Brexit and the Irish Border

In a recent Irish Times piece Chris Bickerton from Cambridge University and my colleague at LSE law Peter Ramsay argue that Ireland and the UK need to face ‘up to their sovereign responsibilities’ and ‘drop the [Northern Irish] backstop and work together to introduce a minimal land border, and to achieve a future UK-EU that preserves the close links between the two countries.’  The argument might have been stronger had Brexit been the result of a process of consultation both within the UK and with its friends beyond its borders.  But of course it was not. Foisted on Ireland in the name of a country determined ‘to take back control’ why should Ireland now forgo control of its own future to assist the UK in the horrific quandary its dash for ‘freedom’ has made for itself?

Taking back control works both ways. The backstop is not the result of some kind of elite manipulation by nefarious EU and Irish forces.  The British agreed it before Christmas last year because those in charge of their withdrawal discussions with the EU (negotiations is too grand a word) know how weak their position is, whatever purists – political and academic – might be saying about sovereignty or anything else on the sidelines of reality.  The EU timetable for the talks, the money owed and so on were all conceded without a fight for the same reason. And it will get worse: the so-called Chequers agreement (a government agreeing with itself!) has already fallen apart.

Ireland’s sovereignty is immeasurably strengthened by its ties with Europe. It would be catastrophically weakened by returning to be the poodle of the British. Ramsay and Bickerton acknowledge the possibility of deep economic damage in Ireland and (though they are sceptical) a renewal of political violence in a way that suggests that these might be the reasons Ireland should now cave in.   True there are some nice noises in the piece about the authors’ desire for a United Ireland, reminding me of those English left-wingers from the 1980s who were always disappointed to find I did not support the IRA. Imperialism has never been the exclusive preserve of the Right.

Asking the Advice of Chris Heaton-Harris MP

Dear Mr Heaton-Harris

I have written to you before seeking help from you with regard to my forthcoming lecture on Brexit and Human Rights – but I have not received a reply. The thing is that the lecture is very soon – at LSE next week and I still haven’t got much clue about the benefits of Brexit! Now I know you are dead keen on scrutinising what we academics say about Brexit for bias and so on which is why I really need your help. I’ll do my best to find good things about Brexit – I have found one possible and one potentially.  But I need more.

You are doing a book I know and are a kind of scholar I am guessing.  Let me tell you about a well-known feature of free speech.  It is called the ‘chill factor’ – someone in a position of authority (like you, a member of the government say) writes to the bosses of a bunch of people (vice-chancellors for example) asking for details about what those people are doing (say giving lectures) when everyone knows (but no one says) what is really going on is deliberately raising a doubt in the minds of these junior people whether they should do or say or write the thing of which they know the powerful person disapproves (that Brexit is a stupid self-destructive act of national suicide for example) in case they get moved against by the bosses. McCarthyism started this way – people thought the junior senator from Wisconsin was a second rate nobody but he went on to wreck people’s lives. Check out Campus Watch in the US for another example.  I doubt you could possibly have intended this kind of thing, but it risks being an effect.  I genuinely want your input so that if anyone moves against me for bias I can say you were invited to engage – better still come to the lecture!  I’ll give you an immediate right of reply.

Professor Gearty

 

Vietnam – and Brexit: Avoiding disaster

I am nearly finished watching Ken Burns’s epic documentary series  on Vietnam.  David Thomson, writing in the London Review of Books , is surely right to talk of it in terms of being (one of?) the finest documentaries ever made.

So what is the connection with Brexit?  Am I being an obsessive?

Well of course the casualties from Vietnam were direct and the horror immediate. The deaths and destroyed lives from Brexit will take longer and envelop people with no drama. But that’s not the point I want to make now.

A late episode in the series details the impact of the leaking of the Pentagon Papers. I’d forgotten quite what they signified. Commissioned by an at-this point departed Secretary of State (Robert McNamara), they were designed to get into writing the lessons of the disaster that was Vietnam. The Nixon administration tried hard to stop the New York Times running them, even fighting (and losing) a case all the way to the Supreme Court. They showed successive administrations knew that Vietnam was a disaster and consistently lied to the public while things went from bad to worse.

Remind you of anything? Exactly: those 58 studies of the impact of Brexit that David Davis refuses to publish.  These are Brexit’s Pentagon Papers. They must come out.

