We are developing the social individualist meta-context for the future. From the very serious to the extremely frivolous... lets see what is on the mind of the Samizdata people.

Samizdata, derived from Samizdat /n. - a system of clandestine publication of banned literature in the USSR [Russ.,= self-publishing house]

Samizdata quote of the day

A major power centre has been challenged and almost by definition power centres have some control over the public narrative. For decades EU apologists have wielded their immense budget and nomination powers to promote people with the “right” attitude and projects with the “right” purpose. Simultaneously a highly skewed PR narrative has been dished out so incessantly (complimentary of unaware taxpayers) that numerous voters now confuse this narrative with the truth. This is why so many EU apologists genuinely seem to perceive the EU as a force for everything worthwhile, and every EU-critic as either dumb, a xenophobic throwback or misled by the PR-narrative of the other side.

Mark Brolin

It is such a shame, though, that the term “metropolitan liberal” is used here. I like to think I am a liberal in the John Locke/Ludwig von Mises use of that fine word, and also glory in living in the greatest metropolis on earth – London. It is one of those terms that is in danger of becoming hackneyed. Stop it.

Samizdata quote of the day

The statistical correlation between both age and relatively low levels of education, on the one hand, and a vote to leave on the other, was much remarked upon, not only in Britain but throughout Europe and the rest of the world. Age and lack of education were usually taken by commentators as a proxy for stupidity. The majority vote to leave was therefore a triumph of stupidity: for those who vote the right way in any election or referendum have opinions, while those who vote the wrong way have only prejudices. And only the young and educated know what the right way is.

While age is certainly not a guarantee of political wisdom, the ever-increasing experience of life might be expected to conduce to it. But in the wake of the vote, there were even suggestions that the old should have no vote because they wouldn’t have to live as long with the consequences of it. The reaction to the referendum exposed the fragility and shallowness of that each person’s vote should count for same.

The relation between political wisdom and levels of education is far from straightforward. It was educated people who initiated and carried out the Terror in the French Revolution. The Russian Revolution, and all the great joy that it brought to the Russian people, was the denouement of decades of propaganda and agitation by the educated elite. There was no shortage of educated people among the Nazi leadership. And the leaders of the Khmer Rouge were also relatively highly-educated, as it happens in France. The founder of Sendero Luminoso, who might have been the Pol Pot of Peru, was a professor of philosophy who wrote his doctoral thesis on Kant.

Theodore Dalrymple

Surge in support for EU on the continent… say polls

… and we all know how reliable and objective polls are, right?

“Brexit shocked people in the EU,” Francois Kraus, head of the political and current affairs service at IFOP, told Reuters on Wednesday.

“Seeing the Eurosceptics’ dream come true must have triggered a reaction in people who usually criticise the EU and blame it for decisions such as austerity measures.

“But when people realise the real implications of an exit, there’s new-found support for the European project,” he said.

Ah that magical term “austerity“. Taxing people less so that they get to spend their own money, rather than the government spending it, is not “austerity”. And there I was thinking keeping more of my own money was “abundance” rather than “austerity”. Go figure.

“With Brexit, the stagnant pool has been replaced by a running stream …”

Andrew Kennedy writes at Conservative Home about how the Conservative Party has seen a post-Brexit surge in membership. Commenters point out that the same thing has happened in the other British political parties. But why? None of the parties performed in recent weeks in a particularly attractive manner, so what’s happening?

I think that commenter David Webb, a recent (re)joiner of the Conservative Party, nails it:

I rejoined post-referendum because of a feeling that politics mattered again. Within the confines of the EU, nothing much was worth debating, as nothing much could be changed. Apart from the continuous drift to the bureaucratic European superstate, inertia ruled.

With Brexit, the stagnant pool has been replaced by a running stream … that’s not to say everything will be wonderful, but once again ideas count, and things can get done.

But then, I would think that David Webb nails it, because I said something very similar in my posting here at the time when the referendum result was becoming clear. I didn’t say that all the political parties would now have a membership surge, but I could have and should have, because it was the logical thing to deduce from what I was then realising. Political debate matters again, not just for me and for all those who think as I do, but for everyone with any sort of political opinion.

As David Webb says, “ideas count” means that bad ideas also now count for somewhat more than they did, unless they are the bad ideas that the EU stood for and imposed upon us, in which case they now count for slightly less.

