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The Stupid (Parliamentary) Party strikes again

It would be very easy for Theresa May to pleasantly surprise me, given that I fully expect her to be the worst Tory PM since Edward Heath. She is a known quantity: inept, unprincipled, had a nice word for Sharia law once, and is also authoritarian, which is a hell of a combination. What that means is she is tough, but only against soft targets.

And she voted the opposite way to the majority of Tory voters on Brexit.

How Brexit could jump-start the British economy – and do it very quickly

When I started writing this posting, the invaluable Guido Fawkes had, at the top of his invaluable ongoing list of “seen elsewhere” items, a link to a Conservative Home piece by David Davis MP, with a long title on top of it which includes the words A Brexit economic strategy for Britain.

It deserves to be quoted at length, so I will now do that:

… [L]eaving the EU gives us back control of our trade policy, and gives us the opportunity to maximise returns from free trade.

Because any deals currently settled are obtained by finding a 28 nation compromise, the EU is clumsy at negotiating free trade deals. That is why we currently only have trade deals with two of our top ten non-EU trading partners. This is incredibly important to us, as about 60 per cent of our trade is with the non-EU world. In fact, we sell as much to non-EU countries with which we have no trade agreements as we do to the EU.

The first order of business is to put that right. As the amicable statements coming from the US, Australia, China and India show, these countries are as keen to knock down trade barriers as we are.

Single countries, with the ability to be flexible and focussed, negotiate trade deals far more quickly than large trade blocs. For example, South Korea negotiated a deal with the US in a single year, and with India, which is notoriously difficult, within three years. Chile was even faster, negotiating trade deals with China, Australia and Canada in under a year.

The EU, by comparison, takes more than six years to negotiate trade deals; the deals which would most benefit us, such as those with Canada or the US, take even longer. And without the often conflicting requirements of 28 different countries to consider, deals negotiated by single countries tend to be broader and have more favourable terms on matters that are important to us, such as services.

So be under no doubt: we can do deals with our trading partners, and we can do them quickly. I would expect the new Prime Minister on September 9th to immediately trigger a large round of global trade deals with all our most favoured trade partners. I would expect that the negotiation phase of most of them to be concluded within between 12 and 24 months.

So within two years, before the negotiation with the EU is likely to be complete, and therefore before anything material has changed, we can negotiate a free trade area massively larger than the EU. Trade deals with the US and China alone will give us a trade area almost twice the size of the EU, and of course we will also be seeking deals with Hong Kong, Canada, Australia, India, Japan, the UAE, Indonesia – and many others.

So much for the “jump-start” bit. Now for my own additional argument that this could well happen very quickly.
→ Continue reading: How Brexit could jump-start the British economy – and do it very quickly

Rebellious Scots to crush

Canadians.

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.

A trip down the memory hole to the time of ‘Brentrance’ – Maggie on Ted

The BBC has provided a reminder of the distant past, the early 1970s, when Ted Heath was Prime Minister and Mrs Thatcher was the Education Secretary. Despite a long feud between them after Mrs Thatcher’s rise to lead their party, Mrs Thatcher reportedly thought highly of Mr Heath.

‘…Baroness Thatcher eventually called her Tory predecessor “one of Britain’s greatest prime ministers”….’

Let’s see what the BBC has to say about that time:

Margaret Thatcher was Education Secretary in Mr Heath’s cabinet between 1970 and 1974. Although never close, they shared a commitment to free market policies.

As if. It is true that Mr Heath privatised Thomas Cook, a travel agency (it was nationalised during World War 2 after the German occupation of France as it had become French-owned by then), and some pubs in Carlisle. Yes, that’s right, the British Government had nationalised pubs around Carlisle during WW1, to ensure that munitions workers weren’t too drunk, and with the Kaiser safely in the past, the time was ripe for final privatisation of the remaining pubs came in 1971.

Perhaps every town should have a nationalised pub as a reminder of the ordeal of the drinkers of Carlisle, which effectively lasted a drinker’s lifetime. At a relatively small cost, we could have a live reminder of nationalisation in every town.

From 1972, the government began to change course.
A strike by the miners threatened coal supplies to power stations.
War in the Middle East in 1973 led to a sharp rise in oil prices, feeding inflation.

Inflation, that mysterious dragon that is scared off by high interest rates but which feeds on high oil prices, so the collapse of Bretton Woods and Nixon’s repudiation of the dollar/gold link had nothing to do with inflation, nor did wild printing of money.

