November 5th 2016

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Articles from this issue:

COVER STORY Hazelwood closure will push up power prices in Victoria

CANBERRA OBSERVED Out of the shadows of the backbench ...

FOREIGN AFFAIRS Obama Administration exacerbates Syria conflict

INDUSTRY AND ENVIRONMENT Wikileaks reveals U.S, funding behind anti-coal campaign

TAIWAN New president cautious, ambivalent towards Beijing

OPINION How to convert citizens into subjects and victims

FINANCE Untangling some knots of international tax

BRITISH AFFAIRS Brexit revisited: courts may come into play

LITERATURE The paradoxical idyll of Tolkien's Shire

HUMOUR Assembled and curated by Sebastian Gunlighter

MUSIC Unresolved melancholies

CINEMA Bittersweet Woody Allan: Cafe Society

BOOK REVIEW From von Ranke to van Gend

BOOK REVIEW More mystery than history

BOOK REVIEW An empire's collapse


NATIONAL AFFAIRS Cardinal rebuts commission's 'Get Pell' campaign

U.S. AFFAIRS First Brexit, now Trump: it's the economy, stupid!

ANALYSIS What is possible to a Trump Whitehouse

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Brexit revisited: courts may come into play

by Colin Teese

News Weekly, November 5, 2016

I know this is my second recent bite at the Brexit cherry (could an uglier word have been chosen to describe Britain’s withdrawal from Europe?). However, as the whole subject is on the move, there is much new stuff to comment on.

For the record, let me again make clear my own position on the issue. I didn’t predict that the British people, by majority, would vote to sever Britain’s relationship with the European Union. I did believe, however, that they had made the better choice. Apparently, I was among a relatively small minority of observers from outside Europe who thought this way.

A decade and a half ago I was a supporter of the European Union, in its efforts to bring Europe together. That was before the emergence of the Maastricht Treaty, which, among other things, committed the member states of the European Union to the adoption of a common currency, the euro.

All of this seemed to be a step too far too quickly. Furthermore, given the detail of the treaty, it was a project destined to fail.

Britain joined the European Economic Community (EEC), as it then was, in 1973 as an enthusiastic supporter – perhaps because it had been denied membership for many years by French President Charles de Gaulle.

De Gaulle, not without justification, believed that Britain’s commitment to the ideal of European integration was less than wholehearted. Especially was he concerned with Britain’s close wider political and economic connections with its Commonwealth and the U.S.

The Maastricht Treaty, signed in 1992, along with its commitment to the common currency, was a critical issue for Britain. To this day the problems for Britain of being required to give up the pound sterling as a condition, long term, of being part of Europe have never been fully recognised among those who supported remaining inside the EU.

At the time of the Maastricht Treaty negotiations, the British government correctly judged that it was against the country’s commercial interests to adopt the newly created common currency, the euro. To maintain its position as a major financial centre, so the thinking went, Britain needed to keep its own currency.

What these policymakers also knew, but deemed it unwise to reveal at the time, was that Britain would never be able to surrender its currency and keep its position as a financial hub.

Nobody questioned this thinking at the time the decision was made to stay out of the Eurozone, but few, if any, among Britain’s committed Europhiles realised that the decision carried implications for the future of British relations with Europe.

Ignored completely was the fact that the Maastricht Treaty was evidence that the Brussels bureaucracy was rushing headlong in the direction full integration. Sooner or later that would bring up the matter of where Britain stood on the currency question.

Wiser heads, of course, were alert to this problem. They also sensed that it was better to leave the future to take care of itself on this matter.

And so it remained, until it became the melancholy task of British Prime Minister David Cameron to call a referendum that was, in effect, to bring the future into the present.

The most interesting point about all this is that when the time came for the referendum, the question of the currency was nowhere to be seen. Other issues, essentially political in nature, had become the fundamentals of the referendum: notably, questions of sovereignty and immigration.

The British Parliament had become subordinate to an unelected bureaucracy in Brussels when it came to law making and enforcement. On immigration, free movement of people conferred on every EU citizen the unfettered right to settle and work in Britain, and to enjoy British social services.