It will be interesting – and no doubt in some ways rather scary – to see what British public opinion now consists of, given that for the last few decades much of it has been sedated by our EU membership. First out of the blocks were the racists, who perhaps imagined that Britain voting Leave meant that all the bloody foreigners now had to leave.

But what other political ideas will emerge? As I also said in that earlier posting: good times for blogs like Samizdata, where our good ideas will be celebrated anew and the bad ideas of others will be denounced. Again, speaking for myself, I find that the urge to blog is now stronger. Because it will count for a bit more than it did.

Perhaps the most important next discovery about another bit of British public opinion will concern the forthcoming Labour leadership contest. Labour has also, see above, had a post-Brexit surge in membership. But are those new members yet more Corbyn supporters, or are they anti-Corbynists, wanting a nicer and more traditional Labour Party? My guess is that the Labour leadership contest will be closer than it was last time around, with quite a few who voted for Corbyn last time voting against Corbyn this time around, but not close enough to unseat Corbyn. The Labour collapse will continue. But, what do I know? We shall see.

How will we know that we have left the European Union?

When it comes to actually doing Brexit – as opposed to merely voting for it – there appear to be a myriad of options. I do not know precisely how many there are but when three years ago the Institute of Economic Affairs held a competition to find the best way they were not short of entries. Worse still there are many people in positions of power who would very much prefer it if the UK did not leave the EU. If they fail to achieve their aim I am sure that some will try to create a situation where the UK has the appearance of independence but none of the reality.

So, how will we know when we have truly left as opposed to merely having left on paper? Here are a few tests:

  1. Is it possible to buy good in pounds and ounces, feet and yards?
  2. Can train operators also manage track?
  3. Have those annoying cookie notices disappeared?
  4. Are Google search results once again uncensored?
  5. Are some residents of the European Union denied the right to live and work in the UK?

I should point out that I am not particularly keen on the last one but it is a good test. Free movement within the EU is, after all, one of its fundamental principles.

I am sure the commentariat can think of a few more.

Act I, Scene II. A public place.

The Great Leader

Flourish. Enter CAESAR; ANTONY, for the course; CALPURNIA, PORTIA, DECIUS BRUTUS, CICERO, BRUTUS, CASSIUS, and CASCA; a great crowd following, among them a Soothsayer.

A hundred billion here, a hundred billion there, and pretty soon you’re talking real money

Bloomberg reports:

EU Banks Need $166 Billion, Deutsche Bank Economist Tells Welt

Europe urgently needs a 150 billion-euro ($166 billion) bailout fund to recapitalize its beleaguered banks, particularly those in Italy, Deutsche Bank AG’s chief economist said in an interview with Welt am Sonntag.

“Europe is extremely sick and must start dealing with its problems extremely quickly, or else there may be an accident,” Deutsche Bank’s David Folkerts-Landau said, according to the newspaper.

Rebellious Scots to crush


The anti-Jacobite sentiment captured in an old verse of the National Anthem emphatically does not seem dominant today, despite Mr Murray’s moment of rebellion on the morning of the Scottish independence referendum.

It is not a silly question to ask what effect Andy’s second Wimbledon Championship victory will have on how people in the various parts of the UK feel about Brexit and the possibility of Indyref2.

Who are you and what have you done with the real Simon Jenkins?

Remain voter and quintessential Guardian writer of the old school Simon Jenkins now says,

Ignore the prophets of doom. Brexit will be good for Britain

Now, with blood barely dry on their lips, project fear has mutated into project stupid-idiots. I find it staggering that the remain minority can accuse the Brexit majority of not knowing truth from lies – unlike in all elections? – and could not have meant its vote. It should therefore be asked to vote a second time, and show due respect to its elders and betters. What planet are these people on? I would guess the leavers in a second vote would soar to 60%, out of sheer fury.

Brexit is starting to deliver. British politics was constipated and has now overdosed on laxative. It is experiencing a great evacuation. It has got rid of a prime minister and is about to get rid of a leader of the opposition. It will soon be rid of a chancellor of the exchequer and a lord chancellor. It is also rid of two, if not four, Tory heirs apparent. Across the spectrum the left is on the brink of upheaval and perhaps historic realignment, if only the Liberal Democrats have the guts to engineer it. The Greens and Ukip have both lost their leaders. An entire political class is on the way out. As Oscar Wilde said of the death of Little Nell, it would take a heart of stone not to laugh.

