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FROM GERRY DORRIAN, WRITER FOR THE QUARTERLY REVIEW
Democracy, Sovereignty and Elites

Shortly after Charles I was executed in the name of Parliamentary sovereignty in 1649, Parliament was abolished and an appointed “Barebones Parliament” installed. The episode illustrates the Italian elite-theorist Vilfredo Pareto’s thoughts on the fragility of elites: ruling groups tend to be very small, and are therefore vulnerable to being toppled. [1]

Amid the heat and light of the referendum to leave the European Union, we seem to be at risk of losing sight of a struggle among elites: the campaign of the judicial elite to gain hegemony over the political elite, the latter still being answerable to electorates despite democratic choice decreasing as cartelisation has increasingly turned discrete parties into wings of a superparty which has only started to redemocratise after the referendum.

The antagonism is far from new. As legal and political groups adjusted to the Representation of the People Act 1884’s extension of the franchise and prepared themselves for further inevitable extensions, jurist Albert Dicey pointed out that the “lawful supremacy” of Parliament over the judiciary had been sealed when William III became king not through succession but through statute – the 1701 Act of Succession, which is still in force today. [2]
In 2005, the judiciary’s campaign for hegemony emerged from eclipse with the Jackson v. Attorney-General judgement, which in referring to Dicey fired a shot over the bows of anybody who assumed that the UK Parliament would always remain sovereign:
The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution...[but] In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish. [3]
Three years later, in 2008, the UK was signed to the Lisbon Treaty, a series of amendments to the EU Constitution renamed so as to avoid the need for referendums. The Supreme Court was set up the next year but seems to have been erroneously named, as it can send European Court of Human Rights cases back only “in rare circumstances”, [4] and one of its own cases has produced the judgement that “a national court…should not without strong reason dilute or weaken the effect of the Strasbourg case law.” [5]

It seems a subservient position, but nonetheless it represents a victory of the judiciary as a class against elected politicians, and therefore against the electorate as a class. But it should not have come as a surprise, because Paragraph 3(1) and (2) of the UK’s European Communities Act 1972 demand that judicial notice be taken of any EEC (now EU) treaty as well as any decision of or expression of opinion of the European Court.

However, it should be noted that not all judges and lawyers are anti-democracy and, as the political reaction to the referendum result shows, not all politicians are pro-democracy. Lord Neuberger, while Master of the Rolls, backed up Bagehot’s investiture of “the nation” as “the present sovereign” [6] when he concluded in a 2011 lecture that “Parliamentary sovereignty is absolute, because the only true master is the electorate”. [7] And the nearest we can get to establishing what one might call the will of the electorate is to establish the majority view, as both Spinoza [8] and Scheler [9] counselled at either end of the Modern period. Majoritarianism doesn’t mean that minorities will be ignored, it simply serves notice upon elites that abstracting the suffering of minorities in order to commodify it in the service of de-centring majority traditions and culture for political purposes are at an end.

However, elites have been preparing for an upset such as the EU referendum (or indeed the US Presidential election) result. David Estlund coined the word “epistocracy” in 2013 from episteme, Greek for “knowledge” or “understanding”, to promote his view that “some citizens are better (if only less bad) than others with regard to their wisdom and good faith in promoting the better outcomes”. [10] Fellow philosopher Jason Brennan went further in a 2008 book with the chilling title Against Democracy, asserting that “When some citizens are morally unreasonable, ignorant, or incompetent about politics, this justifies not permitting them to exercise political authority over others”. [11]

In 2016 the Gramscian thinker Lorenzo Capitani took these viewpoints to their natural conclusion by saying that “education is key” to democracy. This might sound reasonable, but Capitani unpacks it to allow for “the downgrading of an individual” who fails to display sufficient knowledge to vote in an election or referendum, this being measured by exams. [12]

Here we have a problem: phrases such as wisdom, ignorance, good faith, morally unreasonable and incompetent about politics are highly normative and will be interpreted according to the mindset and purposes of those invested with the power to set and Mark Capitani’s exams. Also, when the Representation of the People Act 1948 abolished plural voting, full suffrage became full and equal suffrage, each citizen’s vote a tangible sign of his or her equality with every other citizen. To “downgrade” somebody, disabling them from voting in some or all elections and referendums is to proclaim that in at least some senses they are less equal than their voting compatriots, a view that must ring alarm bells.

Since we began this brief investigation into sovereignty with the English Civil War, one of the Europe-wide convulsions stemming from an opposed Reformation, I wish to conclude by suggesting that the EU referendum result marks a desire for political reformation. A majority of voters wish their democratic agency back, which may put them on a collision course with the Supreme Court with its President, Lord Neuburger, now stating court orders are a parallel lawmaking activity to Parliamentary debate, [13] a position which could see judges take the UK back towards EU membership outside of any democratic process.

The original conflicts only stopped with the Peace of Westphalia, from which national sovereignty evolved. I hope enlightened individuals among both parliamentary and judicial elites will resist the temptation of forming an antidemocratic power-sharing cartel – at least while judges are unelected – so some of history’s more unfortunate pages don’t have to be rewritten while the fragile wheel of our civilisation is reinvented.

