A Matter of Law and Liberty

The EU Referendum debate has not paid enough attention to the risk to our liberty-based legal traditions implicit in a Remain vote

Post-Brexit trade deals of varying merit. Immigration. The effect of a Brexit on the UK economy. These are the matters that have dominated the EU Referendum debate.

But the list contains one glaring omission. Almost nowhere has there been discussed the risk that a Remain vote, and its near-certain consequence of deeper integration into the EU, poses to the individual-liberty based English legal tradition.

EU legal gavelBecause part of the EU’s overall aim is explicitly to create a specifically EU corpus juris  and what it openly calls a “common legal space”: an expanding both geographical jurisdiction and body of law applicable within it, made by, and administered by, the EU at supranational level.

As ever with the democracy-averse EU, though, the project proceeds both by increments and by stealth, with its ultimate objective not disclosed, because it knows that, were it to be openly proposed in one fell swoop, the voters of member-states would reject it out of hand. But its aim is nothing less than a body of pan-EU law will eventually supplant that of nation-states.

This poses an especially enormous problem for the UK, because of our fundamentally hugely-different legal tradition. Our common law grew from the ground up: it developed through individual judges adjudicating on the individual real-life cases brought before them, weighing the facts on the ground, and making decisions which became precedents over time. Indeed, much of our statute law enacted via the legislature, rather than by judicial decision, has traceable common-law roots.

economic-freedom-index-world-2010_mapThe common law, based on individual liberty, enforcement of property rights, freedom of contract, separation of legislature and judiciary, and protection of the individual from the arbitrary caprices of state and government, is arguably our greatest-ever export. That the Anglosphere countries whose legal systems are based on it have consistently formed some of the freest and most prosperous societies on the planet isn’t an accident, but a discernible consequence of it.

Continental countries, in contrast, have to a much greater extent opted for an entirely different legal tradition of codified law, more often originating in the rarified air of abstract political philosophy, rather than grounded in the gritty, often untidy, reality of peoples’ actual lives, interactions and contracts.

The Continental legal tradition reflects a vision of law, liberty, personal rights, and crucially the relationship between state and individual, that is elementally inimical to our common-law and liberty-based tradition: a conflict summed up in the most frequently observed distinction that in the English tradition you may generally do anything which is not specifically prohibited, as opposed to the Continental tradition, where you may generally do nothing that is not specifically permitted.

Yet it’s that Continental tradition that informs the legal systems of the vast majority of EU member-states and which the EU’s corpus juris will overwhelmingly reflect. That shouldn’t be surprising: the EU is, after all, nothing if not a deliberately statist, top-down, technocratic, democracy-circumventing project, and for its legal system not also to conform to that philosophy would be an astonishing inconsistency.

Scales of Justice EnglishBut it’s into that illiberal tradition that a vote to Remain in the EU will consign us. Or, more likely, condemn us. In prospect are the subsumption of some the most cherished institutions and protections of our English common-law liberty – habeas corpus: the right to know the charges arraigned against you: the right to expeditious justice: the right to face your accusers in public court: the right to be tried by a jury of your peers, not by state-appointed judges – into the Continental legal tradition where these are either absent, muted, or susceptible to being set aside on the grounds of State expediency.

The law of the jurisdiction of England and Wales, whether common law or statute, doesn’t belong to MPs, much less to Ministers or Government. It belongs to us, the people. When we send MPs to Westminster, we don’t transfer ownership or possession of our law to them: we merely delegate them temporary custody of it and political responsibilty for its administration – nothing more. The law of England and Wales is not the exclusive property of transient Government or MPs to jettison, abandon or give away to another polity, without our specific consent.

Anglosphere 1We aren’t “European”. Our core values, beliefs & legal traditions give us far more in common with our Anglosphere first cousins. The Continental tradition of codified law & centralised statism is fundamentally inimical to Anglosphere ideas of freedom & liberty. Throughout our history, we’ve chosen different solutions to these fundamental questions than have our European neighbours: solutions developed ground-up, rooted in individual liberty & lived experience, not derived from abstract theory of political philosophy.

It’s that rich heritage that we still have a couple of hours to retrieve and re-energise.

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I Wasn’t Wrong. I Just Underestimated.

In my March 2015 prediction of the tenor and conduct of the EU Referendum, if anything, I underestimated just how dirty it would be.