Asking the advice of Chris Heaton-Harris MP

Dear Chris,

I hope you don’t mind my writing. I would appreciate your advice please. I am giving a public lecture on Brexit and human rights at LSE in mid November – gosh, sorry no power point to send you! – and obviously I want to include all the good things about Brexit’s impact on human rights. Trouble is I can’t think of any! Can you help me achieve government-approved balance? Now maybe it is simply that Brexit permits the destruction of human rights and that is thought by you and others to be a good thing. If so let me know and I’ll include it! But if there are things that work for human rights do let me know them. Need to avoid the thought police, eh?!

Very sincerely yours

Professor Conor Gearty FBA, MRIA, Bencher Middle Temple, Irish and European citizen.

The Society of Legal Scholars in Dublin

Well it was a special thing to give the After-Dinner talk at the Society of Legal Scholars  Conference in Dublin last night.  Here is the hall being set up and full as it was last night it is a glorious space. The conference itself is being held at UCD where I was a student many years ago and this is the first occasion the Society has ever held its annual event outside the UK. All very moving for me.

Inevitably I talked about Brexit and argued that in Ireland there is a special obligation to assist the UK at this hour of terrible need. (As those of you reading this who know my work will know I am an ‘extreme remainer’!)  Ireland’s common law traditions and its long close association with Britain (or do I mean quasi-colonial domination?) will post Brexit make it a powerful bridgehead between a declining Britain outside Europe and the rest of the EU.  To be effective, it is vital that somehow or other Irish-British relations survive the horrible years of rupture that inevitably lie ahead, so that when common sense returns the Irish are ready to assist.

Is this unduly provocative? Or patronising?  I don’t think so. In the speech I identified six arguments for BREXIT, and found none of them persuasive.  The first three are more or less the same: Brexit proponents frequently explain themselves by attacking the EU (either (i) ‘it is corrupt, venal, hopeless’ or (ii) ‘it is about to fall apart’) or (iii) attacking the people in favour of remain (‘liberal elites’; ‘experts’ etc) as out-of-touch with the people.  None of these positions is an argument. They are just ways of changing the subject since all might be true but the question of whether the EU is so important that the costs – if they really exist – need to be accepted is as a result of this shift invariably dodged. The fourth (‘taking back control’) has been laid to rest by the Government itself whose key white paper has admitted that parliamentary sovereignty was in truth never subverted by the EU but that ‘it just felt like that’. The fifth – the people have spoken – is another procedural trick to avoid any discussion of substance; deployed by the other side it would render all argument after the 1975 referendum illegitimate, an idea that would have been rightly rejected by all those pushing for the more recent referendum.  Democracy is by definition about fluid decision-making. The sixth argument is the strongest – we need to disrupt everything to make progress. Brexit throws all the cards on the table, the game of Britain begins afresh – all will be fine even if there are short term hiccups.  Maybe.  But how things will be fine and what fine will mean are never defined.  This is some risk to take with a people no longer able to rely on colonial territories for the easy accumulation of wealth.

Sinn Fein means ‘Ourselves Alone or ‘We Ourselves’ in English.  How will the UK enjoy being the new Sinn Feiners?  Not very much I confidently predict.  That’s when the old Sinn Feiners (of all contemporary political persuasions), now confidently cosmopolitan, will be needed to help rescue a country drifting aimlessly ever further out into the north sea.

On Fantasy Island

My book On Fantasy Island. Britain, Strasbourg and Human Rights will be published by Oxford University Press in July, with the proper launch being in September. I did a lecture a while back with this title – a summary of which you can read here . The book explores the various myths, illusions and occasional downright deceptions that have marked the attitude of our two main political parties, but especially the Conservatives, to the Human Rights Act since it was enacted in 1998. After going through these fantasies I outline the facts behind the Act and then end with some thoughts about the future.  About 80,000 words – an antidote, I am hoping, to the infections of noisy nonsense that the Act has attracted. The test of the value of a law lies in the sort of enemies it attracts.  On this basis alone the Human Rights Act would be worth defending!

Watch out for my new web site devoted specifically to the book, coming soon.  I’ll be including long extracts from it there, and comments on the latest speeches on rights as and when they emerge – like Theresa May’s yesterday, on which as well more later (very soon in fact).