Footnotes / sources

[1] Marshall, Alasdair J, Vilfredo Pareto’s Sociology: A Framework for Political Psychology (2007), Routledge 2016, p31
[2] Dicey, AV, The Law of the Constitution (1885), ed. JWF Allison, Oxford University Press 2013, p29
[3] House of Commons, Jackson v. Attorney-General (2005) p 47. Available at https://www.publications.parliament.uk/pa/ld200506/ldjudgmt/jd051013/jack.pdf, accessed 18/11/2016
[4] The Supreme Court, The Supreme Court and Europe. Available at https://www.supremecourt.uk/about/the-supreme-court-and-europe.html, accessed 22/11/2016
[5] parliament.uk, Judgments - Regina v. Special Adjudicator (Respondent) ex parte Ullah (FC) (Appellant), 2004. Available at http://www.publications.parliament.uk/pa/ld200304/ldjudgmt/jd040617/ullah-2.htm, accessed 22/11/2016
[6] Bagehot, Walter, The English Constitution (1867), ed. Paul Smith, Cambridge University Press 1991 p119
[7] Lord Neuberger of Abbotsbury, Master of the Rolls, Who are the Masters Now? Judiciary of England and Wales 2011, p18. Available at http://webarchive.nationalarchives.gov.uk/20131202164909/http:/judiciary.gov.uk/Resources/JCO/Documents/Speeches/mr-speech-weedon-lecture-110406.pdf, accessed 22/11/2016
[8] Spinoza, Benedict de, Theological-Political Treatise (1677), trans. Michael Silverthorne and Jonathan Israel, Cambridge University Press 2007, p202
[9] Scheler, Max, Formalism in Ethics and Non-Formal Ethics of Values (1916), trans Manfred S Frings and Roger L Funk, Northwestern University Press 1973, p529 [10] Estlund, David, Why Not Epistocracy? in Desire, Identity and Existence: Essays in honor of T.M. Penner, ed. Naomi Reshotko, Academic Printing and Publishing 2003, pp53-69
[11] Brennan, Jason, Against Democracy, Princeton University Press 2016, p17 (his emphasis)
[12] Capitani, Lorenzo, Informed Voting, Philosophy Now issue 116, October/November 2016, p19
[13] Lord Neuberger, President of the Supreme Court, Some thoughts on judicial reasoning across jurisdictions, Supreme Court 2016. Available at https://www.supremecourt.uk/docs/speech-161111.pdf, accessed 22/11/2016

Gerry Dorrian, 12 Dec 2016
FROM CHRIS SHELDRAKE, DORSET
Hard Brexit / Soft Brexit - What are the facts ?

Since the outcome of the referendum became known on 24th June, the forces of the Remain side have fought a rearguard action in an attempt to thwart the will of the majority.

The argument to hold a second referendum has largely been lost, despite notable interventions from Tony Blair and Owen Smith in recent days so Remainers have reverted to a more subtle argument based around the concept of “Soft Brexit.”

Arch-Europhile LibDem Nick Clegg is a leading proponent of “Soft Brexit” yet he of all people with wide experience in both the UK Government and Brussels knows only too well that this is a wholly disingenuous argument. There is no such thing as “soft Brexit”.
Background
Prior to the Referendum campaign, Cameron attempted to negotiate concessions to curtail Freedom of Movement and enable him to recommend remaining within the EU.

Despite knowing the importance of the issue of migration from published opinion polls and the thought that the rapidly approaching referendum might concentrate minds, it was made very clear by Merkel, Juncker and Hollande that no concessions were going to be made.

Cameron then tried to negotiate a worthless “emergency brake” to inward migration from other member states. Worthless, because it would be entirely up to the 27 and Commission as to if and when the brake could be implemented. Cameron must have known that winning the referendum would now be immensely more difficult and, despite assuring the country that if he could not win suitable concessions he would recommend leaving, he went ahead and led the Remain campaign from the front.

The Leave side fought and won the Referendum campaign on four clear policy lines :

1. Take back control of Immigration Policy
2. Take back control of our legal system, ending the primacy of the European Court
3. Take back the power to negotiate our own trade deals with other Countries
4. An end to EU Budget Contributions

Given the very recent experience of Cameron’s failed renegotiation, it was entirely obvious throughout the campaign that the Brussels establishment and the political leaders of the other EU major States would regard the continuation of tariff-free trade in goods and services between the UK and the 27 as incompatible with any one of these four demands, let alone all four.

Forthcoming Negotiations

As the four issues detailed above were the entire basis on which the Leave campaign won, they will inevitably be Red Lines in the Leave negotiations.

With the attitude of the rest of the EU clearly stated beforehand, it stands to reason that Leaving always had to mean being outside the so-called single market and also the Customs Union. (Being in the Customs Union requires member states to hand over all external trade negotiations to Brussels).

Leading Remain spokesmen including Cameron and Osbourne made all this very clear throughout the campaign.

Every Remain campaigner knows only too well that this is the case, yet they are being entirely dishonest by continuing to demand “Soft Brexit” in the hope that Mrs May can be persuaded to water down her four Red Lines.

In short, what they are trying to do is keep the United Kingdom firmly under the control of Brussels but without a place at the table at which we could make an ultimately fruitless attempt to influence the future direction of the Union. This would clearly be the worst of all worlds.

Negotiation Strategy

Much is being made about the need for confidentiality in our negotiation strategy yet there really is no need to hold back on this :

It is obvious that the Government will offer to continue with Tariff-Free trade in goods and services together with clear implementation of the four Red Lines. The deal is very much in the interest of the 27, given our trade deficit with them, and it can be sweetened with continuing cooperation in areas such as security and policing but essentially that is it. There may be some negotiation around the edges but essentially it will be up to the 27 to accept or decline this offer.

Given the frequently stated position from Brussels, they will almost certainly decline rather quickly. In that case major discussions can be ended and trade will have to revert to WTO trade terms.

Mrs May will then endeavour to ensure that we make a clean but friendly break with the 27 allowing time for discussions of the fine detail after we have formerly left.

Remember, the Article 50 period of 24 months is a maximum, every month we remain within the Union costs us another £850m in net contributions.

In whose interest is it to prolong negotiations ?

C Sheldrake, 06 Nov 2016
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