Jim Stewart's Blog

I started to look through some of the “unexpected” votes recently. One thing that strikes me is that there seems to be a real pressure for change where the votes have taken place. The other thing is that the votes seem to have little to do with the “facts” presented by the great and the good.

I’ve listened to a few of these great people recently and I find their views disturbing – they held the view that the common folks were too stupid to make important decisions. There is a bit of truth in this – if I want a medical help I ask a doctor, not a plumber, so if I want a country run I want an expert to do it. But to say that only the intelligentsia should decide on how the country is run is like saying common folk are too dumb to tell the difference between a doctor and a plumber.

The thing that probably annoys these great and good is that these common folks are not listening to the facts the great want to impart. We are living in a post factual period. But what has replaced the facts – my view it is faith based politics.

Trump will make America great again. Brexit will mean we take back control. But try to find details of how this will happen and you will find it hard. These are faith statements, not logical deductions, and the great thinkers find that offensive. They cannot argue facts against faith. Try asking what European law we will repeal after brexit, or what the new health system Trump will put in place – there are no clear answers. The interesting thing is that, because these are faith statements, nobody can say how it will work out – it could be good or it could be bad. Trump may make America great again, Brexit may be better for Britain in the long term. Truth is, both decisions are too complex to know the real outcome.

But there is a promise of change. And that is what people want – change. But the change people want may not be the change being promised. An interesting question is what will happen if the change people want fails to be delivered. What happens if Brexit fails to improve the health service, fails to control borders, fails to change laws, fails to improve trade? What will the people demand then?

So here we are, heading to Brexit, then the court says – wrong way, then there is an appeal, then the people look set to march on the courts. I wrote to the cabinet office before the referendum because I was a little confused about the referendum question – and they have answered 4 months later effectively saying they are still trying to work that out.

What on earth is going on? This isn’t healthy for our country.

I’ve been talking to people on both sides and one thing struck me – everybody feels passionate about democracy and is fighting because they feel their voice is being ignored. It’s the one thing that seems to cover the majority of us, BeLeavers and Remainers together. And perhaps that’s what lies behind Trumpsit as well – it certainly seems like a factor.

So can we agree to differ on our views – but together stand up for our voices being heard?

We have had a referendum, and the majority voted to leave Europe. But not a big majority. However the result applies to us all. It’s not just those that voted to leave that are going to leave, it’s those that voted to stay and those that didn’t vote. So how do we work for a Brexit deal that takes all of our views in to account? Brexit for all and not just for the few.

I’ll start with a simple analogy. I have a problem with the roof over my garage and need it repaired. I could climb up there and do it, but I don’t like heights, and lets face it – my DIY skills are okay – but a fair bit short of professional. So I want an expert. Well, there is a hospital just up the road, I could ask one of the surgeons to come and do the work, but that might end up with a worse repair than I could do. I really need a roofer. I need the right person for the job.

So who are the right people that can take the result of the referendum and turn it into a strategy for the country? Is it really Boris with his secret plan? And remember it’s a strategy for all of the country, not just those that voted to leave (but it certainly needs to take into account the result of the referendum – that’s why we had it). We need a bunch of people that can represent us all – some that Remoan, and some that BeLeave (and maybe some that really don’t care).

Why can’t that be the bunch we call parliament? I mean, isn’t that the job they are supposed to be good at – putting different views to each other and coming up with an answer for the whole country? I know our political system and out press sometimes makes them look like buffoons, but having met several I can assure you they are not nearly as dumb as they are made to look. Surely they are the right experts for this job, and we hired them for it when we voted for them.

And you know – if I trusted my representative to speak up for me I think I would be happy for the plans to be secret. But one thing I have noticed is that both sides feel skeptical about the secret plans – because we all feel they are not representing us – both sides!

Isn’t it time parliament were told to get on with it? Isn’t it time we made our voices heard to our representatives and told them to get off their backsides and represent us in deciding how we move forward TOGETHER?

And a postscript to save Remoaners and BeLeavers starting to argue that they are right:

For those of you that think the referendum was binding and is all you need then go have a look at the brief to parliament that was issued to explain the law. Look at section 5.

And for those of you that think parliament will over-rule the referendum result go have a look at section 6 of the same document.

There is a legal challenge going on at the moment over Brexit. I have no doubt this is partly to do with people trying to delay Brexit. And others see it as a bunch of poor losers trying to stop the will of the people. I think there is a little bit more to this.

Just for a moment lets say we voted 90% to leave Europe and the government (that’s 22 MPs and 1 member of Lords – the cabinet)  decided not to go ahead with it. What would you do? Would you try to take them to court? Well you can’t – you see the referendum was only advisory in legal terms. The only thing that would legally force the government (the cabinet) to act in a specific way is a vote of parliament.

This is at the core of the matter – what can those 23 people do on their own? Not only that, but this sets a precedent. Some people talk about a second referendum, but actually that is worthless if the government are allowed to claim “royal prerogative” on this issue. What the precedent means is that any future government will have the power to re-join Europe, without a referendum and without the approval of parliament. In fact it means that, even if we have another referendum with a massive majority to stay out, the government of the day can still ignore it and choose to rejoin.