France hasn’t always got the memo about being a team player

One of the arguments I occasionally hear is that the European Union has been an important force for peace in Europe following the Second World War and that further, the weakening of the EU as a result of UK departure will embolden enemies of Western Europe, such as Putin. However, here’s a thing: it was arguably the decisive defeat of Nazi Germany, and the determination of the NATO powers, led by the US, to contain the Soviet Union and combat forms of anti-West subversion, that was more important in keeping the peace. The EU was in my view part of the overall architecture of what the Western powers put together, but whether it was decisive is unproven at best.

And the the various missteps of the EU after the Berlin Wall came down have seriously reduced rather than increased the EU’s status as a stabilising, pro-peace, force. The greatest misstep of all was launching a single, fiat currency without full, democratically accountable political union. (I would not have objected to a common, hard-money system for those who wanted it, but that was never the aim of the European Union’s most ardent federalists.)

I can understand why leaders such as Margaret Thatcher (until the late 80s) regarded membership of the EU as one of those dues that had to be paid to keep the West together and why she fretted that it was becoming more of a problem towards the end of her time in office.

It should not be forgotten that during the 60s, under the Presidency of Charles De Gaulle, France withdrew itself from the command structure and active operations of NATO. Leave aside the reasoning behind it: you have a large, relatively strong Western European country leaving one of the main transnational groupings of the post-war era, a couple of decades before the Berlin Wall came down and before the end of Communism. But I hardly ever hear France getting heat for this. Maybe I read the wrong journals and websites.

It is worth remembering this episode if one ever hears a French commentator or politician bashing the UK for somehow “weakening the West” for getting out of an organisation that it did not like. Because France did leave an important group, but the sky did not in the end fall in.

Those poor fools bringing their pens into the polling booth

In the run-up to the EU referendum there was a widespread conspiracy theory that

the establishment is not above fixing the vote to thwart the democratic will of the electorate.

The run up to the referendum has seen the rise of the hashtag #usepens which urges people to reject the traditional pencils supplied at polling stations and instead use a pen to mark their cross on the voting paper. The thinking behind this is that it will then be impossible for some unknown hand to use an eraser to rub out your cross and make another mark in the other box.

Pathetic delusions. The elite have much more sophisticated methods than that:

Boss of property website Zoopla revealed to be behind Brexit legal action bid.

I suppose that one should not be surprised that people who saw nothing wrong with the EU’s favourite strategies of ignoring inconvenient popular votes or having referenda repeated until the (almost invariably less well-funded) opposition is worn down see nothing wrong with these views:

This leaflet, Why the Government believes that voting to remain in the European Union is the best decision for the UK, was sent by the Government to every household in the UK some weeks before the referendum. On page 14 it says,

This is your decision. The Government will implement what you decide.

An oft-repeated argument of those who seek to use a procedural trick to overturn the result is that the Leave campaign won as a result of ignorant tabloid-readers believing lies. If it turns out that the biggest lie of all was that the votes of the common folk would count equal to the votes of the quality, expect trouble.

Is Brexit unlawful unless Parliament approves? (Trigger warning)

You might think so from reports from the usual quarters, including the Grauniad in a piece, which even by the low standards of legal waffle, is utterly devoid of anything approaching a reasoned legal argument. But from their point of view perhaps, job done.

However, some heavyweight lawyers have weighed in with an opinion piece providing some arguments that Brexit would only be lawful if Parliament approved it. And you can imagine their concern that the clearly expressed will of the electorate might be ignored, why the BBC has even picked up this article, letting it be more widely known.

‘…we argue that as a matter of domestic constitutional law, the Prime Minister is unable to issue a declaration under Article 50 of the Lisbon Treaty – triggering our withdrawal from the European Union – without having been first authorised to do so by an Act of the United Kingdom Parliament. Were he to attempt to do so before such a statute was passed, the declaration would be legally ineffective as a matter of domestic law and it would also fail to comply with the requirements of Article 50 itself.’

So that was all a waste of time then, and Mr Cameron has resigned for no good reason (from his pov), I hear no one say.