Here is a pub price list from the time of decimalisation, 30th November 1970: A pint of beer in the same pub now, even with gentrification, costs not 12 new pence but something in the region of £3.60p, a 30-fold price increase in nominal terms.

Bar prices

However, what did Mr Heath, one-time friend of Deng and Saddam, decide to do in the face of inflation, and demands for pay rises? Reminder, a great many people worked in nationalised industries, and their pay rates were ultimately political decisions. Furthermore, going on strike (i.e. refusing to work) was often seen as the way to muscle a pay rise out of the government, rather than a route to bankruptcy.

Heath, memories of wartime comradeship still fresh, did not want a confrontation with workers, nor, having grown up during the depression of the 1930s, was he willing to see unemployment rise in order to curb inflation.
Instead, he re-introduced government control of prices and pay.

So what happens if you control prices and pay? We are not told. Is it too obvious to need to be said, or are there still people who deny that price controls can lead to distortions? Why not look at Venezuela for a grim current example? (it’s OK, he’s doing it to curb inflation).

And this ‘trade-off’ between unemployment and inflation? That other mysterious relationship that is simply assumed to exist? How about seeing if a market can clear without distortions?

And note, there was no dispute at this point between Mr Heath and Mrs Thatcher over Europe, Mrs Thatcher was completely for membership of the European Economic Community.

In some ways, we have come a long way from the absurdity of the political consensus of the 1970s, yet the State still looms large as does the passing off of old economic fallacies as realities.

And what is Mrs Thatcher reported to have said of that time?

“In the years since, he and I have not always agreed on every political thing, but I was, and I’m proud to have been, a member of his government …”

Quite how Mrs Thatcher got her reputation is a mystery to me, but not how Roy Orbison put it.

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.

Samizdata quote of the day

OK, you’re angry. But ignore the vote and tanks could be on the streets.

If you wanted to convulse the country with rioting on a revolutionary scale, to cause a lethal rupture between the governing class and the governed and even to provide the conditions for the rise of 21st-century fascism across Europe, here’s what you do.

After a referendum in which an unprecedented number of voters took part, and in which well over a million more people voted for change than for the status quo on our membership of the EU, you declare that the decision cannot be allowed to stand, chiefly on the grounds that the people were too stupid.

Dominic Lawson (article behind Times pay wall unfortunately).

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.

Samizdata quote of the day

This outpouring of anti-democratic sentiment, this unquestioned faith in the wisdom of the elite over the will of the people, did not begin with the Brexit vote. Through the rise of evidence-based policy and quangos, experts have crept into more and more areas of policymaking. And the sentiment that the masses are a bit thick, brainwashed by the media and stirred up by demagogues, has long greeted every General Election result that doesn’t go the metropolitan elite’s way.

But the Brexit fallout has brought this long unspoken prejudice out of the bistros and into the streets. The idea that the people are effectively incapable of taking part in politics, that you need a PhD in European law to have an opinion on EU membership, is now being shouted from the rooftops and scrawled on placards. Left-wing Remain types, so long the sort who would pretend to speak on behalf of the little people, are now openly calling for elite rule.

Tom Slater

If you want to know what might work, ask the establishment what you should NOT do…

Tax haven route won’t work for post-Brexit UK, OECD says.

Ok then, making the UK a tax haven is clearly an excellent idea, enhancing competitiveness vs. the rest of the OECD. Of course that could not possibly be why a mouthpiece of the OECD thinks it would be a bad idea, right? Right?

Samizdata quote of the day

During the course of this splendid campaign, every Ponce in Christendom seems to have stuck his patrician nose about the parapet, sniffed the Great Unwashed and called on the waddling geese of Strasbourg to stand between them and us ruffians. Luvvies and musicians (acting and music being two former escape routes for we chavs now colonised by public school spawn) of course, identity politics social justice warriors (writing the most currently disadvantaged people around – white working class males – out of history, one gripe at a time) naturally. And Eddie Izzard! There have never been a greater number of people I’ve loathed who have been made to cry all at once.

Julie Burchill

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.

Samizdata snicker of the day

Brave Sir Boris ran away
Bravely ran away away
When danger reared its ugly head
He bravely turned his tail and fled
Yes, brave Sir Boris turned about
And gallantly he chickened out

Bravely taking to his feet
He beat a very brave retreat
Bravest of the brave, Sir Boris!

(h/t commenter Pardone)