For a minute just think about some of the arguments for leaving. The European Courts over-ruling our government. This is one of the biggest issues that people wanted to fight against. Perhaps that’s because the fuzzy difference between parliaments and government.

We have a very fuzzy idea of the different parts of government here in the UK. The USA have a clearer picture here. What we call government is the “executive branch” – the bit that does things. Parliament is what you call the “legislative branch” – the part that sets laws. The courts are the “judicial branch”. The courts don’t make up laws – but they do make sure the executive branch does what the legislative branch sets out in law. In other words the 23 people of the cabinet and their civil service are only able to do what the parliament authorizes them to do and the courts hold them to account.

The complaints about courts controlling governments were actually about governments having to do what the elected parliaments require them to do. They were challenging parliamentary authority. And that is exactly what is happening here, and why we need to make sure parliament ratifies Brexit.

On the other hand the SNP must be rubbing their hands with glee over this. You see, if “royal prerogative” can be called on this issue it means the executive branch does not need the blessing of the legislative branch to initiate leaving a union. It will set a precedent that means the Scottish government will be able to initiate independence despite the referendum.

At the heart of the legal case is who runs the country. The government try to sell it as they are doing what the people have asked – but in actual fact it is giving them the power to ignore the people in the long term.

Okay, lets start this one by looking at the legal definition. We start with the European Union Referendum Act 2015, which says:

A referendum is to be held on whether the United Kingdom should remain a member of the European Union.

The important thing to note is that there is no definition of the European Union in the Act. This means we need to look elsewhere for the definition. If we look at the European Union (Amendment) Act 2008 we can find the definition:

(1)In section 1(2) of the European Communities Act 1972 (interpretation) before the definition of “the Communities” insert—

““the EU” means the European Union, being the Union established by the Treaty on European Union signed at Maastricht on 7th February 1992 (as amended by any later Treaty),”.

(2)A reference to the EU in an Act or an instrument made under an Act includes, if and in so far as the context permits or requires, a reference to the European Atomic Energy Community.

So the European Union in the referendum is a mixture of a number of different communities, including the European Atomic Energy Community. Never heard of it? well it is a community that has existed for a long time, and it is more dominant than the other communities – in as much as the other communities are not allowed into it’s legal domain.

I spotted this before the referendum and wrote to the government department responsible to get confirmation – does it surprise you that I am still waiting for a reply?

This introduces some interesting problems. First – Article 50 is related to the other treaties – not the EURATOM treaty. In fact the EURATOM treaty has no exit paragraph – the intention was once you were in you were in. Why? Well that will become obvious as we go on. Instead we will probably need to rely on the Vienna Convention on the Law of Treaties, and that will possibly result in resorting to the Article 33 of the UN charter:

Article 33
1. The parties to any dispute, the continuance of which is likely to endanger the maintenance of international peace and security, shall, first of all, seek a solution by negotiation, enquiry, mediation, conciliation, arbitration, judicial settlement, resort to regional agencies or arrangements, or other peaceful means of their own choice.
2. The Security Council shall, when it deems necessary, call upon the parties to settle their dispute by such means.

In other words the Russians could have an input to our Brexit deal!

So what is EURATOM about. Well, first and foremost (in my view) it is about non-proliferation – stopping people diverting nuclear material into a weapons programme. Inspectors visit nuclear establishments over Europe and set up monitoring, check records and make sure all the stuff is where it should be. If we leave this we will then need to make sure we switch to the Vienna safeguards system (technically we are part of it, so it should be easy).

A key aspect of the EURATOM community is set out in Article 86

Special fissionable materials shall be the property of the Community.

What does that mean – well it means all of the nuclear material in the UK is owned by the community we have decided to leave. You know those waste stores you have seen in the Sellafield documentaries – well guess what – they are owned by the community and we will either need to hand the material back, or agree to it’s transfer to somebody in the UK. Not too hard, we will just need to make sure we know exactly how much there is there.

Unlike the other treaties though, because this is a non-proliferation treaty, there is a prohibition on external trade without a commission negotiated trade agreement. So when we leave the community they cannot sell us any nuclear goods unless the European Commission negotiates a specific trade agreement with us. I used to be involved in this – and I can tell you we deliberately added sections to force external countries follow the community rules, and that will continue to happen.

But what does that mean in practice – well remember that French designed reactor we have agreed to buy – sorry – when we leave Europe they will be unable to sell it to us unless the commission establishes a specific nuclear trade agreement. I wonder who will need to pay compensation if we do something that negates the contract?

The EURATOM community also sets out the nuclear safety rules that apply in the UK.

So is this what you thought we were leaving? This is just one taster of what the European Union means. You could look at air safety, road safety, maybe roaming agreements for mobile phones, maybe banking agreements (try sending money to Europe and you will see there are rules that reduce the costs).

