Spoiled Rotten

The confusion and mismanagement of Britain’s impending EU exit are by-products of an empire that still hasn’t come to terms with its own decline. What are the legal implications of the chaos?

August 10. 2016

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Spoiled Rotten

The confusion and mismanagement of Britain’s impending EU exit are by-products of an empire that still hasn’t come to terms with its own decline. What are the legal implications of the chaos?

So a minority of people in Britain have voted to leave something bigger than themselves? Sounds about right if you understand the standard collective British attitude towards… well anything really. This isn’t a cheap jibe: unpacking the historical and legal irony of Brexit, and the character of the British Empire’s decayed remains, truly brings to light the worrying extent of Britain’s egotistical diplomacy, and might help make sense of its consequences.

Think back to a time where Britain humbled itself or, to put it another way, did something positive for the wider world.  Not an individual Brit, the country.  No, not colonialism.  Nope, not getting involved in a war. It was when it joined the European Union, and even that was not undertaken with altruistic intent. In keeping with tradition the decision wasn’t for the benefit of the wider European community, it was because Britain was economically weak at the time – a factor that will likely repeat itself. It also shouldn’t be forgotten that Britain’s first application to join the EU (formerly known as the EEC) was rejected due to concerns regarding the Government’s commitment to European integration.  Needless to say those concerns were entirely legitimate. Since the UK joined the EU it has also been a bit like the overbearing acquaintance that always says no to everything at a friendly gathering.

Back to thinking positive contributions: Britain helped create the European Convention on Human Rights (ECHR). Yet to Britain in 2016, this treaty has become an additional European ‘problem’.  Don’t worry though, there is no need to fret, under the country’s new fearless leader it will also soon be no more than a memory of a concept that nationalism buried. Unfortunately, Britain believes it is greater than such ideals, and the Brexit vote is a piece of evidence to support such an assertion. The fallout from the referendum can only be described as chaotic: what the future will hold for Britain remains to be seen, and at present it doesn’t look like any certainty is fast approaching. What is certain however is what the vote and result represents: arrogance. This is not a quality shared by the individual voters themselves (well, not most of them).  The characteristic is one that belongs to the nation as a whole.

Britain has no written constitution. There are therefore no safeguards on processes such as a referendum

Here’s the fun bit: law. You know things are bad when you are relying on lawyers as the last hope.  In October this year it is likely that the UK’s High Court will hear a legal challenge on Brexit, assuming the British public doesn’t actually realize before then what is happening and decides to burn everything.  The case in question has arisen from those demanding the invocation of Article 50 of the Lisbon Treaty – the mechanism that concerns the process of a country withdrawing from the EU – be put to a vote in Parliament.  The current government holds the view that the backing of parliament is not necessary, because democracy is apparently the tyranny of the mere ‘majority’ (in this case 37% of the people in Britain who were actually permitted to vote). But what’s the importance of democratic process versus political gain?

The judges presiding over this case will not be helped by the fact that the EU Referendum Act (2015) speaks nothing towards its legal effect. The latent flexibility of Brexit legislation essentially allows for the government to pull what in reality was a poll result in whichever way they choose, currently towards further hardship for the average Brit – and of course the millions of non-Britons who can hopefully find greener pastures. The existence of this domestic law predicament is largely owed to the absence of a constitution in Britain.  That’s right, Britain has no written constitution. There are therefore no safeguards on processes such as a referendum.  This is how two countries (Scotland and Northern Ireland) in a four-country union can have their wishes ignored.  Elaborating on this, when taking the EU referendum vote in different common law contexts, for example in the United States, the same type of referendum would require a two-thirds majority in order to pass; or in Australia, all six states would need to vote in favor, in addition to surpassing an overall majority.

Picture individuals collectively buying a large crate of beer, which is then shared and enjoyed by everyone, as opposed to the same people buying individual cans

This is a helpful but unlikely hypothetical because despite their many respective problems, neither country’s government would be stupid enough to throw a referendum on such an important issue in the name of short term political gain; although there is hope for America by way of the Donald.  If there is a silver lining to Brexit in Britain it is that many more people are starting to realize that not having a constitution is a bad thing.  Yet ask a member of the stereotypical British clique encompassing out-of-touch privileged toffs and they will have no problem telling you that Britain has the best legal system in the world, and the best lawyers.  Having such stalwart faith in the absence of a standard central pillar to any developed legal system is precisely the type of British self-importance that has stifled progress within the country.

