in our Referendum.

What great principle of constitutional propriety do you stand for when it seems you have been quite happy to see Parliament circumvented and supplanted by the EU for 40 years?

The people who want to reverse a democratic vote result should be aware that this action is otherwise known as Fascism, an imposition against the majority will of the people.

Where do you stand on this?

Yours faithfully,

James Reynolds

Trust – the real loser

It would be all too easy to start panicking over last night’s defeat for the Government. By a very narrow majority, MPs voted to support an amendment which will give them a more realistic vote over the final deal. “Can Brexit be derailed?” some are asking and particular wrath has been directed against the 11 Tory MPs who voted against the government.

As Richard North has pointed out, what took place last night was little more than grandstanding:-

Since 1972, Parliament has been sitting on its hands, allowing successive EU treaties to be signed. It has then been content to ratify these treaties, holding unto itself only the power to make the decisions as to whether more and more of its powers should be outsourced to Brussels.  Then, when it finally came to whether we should leave the EU, the people made the decision, in the face of a parliament that, on balance, supported continued membership. And now that the people have decided and the government is in the process of implementing their decision, some MPs have rediscovered “democracy” and have demanded a vote on the withdrawal settlement negotiated under Article 50.”

Absolutely. There has been much hypocrisy among the supporters of the amendment. Thankfully, however, if MPs reject the final deal with the EU, it would not actually stop Brexit. The vote will still be essentially “Take it or leave it.” No one is talking about halting the Article 50 process. What would happen in the event of a rejection of the deal is that we would crash out of the EU with no trading agreement, which is the last thing the “rebels” would want. After all, if it is the unreconciled remainiac headbangers who end up bearing the blame for a catastrophic Brexit by blocking a deal, it will do little to their credibility if they then start clamouring for us to rejoin the EU.

Dr North’s comments raise a wider issue – trust. Does anyone trust anyone when it comes to Brexit? I receive more than a few e-mails from Brexit supporters who are yet to be convinced that a predominantly remain-voting Parliament led by a remain-voting Prime Minister has any intention of actually taking us out of the EU at all. Our sources, however, have been consistent in telling us that after getting over the shock of the result last year, the great majority of MPs, whichever way they voted, have accepted it and are prepared to do their best to ensure we achieve a successful departure from the EU.

Such an attitude does not necessarily imply any great confidence that the Government team at the sharp end of negotiations can be trusted to deliver a good deal. This year has seen frustratingly little progress in terms of the Government coming up with a Brexit strategy, let alone being able to discuss it with the EU. One can understand the frustration felt among some MPs on all sides and it is vital for us to distinguish between hard core remoaners and those MPs with genuine concerns about the lack of progress thus far.  Does the government actually know what it is doing? This is not an unreasonable question to ask.

Of course, there is also a distinct lack of trust between our team and the EU. In a speech earlier this week, Michel Barnier stated that “We will not accept any backtracking from the UK on commitments in the Joint Report.” These words carry the implication that  he is worried that we might indeed backtrack. On the other hand, can we trust the EU? Dr Anthony Coughlan believes that senior figures in Brussels are encouraging the Europhile Irish government  to be as obstructive as possible. Given the reputation of Jean-Claude Juncker, the Commission president, for dishonesty, such concerns cannot lightly be dismissed.

What will keep Brexit on track in this febrile atmosphere is – in spite of its flaws – our democracy. The scale of the backlash in the event of Parliament halting or derailing the Brexit process would be quite unprecedented. When Mrs May threw her hat into the ring to succeed David Cameron with a promise that “Brexit means Brexit”, she probably hadn’t grasped the scale of the task she was taking on, but she knew that failure was not an option. As a loyal Conservative Party member of many years standing, it must surely be even more obvious to her now than when she became Prime Minister that failure to deliver on her promise would result in her party facing meltdown at the next General Election and most likely, its greatest crisis since the repeal of the Corn Laws in 1846.

For the Tories, a successful Brexit offers more than just the chance of survival. It will enable them to bury the EU issue once and for all. Disunited parties do not win elections  and David Cameron was quite right in identifying the EU as one of the most divisive issues for the Conservatives. “Banging on about Europe”, he famously said, had alienated voters. As it happened, he ended up “banging on about Europe” more than he could ever have expected, but even though it finally cost him his premiership, he may have inadvertently given his successor the chance finally to lance the boil of the EU issue which has plagued not only the Conservative Party but British politics as a whole for far too long.

This is not to deny the challenges she faces – and last night’s vote has not made her task any easier. Nonetheless, a successful Brexit opens the doors to a complete overhaul of our political system including the chance to rebuild the trust in our institutions which EU membership has done so much to erode.  We would still be a long way from Switzerland where “only a few lunatics” wish their country to join the EU,  but if we get out without a major economic crash, it will be a step in the right direction.

 

Photo by San Sharma

The European Union (withdrawal) Bill 2:- Power grab?