Let’s look at this a bit, (btw my answer is ‘No’).

Article 50 – The relevant provisions of Article 50 read as follows:

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.

Article 50 is part of the Lisbon Treaty, and it is enshrined in law by an Act of Parliament (this Treaty was the one that Mr Cameron gave us that ‘cast-iron’ guarantee of a referendum on, until is was ratified, when it was ‘too late’ to have a referendum.)

Looking at 1, this seems to me to leave the decision to withdraw to the member state, and for it not to be a matter for the EU, and nothing more. If a member state decides to leave, it need only follow its own requirements, i.e. the EU does not presume to over-ride any such mechanism, fair enough, and the decision itself must be lawful, lest a would-be dictator seeks to rush out of the EU on the way to mimicking Belarus.

2 sets out the mechanism for the departing State to notify the European Council. Nothing fancy there, a verbal statement could do it, but a handwritten letter would be polite. “Dear Donald, We are ducking out of the European Union in accordance with the terms of Article 50, this letter is our formal notification thereof, Chauzinho, signed ….”. And then a negotiation starts.

Looking at 3, the Treaties shall cease to apply to the State in question etc. from the date of entry into force of the withdrawal agreement (whenever that might be) or, failing that, 2 years after the notification, unless the European Council unanimously* decides to extend this period (in agreement with the departing state)

(*Pay attention folks, 50 (3) crops up below.)

So if nothing is agreed to extend time, or if we don’t leave earlier, exit is automatic after 2 years. Perhaps the Chilcott committee will find a new task for the next decade or so, negotiating Brexit?

The problem, it seems, is that the lawyers think that the Royal Prerogative is constrained by law, in that the Sovereign (on the advice of her Ministers) can do no wrong, but also cannot do anything that is unlawful such as exercising her Prerogative when Parliament has provided for it to be exercised in a particular way or with prior Parliamentary approval, in which case it is no Prerogative at all, of course.

All very well, but the exercising of Article 50 is simply doing what ‘it says on the tin’, the right to withdraw is inherent in the Treaty, so exercising a right provided for in the Treaty is not (well it seems fairly obvious to me anyway) a breach of the Treaty or of EU law. One might ask, if Article 50 does not allow for withdrawal, what on Earth does it provide for?

But of course, it goes much deeper than that, the exercise of the Prerogative is constrained by Parliament and the law. The first line of attack is to argue that Parliament has to approve a decision to leave the EU.

Is this found in 50 (1) “…in accordance with its own constitutional requirements…” Of course, the UK has no written constitution (moan the Lefties), but the referendum was held by authority of an Act of Parliament, and it was only ever ‘advisory’, i.e. it was legally a pointless exercise, as the outcome mandated nothing, whereas a 2011 Referendum did mandate a change in the law in the event of approval to changes in the voting system, by delegated legislation within the Act. So the Act that provided for this Referendum could have provided for a mechanism for its implementation by its own provisions mandating the Prime Minister to trigger article 50 in the event of ‘Leave’ prevailing, or by requiring another Act (which is necessarily subject to Parliament’s will) to trigger Article 50. The Prime Minister may ignore this Referendum outcome completely, of that there is no legal doubt.

But then again, Parliament has constrained the power of the executive (i.e. the Crown as advised) in relation to treaties. Step forward The European Union Act 2011. This Act is a sort of ‘entrenching’ Act, which sets out various obstacles to Treaty modifications without a referendum in the UK, see section 4.
4 Cases where treaty or Article 48(6) decision attracts a referendum
(1) Subject to subsection (4), a treaty or an Article 48(6) decision falls within this section if it involves one or more of the following—
(a) the extension of the objectives of the EU as set out in Article 3 of TEU;
(b) the conferring on the EU of a new exclusive competence;
(c) the extension of an exclusive competence of the EU;
(d) the conferring on the EU of a new competence shared with the member States;
(e) the extension of any competence of the EU that is shared with the member States;
(f) the extension of the competence of the EU in relation to—
(i) the co-ordination of economic and employment policies, or
(ii) common foreign and security policy;
(g) the conferring on the EU of a new competence to carry out actions to support, co-ordinate or supplement the actions of member States;
(h) the extension of a supporting, co-ordinating or supplementing competence of the EU;
(i) the conferring on an EU institution or body of power to impose a requirement or obligation on the United Kingdom, or the removal of any limitation on any such power of an EU institution or body;
(j) the conferring on an EU institution or body of new or extended power to impose sanctions on the United Kingdom;
(k) any amendment of a provision listed in Schedule 1 that removes a requirement that anything should be done unanimously, by consensus or by common accord;
(l) any amendment of Article 31(2) of TEU (decisions relating to common foreign and security policy to which qualified majority voting applies) that removes or amends the provision enabling a member of the Council to oppose the adoption of a decision to be taken by qualified majority voting;
(m) any amendment of any of the provisions specified in subsection (3) that removes or amends the provision enabling a member of the Council, in relation to a draft legislative act, to ensure the suspension of the ordinary legislative procedure.