Moving on from that key domestic law issue, we then have to look at regional legal issues.  Firstly, the trending talking point, the EU single market.  The single market is the free movement of goods and services, which allows countries within the geographical area of the EU to trade freely with one another without burdensome restrictions and tariffs, whilst also enabling individuals from EU Member States to travel without restriction and take up employment in any EU Member State.  Some of the many benefits of being part of the single market include stimulating trade, economic empowerment, improving the quality of goods traded, cutting unemployment rates and cheaper pricing of products.  To benefit from such positive outcomes countries must financially contribute to the EU.  Picture individuals collectively buying a large crate of beer, which is then shared and enjoyed by everyone, as opposed to the same people buying their own beer separately, spending more money than they would have if they had contributed to the collection, obtaining less beer individually from such a purchase, and then likely consuming their regretful beers alone.  Britain’s publicised financial contributions to the EU are only estimations, not exact figures.  Therefore, you may as well make a rate up, because everyone else in Britain is currently doing the same.  Basically it costs the UK 10 Pikachus to have access to the benefits that are summarized above, which are by no means exhaustive. However, what most individuals seem to be unaware of is that in addition to that access the return for such a price is on average 100 Pikachus.

UK courts get decisions wrong, more frequently than people might think, especially in cases with greater international components

Another component of the EU Brexit debate that has become incredibly fanciful is sovereignty.  The concept of sovereignty is incredibly intricate, despite the cavalier approach to it taken by British politicians – resulting in numerous inaccuracies.  David Cameron certainly struggled with sovereignty-based questions when attempting to spearhead the remain campaign; he seemed to think it is related to car manufacturing.   Yet it is a legitimate concern to wonder why, for example, the European Court of Justice (ECJ) can overrule the UK’s Supreme Court (UKSC).  However, the ECJ can only supersede the UKSC in cases that specifically involve matters of EU law.  The number of cases in UK courts not concerning EU law vastly outweighs those that do, where the UKSC would be the final authority.

Matters of human rights law work in much the same way, as the European Court of Human Rights can also supplant a UKSC ruling.  Being able to overturn a national court decision is incredibly important for many reasons.  The most notable cause in the British context is that UK courts get decisions wrong, more frequently than people might think, especially in cases with greater international components.  There have been many occasions where regional and international courts have righted wrongs of UK judicial decisions.  The promise of this safety net no longer existing should worry people.  This is also why the contention that the UK should no longer be a party to the ECHR is terrifying, because it will boil down to the same problems, but in a context where peoples’ human rights are at stake.  The sovereignty component of Brexiteers’ arguments is tied to misplaced feelings of a now non-existent empire, not to law and policy.

If the reaction to the Brexit vote by other EU Member States is anything to go by, the trade talks will be brutal

Don’t get too depressed though, there is an amusement factor to the regional legal outcomes of Britain leaving the EU: Schengen.  Schengen is an agreement that enables passport-free movement of persons across a large portion of Europe.  Here is where the Brexit setting hits a high point on the hilarity scale.  There are two countries that are constantly being dropped as some form of authority as to why Britain will be ‘just fine’ outside of the EU: Norway and Switzerland.  It is true neither of these countries are members of the EU, and yes, they are pretty great places.  One common factor of these lovely countries is that they are Schengen countries.  Now Britain is not a Schengen country, despite being a current member of the EU.  This was a term that was successfully negotiated with the EU back in the 90s.

However, if Britain leaves the EU and wants access to the single market, it is very likely that it will have to sign up to Schengen.  This condition is likely to be seriously pushed by the EU during Brexit negotiations.  As one ill-informed dope described Brexit, ‘it’s all about immigration’.  Britain colonized a large part of the world.  A fact that has caused, and will continue to cause, some of the big problems faced around the world.  The reality that ‘the immigration issue’ can successfully gain traction with voters in any circumstance is depressing. Just a side thought: if a non-Brit is living in Britain they are labelled an ‘immigrant’, but a Brit living abroad is an ‘expatriate’. This imbalanced rationale is tied to Britain’s grandiose view of itself and needs to be challenged more frequently.  Immigration should not be riddled with such negative connotations; it is a great thing.  What’s not going to be great is putting up with certain leave voters’ continued ignorant complaints regarding ‘more people coming into the country’ because of Schengen.  If you can be bothered retorting, explain why immigration should not be a political issue, and then let them know that they voted for it.