We hear about free market and immigration – not forgetting sovereignty – but this is just a small part of what the European Union is about.

Thanks to Graham Smith for pushing me into writing this one. So we will have Brexit. It’s easy – we just repeal the European Communities Act and it’s done. Well, maybe it isn’t that easy. A couple of examples to work through.

I looked at recent legislation created in the UK, and I picked 2016 No. 932 as a random example. In case you didn’t know this is The Air Navigation (Restriction of Flying) (Wales Rally GB) Regulations 2016. These are regulations preventing low level flying over the Welsh Rally. Obviously nothing to do with Europe – so a good example of something that should be unaffected by Brexit. If you look at the start of the Regulations you will see it says:

The Secretary of State makes the following Regulations in exercise of the powers conferred by article 239 of the Air Navigation Order 2016

This is the power that allows the minister to create the legislation. So now we go back to The Air Navigation Order 2016 (2016 No. 765) which says at the start:

This Order is made in exercise of the powers conferred by sections 60 (other than sub-section (3)(r)), 61, 77 and 101 of, and Schedule 13 to, the Civil Aviation Act 1982(1), section 35 of the Airports Act 1986(2) and section 2(2) of, and paragraph 1A of Schedule 2 to, the European Communities Act 1972(3).

This Order makes provision for a purpose mentioned in section 2(2) of the European Communities Act 1972 and it appears to Her Majesty that it is expedient for certain references to provisions of EU instruments to be construed as references to those provisions as amended from time to time.

So the obvious question is, if you repeal the European Communities Act does this pull down the Air Navigation Order and does this pull down the restriction on flying over the Welsh Rally? The answer is it depends – if article 239 of the Air Navigation Order depends on the European Communities Act then there might be a problem. So in order to work this out we need somebody to go through the 244 pages to work out what parts of the ANO are supported by the European Communities Act.

In my view the low level flying will still be banned, and I think a sensible drafter could draft the repeal act to leave in power any subsidiary legislation. But hang on – that means all of this EU legislation we are trying to get rid of will stay in place unless we name it one by one.

One of the problems we have had with recent legislation is the one in two out idea – so for every new piece of legislation you need to get rid of two old ones. As a result the drafters of legislation have put three or four completely different ideas into one new piece of legislation, creating a spider web of interconnected legislation. The number of pieces of legislation should have reduced – but the result is much harder to deconstruct (and actually the number of pieces of legislation have not really reduced in my view).

So to repeal the European Community Act and the “nasty” European rules we will need to review tens of thousand documents to decide what to keep and what to get rid of. Sure we could do the second part later – a sort of long grass Brexit – but that means we will need to follow updates made in Europe with no input to those changes – the worst of both worlds.

The second example is shown in the second para from the Air Navigation Order. The automatic updating of legislation “from time to time” is a really powerful tool and it is in the European Communities Act. Some international safety legislation is reviewed regularly and updated, perhaps as often as every two years. Making new legislation to refer to the new updates can take over a year. So the European Communities Act introduced the power to make perambulator  references (automatic updates). There are reasons why this only exists for European legislation – it has to do with the power of parliament. And no replacement Act is likely to include this automatic update.

What this means for items that have already been updated will be a long legal discussion – probably years. The other thing it means is that legislation will need to be ready to manually update these references starting the day after the European Communities Act is revoked. Remember – preparing this legislation can take more than a year. But we have about two years to complete Brexit, so we should have time.

In the UK we have this concept that parliament – the representatives of the people – are the ultimate authority. Nobody can introduce legislation or tax without their approval. For parliament to review the number of pieces of legislation that will need to be amended to leave Europe within such a short period is beyond imagination. So what will we do?

The suggestion I have heard is that parliament will be asked to delegate the power to amend legislation to the government. Some people think government and parliament are the same thing – but far from it. Government is the Prime Minister and the cabinet. It isn’t the back benchers, it isn’t the opposition, it isn’t the Lords. This is something that must never be allowed to happen.

Look out for my next post “What is the European Union”.

You hear the news – no informal negotiations before Article 50 is triggered. Wonder why? Well this is just like a game of poker with bluffs and double bluffs. The EU is sitting across the table from us and trying to goad us into making a big bet, because they know they have a better hand. They want us to make that Article 50 declaration – to make a big bet before we have any idea what the chances are of us drawing a good hand.

We think that, at the moment, the EU have a much stronger hand. It’s really important for us to stay pat until we know what the flop looks like. You see if we trigger Article 50 and even one of the other 27 States disagrees with any part of our exit deal then on the second anniversary of the notification we lose everything. We get no access to the single market, we have no freedom of movement, the Brits in Europe will need to come home within three months. On the other hand – our legislation will still allow the EU access to our market, and freedom of EU citizens to work here. We get the worst of both worlds.

So for now we need to have patience and wait for the flop – to get those informal negotiations going to see what the outcome is likely to be. If we cave in and trigger Article 50 before the informal discussions then we put ourselves at a big disadvantage and could well lose our shirts.