The Rule Of Law In Europe: Friend Or Foe Of Democracy?

Abstract:

The reaction to 11 September damaged the liberty of those living in Europe who found themselves targeted as suspect terrorists while seeming to do little to ensure the security of the wider community. More recently a second emergency, rooted this time in the financial and economic collapse of 2008 onwards, has caused a further unraveling of Europe’s constitutional project, even threatening the gains of past generations of European idealists. In today’s Europe universal liberty and security have no meaning for many even if their shape is retained in structures that in truth mock rather than deliver democracy and human rights. This talk traces the origins of the crises that have afflicted so directly the breadth of liberty and human security in the Union, demonstrating their roots in ‘viruses’ that have been present from the start of the European movement but which have now spiralled out of control. The lecture ends by asking what can be done to prevent the full decline of the region into a state of neo-democratic/post- democratic unfreedom, one in which capital unbound from democracy thrives at the expense of the people.

The state of freedom in Europe

What resources does Europe in general and the European Union in particular have to resist a world  in which as one scholar has put it ‘core democratic institutions, such as parliaments or recurring elections, stay formally in place while the substance of political decision making is no longer determined by active citizens and their representatives’? And we should add while the law comes and goes as neo-liberal exigencies demand, and human rights rhetoric grows ever louder as its real impact on the ground diminishes ever further?  Pushing the point even more, is it right that as the sociologist Wolfgang Streeck has said, ‘one cannot but be afraid of the possibility of a new, however temporary, settlement of social conflict in advanced capitalism, this time entirely in favour of the propertied classes now firmly entrenched in their politically unconquerable institutional stronghold, the international finance industry’?

This crisis in Europe has not come from nowhere: it is a creature of three fundamental weaknesses that have dogged the Community since its modest inception in the 1950s.  First there is the never-resolved question of national identity.  The European project has been strong enough to make progress towards the idea of a Union but never strong enough to make it matter on the ground.  Where once nation states pirouetted around their sovereignty while conceding enough to facilitate European progress, now increasingly states build walls – metaphorical and real – to defend their national interests, displaying chauvinism as a matter of pride rather than of reluctant electoral necessity.

Second there has been the unresolved question, raised when the issue of a European Constitution was mooted but left to one side at that time, of whether the European space is a Christian one or at least a culturally Christian one (whatever about belief in the risen Christ).  The antagonism to Moslem peoples that we see across Europe today reflects a deep-rooted sense of their being different, one that has been greatly exacerbated by the attacks of 11 September and the politically-inspired atrocities that followed within Europe in (for example) Madrid, London, Burgas in Bulgaria and Paris. Europe may not have re-embraced its Christianity but it has increasingly developed a tendency to articulate values rooted in the past and which reflect the post-Christian secularism of the moment in a way that for all its invocations of universalism is just as divisive (and marginally less honest) than the religious partisanship of the past.

Thirdly there is the Union’s long attachment to the moral force of the market, benign enough when it was a merely an aspirant Common Market seeking to make war impossible in a region that had been a killing zone for generations,  but deadly now when the neo-liberal virus of market power has not only destroyed the economies of many European states but then insisted on further destruction as a remedy for the damage it has already done: like asking a poisoner how to solve a problem which has been caused by his own application of strychnine; naturally he will suggest more poison.  It is the neo-liberal contagion wreaking havoc outside Europe that together with big-power-induced instability that has sent desperate people towards Europe in what looks like it might be millions.

Can Europe cope? The refugee crisis that burst fully in 2015 and just alluded to may indeed be the final straw for the Union, the point at which the three viruses of national selfishness, racist intolerance and the decay of life-chances produced by neo-liberalism the world over come together in a perfect and destructive storm.  There is pushback in the courts from time to time, both at Luxembourg and in the European Court of Human Rights in Strasbourg. The European Parliament may be relied upon to raise the issues of democratic engagement that are missed elsewhere, indeed can sometimes manage the occasional bite despite the leash on its powers severely curtailing its movement.  Social movements influence public debate as well, though less than such aspirant social movers would like. The fact that for many the best way of moving forward is to rely on the democratic energy of ‘the people’ may be evidence of despair or determined optimism, or indeed both. We must hope that the high point of the fever is upon us and the patient is about to begin recovery. Optimism of the will is vital exactly when the intellect sees no escape from pessimism.