Last but not least, we move from regional to international law; trade deals and investment partnerships with the wider world.  Regarding trade, Britain will need to set up a new trade agreement with the EU.  If Britain ever decides to trigger Article 50 by formally informing the European Council that it will be leaving the EU, a two-year clock will start ticking to negotiate a new legal relationship with the EU.  There are numerous factors that these negotiations will have to take into consideration.  However, Britain will be without the power that it has always chased.  In this situation the EU holds the good cards, and if the reaction to the Brexit vote by other EU Member States is anything to go by the trade talks will be brutal.  It is difficult to predict what will happen.

Britain is walking towards the back of a long, long queue.

In a ‘best-case scenario’ Britain will never attain a trade deal anywhere near as good as its current one.  British-based exporters will likely become less price competitive than their counterparts operating within the EU, with the same applying to countries that have preferential trade relations with the EU.  Another potential outcome is British consumers paying higher prices for products imported from the EU. TTIP, the controversial trade agreement between the US and the EU, will no longer apply to a Brexit Britain.  This can either be good or bad depending on what aspects of society you favor.  Yet from a trade and investment standpoint, in addition to those involved in the business of arbitration and dispute settlement, if you are keen on TTIP and the idea of Brexit then you must be familiar with frequently contradicting yourself.  There are also a host of specific standards of the World Trade Organization (WTO) that will need to be unraveled by the British government.  It is true that Britain will be able to set up new trade deals – and here is where arrogance pops up again – but who is to say that other countries will want to trade with a shrunken little economy versus other, more outwardly welcoming countries, not to mention the largest trading bloc in the world?  To paraphrase President Obama, Britain is walking towards the back of a long, long queue.

As if this wasn’t bad enough, it will cost Britain billions of its ever-weaker currency to set up these new trade deals if they are to survive outside of the EU.  With respect to investment, the picture is just as bleak.  Experts in this area are split.  On the one hand, Britain not being part of the EU will mean it has the autonomy to negotiate international agreements relating to foreign direct investment.  On the other hand, it is doubtful outside of the EU that Britain will be able to create a system of regulation that is attractive to overseas investors.  These prospective dilemmas are just the tip of the iceberg.  Speaking of icebergs, Britain is currently scraping her bow off of one, although it will take her longer to sink than the Titanic.

There are many layers of truth as to why Britain is the spoiled tiresome child of the world’s nations.  Maybe it’s easy to feel like this because leading up to the vote the British public were being led in one of two possible directions by (publicly) bumbling fools, when in reality there were far more options to discuss and pursue.  There are nations fighting tooth and nail to benefit from becoming a member of the EU.  Yet Britain in its traditional fashion chose to toss this great advantage aside like a used tissue, much as the former Prime Minister recently got bored with his favorite toy (the British electorate).

This is what happens when you’re too familiar with getting everything you want

Britain had the best deal out of all EU Member States, a unique arrangement that is unlikely ever to be replicated.  However, this is beside the point.  The point is that the government played with this privilege in the first place.  The EU in/out determination should have never been allowed to be decided upon by a short-sighted referendum aimed at shoring up the Tories’ right wing voter base.  Sadly, it seems it was.  And it will not be British Members of Parliament or, the laughable suggestion, the EU that will most heavily feel the negative effects of Britain not being part of the EU; it will be the majority of people who were tricked by the wannabe history-makers into voting ‘Leave’.  The misinformation and outright lies plastered across Britain by the key Brexit swindlers who belong nowhere near politics have indoctrinated potentially good people through the rhetoric of fear, hate and isolation.  The individuals who are currently being hit the hardest because of such political game playing are those who have been subject to deplorable acts of racism.  The surge in racial abuse after the announcement of the result is the worst fallout of Brexit.

The Brexit vote and its aftermath encapsulate the two worst behaviors of the British nation: arrogance and ignorance.  Add them together and what do you get?   A hole that Britain will not be getting out of without help.  And the most probable form of help will come from countries that do not share these two traits.  When that happens it is likely that the offer of help will be accepted, but rapidly forgotten.  Indeed, the EU has assisted Britain time and again, especially in the country’s less than finest hours, which makes a Brexit Britain far more conceited than it seems at first glance.  That’s what happens when you’re too familiar with getting everything you want.  If Brexit becomes fully formalized, the spoiled, embarrassing child that is Britain is in for a rough ride.



The opinions expressed in this article are entirely the author’s own and do not reflect those of any entities to which he is affiliated.

Image: freestocks.org

August 10. 2016