Zzzzz…. But nowhere in this Act has Parliament put any brake on the exercise of the notification to leave the EU under Article 50! That right is left untouched, yet it could have been constrained. Furthermore, this Act requires a referendum on certain decisions by Ministers (i.e. the Crown) by Section 6.

6 Decisions requiring approval by Act and by referendum
(1) A Minister of the Crown may not vote in favour of or otherwise support a decision to which this subsection applies unless
(a) the draft decision is approved by Act of Parliament, and
(b) the referendum condition is met.
(2) Where the European Council has recommended to the member States the adoption of a decision under Article 42(2) of TEU in relation to a common EU defence, a Minister of the Crown may not notify the European Council that the decision is adopted by the United Kingdom unless—
(a) the decision is approved by Act of Parliament, and
(b) the referendum condition is met.
(3) A Minister of the Crown may not give a notification under Article 4 of Protocol (No. 21) on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice annexed to TEU and TFEU which relates to participation by the United Kingdom in a European Public Prosecutor’s Office or an extension of the powers of that Office unless—
(a) the notification has been approved by Act of Parliament, and
(b) the referendum condition is met.
(4) The referendum condition is that set out in section 3(2), with references to a decision being read for the purposes of subsection (1) as references to a draft decision and for the purposes of subsection (3) as references to a notification….

Try an espresso to stay with me, but furthermore, the Schedule to this Act sets out ‘Treaty provisions where amendment removing need for unanimity, consensus or common accord would attract referendum’.

And here we find, at the bottom, Article 50 (3):
Article 7(2) (determination by European Council of existence of serious and persistent breach by member State of values referred to in Article 2).
Article 14(2) (composition of European Parliament).
Article 15(4) (decisions of European Council require consensus).
Article 17(5) (number of, and system for appointing, Commissioners).
Article 19(2) (appointment of Judges and Advocates-General of European Court of Justice).
Article 22(1) (identification of strategic interests and objectives of the EU).
Chapter 2 of Title V (specific provisions on the common foreign and security policy).
Article 48(3), (4), (6) and (7) (treaty revision procedures).
Article 49 (application for EU membership).
Article 50(3) (decision of European Council extending time during which treaties apply to state withdrawing from EU).

So Parliament has set limits on what Ministers of the Crown may do in respect of the Lisbon Treaty, and has said nothing at all about the exercise of the right to withdraw requiring Parliamentary approval, it has left this area alone. Yet, if the UK were to partake in a decision to change the requirement for unanimity from the European Council when extending time during which the withdrawal mechanism applies to a departing state, this would require a referendum.

Of course, triggering Article 50 and Brexit will still leave Section 2 (2) of the European Communities Act 1972 intact and in force, maintaining the supremacy of EU law in the UK after Brexit, because nothing in Article 50 dis-applying the Treaties would necessarily repeal that section of UK law. But that would leave a post-Brexit Parliament in the odd position of being bound by a predecessor Parliament’s decision to make EU law supreme and limit its power to amend EU law. Would anyone suggest that such a situation would last?

The final arguments against Brexit may well be that to leave the EU is a breach of someone’s Human Rights, and is therefore void or should be stopped, or, alternatively that the decision to leave is a breach of EU law and therefore void.

But of course, by the very nature of the EU, the UK’s courts, even if they were minded to grant an injunction or inderdict against notification of Brexit (making it void) cannot constrain the EU or stop it from doing what it wishes, such as showing us the door.

UPDATE 19072016: Court challenge to be heard in the High Court of England and Wales in October 2016.