Washminster

Washminster
Washminster

Thursday, 9 June 2016

The EU Referendum Campaigns

I have to admit it - like many people, I'm really turned off by the way this referendum is being conducted. There is a relentless bombardment of the public by "information" (some of which is HIGHLY dubious) - endless "discussion" and attempts to look at the referendum from innovative angles.

I fear many people are now so switched off, that they won't vote. That would be a pity, because this is potentially one of the most important votes in recent British history. Its repercussions may be felt for decades. The consequences could be immense (yes there is some exaggeration - from both sides) but the result will leave a lasting impact (and that would be true even if there was a comfortable 'Remain' win).

The 1975 referendum did not end the debate once and for all, as was suggested at the time - and that had a large majority. A close result is likely to ensure that the losing side carries on the debate.

What sort of questions should people be asking in the next fortnight? [Unless it is too late - as it soon will be if you haven't registered yet; or, like me - you've already voted]

I suggest the following

* How CREDIBLE are the predictions? No one can foresee the future - the best anyone can do is to make predictions. What are those predictions based on? Are they blind faith (which I fear is the case for those who HOPE that Britain will enjoy exactly the same terms of trade as it currently enjoys); or are they based on a detailed analysis? What are the assumptions behind the predictions?

* Why did Britain join in the first place? (and what did it think it was joining?) There's been a lot of nonsense spouted about our expectations. We did NOT think we were merely joining a free trade area. In fact, we set up the European Free Trade Area as an ALTERNATIVE to membership of the EEC. When we did apply, some opponents proposed a North Atlantic Free Trade Area (then known by initials subsequently used for another project - NAFTA). Sadly, while many Brits thought this was a good idea, it fell embarrassingly flat in the USA. The 1957 Treaty of Rome (we announced we would apply to join in 1961) lists the objectives, the first being 

"DETERMINED to establish the foundations of an ever closer union among the European peoples,"

An ever closer union was not slipped in later, while we weren't looking - it was there before we applied.  

Similarly, we knew that EEC Law (now EU Law) took precedence over conflicting national legislation - because the principle had been stated in the earliest caselaw of the European Court of Justice (see the leading case of Costa v ENEL (1964) 

"BY CONTRAST WITH ORDINARY INTERNATIONAL TREATIES, THE EEC TREATY HAS CREATED ITS OWN LEGAL SYSTEM WHICH, ON THE ENTRY INTO FORCE OF THE TREATY, BECAME AN INTEGRAL PART OF THE LEGAL SYSTEMS OF THE MEMBER STATES AND WHICH THEIR COURTS ARE BOUND TO APPLY . 

BY CREATING A COMMUNITY OF UNLIMITED DURATION, HAVING ITS OWN INSTITUTIONS, ITS OWN PERSONALITY, ITS OWN LEGAL CAPACITY AND CAPACITY OF REPRESENTATION ON THE INTERNATIONAL PLANE AND, MORE PARTICULARLY, REAL POWERS STEMMING FROM A LIMITATION OF SOVEREIGNTY OR A TRANSFER OF POWERS FROM THE STATES TO THE COMMUNITY, THE MEMBER STATES HAVE LIMITED THEIR SOVEREIGN RIGHTS AND HAVE THUS CREATED A BODY OF LAW WHICH BINDS BOTH THEIR NATIONALS AND THEMSELVES . 

THE INTEGRATION INTO THE LAWS OF EACH MEMBER STATE OF PROVISIONS WHICH DERIVE FROM THE COMMUNITY AND MORE GENERALLY THE TERMS AND THE SPIRIT OF THE TREATY, MAKE IT IMPOSSIBLE FOR THE STATES, AS A COROLLARY, TO ACCORD PRECEDENCE TO A UNILATERAL AND SUBSEQUENT MEASURE OVER A LEGAL SYSTEM ACCEPTED BY THEM ON A BASIS OF RECIPROCITY . SUCH A MEASURE CANNOT THEREFORE BE INCONSISTENT WITH THAT LEGAL SYSTEM . THE LAW STEMMING FROM THE TREATY, AN INDEPENDENT SOURCE OF LAW, COULD NOT BECAUSE OF ITS SPECIAL AND ORIGINAL NATURE, BE OVERRIDDEN BY DOMESTIC LEGAL PROVISIONS, HOWEVER FRAMED, WITHOUT BEING DEPRIVED OF ITS CHARACTER AS COMMUNITY LAW AND WITHOUT THE LEGAL BASIS OF THE COMMUNITY ITSELF BEING CALLED INTO QUESTION . 

THE TRANSFER BY THE STATES FROM THEIR DOMESTIC LEGAL SYSTEM TO THE COMMUNITY LEGAL SYSTEM OF THE RIGHTS AND OBLIGATIONS ARISING UNDER THE TREATY CARRIES WITH IT A PERMANENT LIMITATION OF THEIR SOVEREIGN RIGHTS ."

There are some excellent histories available about the debate in the UK from 1950 to 1973. 



* What ideology lies behind the arguments? We tend in Britain to ignore the ideological framework behind political arguments. While both sides take support from across the political spectrum - there are in both camps a dominant ideological position.

The "Remain" camp does represent the mainstream range of ideologies represented in British political parties in the period from 1945 to date. There are differences in the extent of the role of the State - but most believe that the State should be involved in regulating the market, and limiting what Heath described as "the unacceptable face of capitalism"

A major driver within the "Leave" campaign is a belief, like Ronald Reagan's, that
"Government is not the solution to our problem; government is the problem". Regulation, except in the most extreme situation, should not be used to grant protections to workers or consumers, the 'free market' should determine how the market operates. It is this which lies behind their crusade "to free us from the shackles of Europe." There are left wing supporters of Brexit - and they hope that the present protections will remain should we withdraw - but do the leading lights of the Leave campaign share their hope? The ultra-conservative momentum within the Republican Party, which has left Goldwater and Reagan far behind, is powerful within the Farage-IDS-Gove wing of the Leave campaign.


Just a few thoughts - I'd welcome any comments.




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