Back in March 2015, I wrote an article for fellow-Brexiteer Ben Kelly over at The Sceptic Isle, on how the EU Referendum, whenever it came, would play out. (Ben has archived it, so I can’t link to it, but fortunately I kept a Word copy of it).

The first part of the piece was a prediction of how the referendum would be conducted. Here it is:

“Whenever it comes, the EU Referendum campaign will undoubtedly be the dirtiest and most deceitful plebiscite ever seen in Britain. For the EU-enthusiasts disproportionately represented in opinion-influencing circles, there is simply too much at stake for it not to be.

For them, an OUT vote means a popular re-affirmation of the democratic, sovereign nation-statehood they have spent almost their entire adult lives repudiating. It means a national rejection of the centre-leftish, universalist, democracy-bypassing supranationalism of unelected elites, which they believe is the necessary civilising antidote to the unpredictable caprices of robust, accountable one-country pluralism.

The overwhelmingly EU-phile politico-media establishment, including the three main legacy parties, will exaggerate the supposed benefits and advantages of EU membership, and simultaneously downplay or suppress its drawbacks. There will be massive scaremongering to overstate, in wildly dramatic fashion, the alleged risks of exit, whether to UK jobs, economic growth, ease of travel, or even our much-vaunted but much less evident “influence”.

Even in the 2014 EU Parliament elections, we saw the readiness of the EU-phile movement to retail the risible “3m jobs at risk” meme, and the media’s willingness to boost it, despite its evident falsehood. The personal smearing of advocates for withdrawal will be constant, and vicious. It will be a media negative-propaganda campaign such as we have never before seen.

Hand-in-glove with the media will be what will be trailed as “the voice of business” – more accurately, the voice of big business and its representative organisations like the CBI, which benefits most from the crony-corporatism that the EU exemplifies. Big business values the EU for the competitive advantage it brings: large firms have sufficient size and economies of scale to absorb the mountains of EU regulation and attendant compliance costs that both deter new entrants and cripple their smaller, nimbler competitors. They will do everything to maintain that advantage.

Meanwhile, pro-EU campaign groups and third-sector “charities” and quangos will be vocal in support of EU membership and its alleged benefits as never before. Our emotions will be assaulted by heart-rending warnings of hardship and unfairness to recipients of charity if EU regulations cease to apply on exit.

The anti-exit movement will be backed by massive financial support, not least from the EU itself. For the EU, the stakes in a UK exit referendum being held at all are huge – remember, the entire European super-state project is predicated philosophically on the historical inevitability of ever-closer union – but the risks to the EU from that referendum delivering a UK exit are incalculable.

Britain would be the first major country, and economy, to resile from the project. Not only would it take its contributions with it, but it would almost certainly tempt others to follow. The possibility of it being the thin edge of the wedge, and the first step in the breakup of the entire edifice, could not be discounted.

The extent of EU funding which has been funnelled to the BBC and the CBI is well-known.

BBC CBI comp

But the EU has also been quietly suborning civic society, and even local government, with EU funding, for many years. The recipients cannot be expected to do other than campaign vociferously for its continuation. The EU will pour money into the pro-EU, anti-exit campaign – because its own very survival could be at stake.

History shows, too, that the status quo exerts a strong voter pull in referenda, and that voting intention in favour of the status quo actually hardens as polling date approaches. Dangling before the electorate the idea that the intended change represents a risky leap into the unknown unfortunately works.”

The purpose behind this quick post isn’t to gloat, or to say “See, I told you so!” I’d much rather I’d been completely wrong, and that after a robust but more-or-less civilised campaign on the substantive issues, Britain was now irreversibly on course for a Brexit vote.

It’s just to record ruefully, not that I was right, but that I underestimated the depths to which the Government, the mainstream political parties (albeit with some honourable exceptions within them) and the Remain Campaign would sink – or perhaps that should be dive.

But the cynical, shameless exploitation, by all, of the MP Jo Cox’s murder, culminating in what Conservative Woman‘s Laura Perrins rightly calls something that should go down in the political handbook of infamy, plumbs depths of ethical depravity and turpitude even I could not have imagined.

That Britain now seems about to commit what will arguably the greatest act of national self-destruction of the Modern Era is bad enough. That it should do so as a result of being susceptible to baseness of this magnitude is profoundly depressing.

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