The immigration issue became especially sensitive as high unemployment settled over Britain. Central Europeans quickly became aware that Britain’s social services were better than those in most of the rest of Europe.

In recent years the architects of the European experiment have made many mistakes. Reference has already been made to the problems of the Maastricht Treaty. Of only slightly lesser importance was the Schengen Agreement, which opened the way for the free movement of people across EU borders.

It was yet another example of pushing too hard too fast. How could such a policy be expected to work between countries at different stages of economic development, where the availability and value of social services varied enormously.

All the more so as migration flows from outside the EU were to become a problem linked with the rise of acts of terrorism against European nations.

This was the background against which Mr Cameron called his referendum. A prelude to the vote was an attempt by Mr Cameron to negotiate more favourable arrangements on some of the contentious issues with the EU in Brussels.

Mr Cameron had hoped to get some concessions from Europe which he could present to the British people as a reason for voting to stay part of Europe. In fact he failed to gain a single substantive concession. The fact of Mr Cameron’s failure must have hardened the resolve of those skeptical of the benefits of staying inside the EU. Perhaps even, it was the compelling issue in the failure of those who campaigned in favour of remaining in Europe.

Notwithstanding, those in favour of staying in Europe seemed to be totally unprepared when the Brits actually voted to leave. Worse still, the Remainers (as they were called) have since shown themselves totally unwilling to accept the result.

All kinds of arguments have been put forward. “Those who voted to leave the EU did not understand what they were doing”. “The margin was too small to justify such a fundamental change”. “A vote for leaving did not necessarily mean that Britain must leave, unless the House of Commons passed legislation to that effect”.

Some of these quotes suggest desperation and discontent with losing, rather than common sense. The final quote, however, is to be taken seriously: indeed, it raises constitutional questions that it now seems the dissatisfied losers (many of whom stand to lose financially if Britain leaves the EU) are determined to have tested in the courts. Apparently, the outcome will turn on a question of British constitutional law.

To an outsider, British constitutional law is a minefield. For a start it is unwritten. Unlike ours, nobody can open a document and point to a paragraph where the only complication (not inconsiderable) is how the courts will interpret it.

How Brexit it implemented is being hotly debated between those who want to stay in Europe and their opponents. Brexiteers are clear: Parliament legislates, the government governs, but only the courts can resolve the issue.

The reasons why this action has been taken are interesting. Many had thought that the newly appointed Prime Minister, Theresa May, who had backed the “Remain” campaign, would be sympathetic to an outcome aligned with that position. They were to face immediate disappointment. Her first public utterance on the subject was to proclaim: “Brexit means Brexit.”

As if this were not enough, Mrs May was to turn disappointment into dismay with her provocative address at October’s Conservative Party Conference. She revealed to an enthusiastic audience that her Government would be invoking article 50 of the Lisbon Treaty (the instrument through which withdrawal from the EU is negotiated) no later than March next year.

So the die was cast. Her path was one that the media was already calling “hard Brexit”. There were to be no halfway measures; instead there was to be a complete break.

But Mrs May had more bombs to explode. The negotiations, she announced, were not for the House of Commons or the House of Lords to sanction; they were for the Government to conduct. And so it was that the last prop supporting the stalwart Remainers was kicked away.

This was one step more than they could accept. No wonder they are heading for the courts.

But even that was not all. In introducing her Government’s outline of the approach it would be taking to negotiating Brexit, she made clear the broader message that the government had taken from the Brexit vote; that ordinary British voters were deeply unhappy about the way Britain was being run. She indicated that she and her party understood these concerns and sympathised with them.

Thus far too little concern had been shown for the plight of ordinary people. Henceforth the Conservative Party intended to show that it was the only party capable of dealing with these concerns. This announcement also drew strong applause from the floor of the conference.

Mrs May, it seems, is not the only member of her party expressing such views. Other establishment figures have been making similar statements to the effect that the people want change away from the idea that policy is made to serve, above all, elite interests.

All very interesting, and it has to be said, bad news for a Labour Party in total disarray and unable, any more, to agree on what it stands for.

Mrs May apparently means what she says and seems capable of carrying her party with her. If so, British politics, from the point of view of outsiders, will be a stimulating spectacle even in a changing world.

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