In the first article looking at the European Union Withdrawal Bill, we set out the principle behind it but pointed out that it was impossible for EU regulations and directives to be transferred verbatim onto out statute books. As an example, we used one of the shortest and indeed, most pointless of all Regulations,  the so-called “Cuddly Toy Sheep” Regulation 1462/2006.

The object of this regulation is pretty simple  – that the toy in question may be given the appropriate  classification code for customs purposes. If we were to use the same codes on Brexit and use similar customs checking processes, transposition of this law into domestic law ought to be pretty simple. We remove all references to the Commission, the Treaties and references to Member states, extract the important bits, find a new template, perhaps even using the relevant bits of a piece of pre-1973 legislation, change a few words here and there and Bob’s your uncle! All done.

Actually, no. The Regulation we have been using as an example cross-references another Regulation 2913/92. This reference will have to be changed. Then the regulation which is cross-referenced talks about the Community Customs Code. Even if we were to be as foolish as to seek some sort of customs union with the EU, which we argued was very unwise, this bit will need to be re-worked as the term “Community Customs Code” would not be appropriate to describe the customs arrangements of an ex-member state.

So it is quite apparent that even a simple piece of EU legislation which our Government may wish to retain in a way that it works after Brexit exactly as it did before will need to be re-written in places. Given that in October 2015, the EU acquis amounted to 23,076 pieces of legislation and has grown further since, it is very apparent that our teams of Civil Servants will have a massive task on their hands  if everything will be ready for Brexit day.

If this concept is relatively straightforward to explain, a more complex issue is concept of the superiority of EU law over domestic legislation.  Our accession to the European Union granted power to the EU to introduce or amend legislation superior over British law “without further enactment.” (These three words come verbatim from the European Communities Act 1972.) On leaving the EU, what status do EU laws have relative to earlier domestic legislation? This is not an easy question to answer, even if you are a lawyer.

The concern among both Opposition MPs and the devolved assemblies in Edinburgh, Cardiff and Northern Ireland is that a combination of the re-writing process and the complexity of any new relationship between legislation which originated in Westminster and that which was passed down to us from Brussels will actually change the make-up of our statute books without Parliament being consulted or even being aware.  In other words, the Government  will use the EU (Withdrawal) Bill as an opportunity to further its own political agenda without requiring Parliamentary scrutiny. It certainly does appear to  strengthen the hand of the executive, rather than Parliament, because of the delegated powers it contains.

At the heart of this so-called “power grab” is the use of the Statutory Instrument – a facility which, in certain situations allows the government to make or amend legislation without Parliament having he power to change or even debate it. Given that MPs are our elected representatives, the very existence of anything which allows the democratic process to be bypassed is unsatisfactory. There is, however, a certain irony in the loudest critics of the use of Statutory Instruments being europhiles – after all they support our EU membership which reduced the power of Westminster. Ken Clarke famously said in 1996 ““I look forward to the day when the Westminster Parliament is just a council chamber in Europe” so any new-found commitment to Parliamentary democracy is somewhat hypocritical given the real loyalties of Europhile MPs lie in Brussels, not Westminster.

There is no doubt that Brexit provides us with an opportunity to re-boot our complete democratic process and indeed, this needs to go well beyond giving Parliament greater opportunity to hold the government to account by strengthening its powers of scrutiny. Our democratic process should be re-vamped to give us, the people, greater power over the people we elect to represent us and ot hold them to account if they, individually or collectively, do a bad job.

But that is for the future. The immediate concern of groups like Unlock Democracy is that the sheer complexity of repatriating EU law is that some legislation derived from EU Regulations and Directives may be weakened or lose its force completely. There is another possibility that the amount of work required in re-working all this legislation will end up with ambiguities more by accident than design.

The Hansard Society has come up with three proposals which at least mitigate these concerns:-

  1.  The EU (Withdrawal) Bill should be amended to circumscribe the powers it delegates more tightly.
  2. A new, bespoke, EU (Withdrawal) Order strengthened scrutiny procedure should be introduced for the exercise of the widest delegated powers
  3. A new House of Commons ‘sift and scrutiny’ system – with a dedicated Delegated Legislation Scrutiny Committee – should be established for all delegated legislation

These are eminently sensible suggestions. The only problem is the timescale. We cannot afford to arrive at Brexit day with any gaping holes in our legal system. To take one obvious example – there will be little if any pre-1973 domestic legislation relating to information technology, the Internet or mobile phones. Massive developments have taken place in these fields since we joined what has become the EU. It is therefore very likely that most of the legislation regulation which govern them comes from the EU. If a given piece of EU legislation slips through the net, some important aspects of day-to-day life for many of us would be completely unregulated.

This piece only scratches at the surface of the complexities our politicians and civil servants face. A huge task lies ahead of them and one which is even more critical than securing a trade deal with the EU.

However given we are talking about well over 20,000 items of legislation, are there some which are so obviously inimical to our interests as an independent, sovereign nation that they should be excluded from the European Union (Withdrawal) Bill altogether? We will consider this subject in the next article.