If you are able to name the last four leaders of the United Kingdom Independence Party, then you really ought to get out more. And no, none of them was or is Nigel Farage, although of the ten leaders the party has had in the past ten years, he did fill the post three times. Ukip has been the most successful single-issue movement in England since the suffragettes, but it has been spectacularly prone to fallings-out and chuckings-out. At least seven of its former leaders are no longer members of the party.
It would be a pity, all the same, if the present leader, Gerard Batten, joined most of his predecessors in the ashcan of history. For Mr Batten deserves to be remembered, if only for the glorious letter he wrote to the queen at the end of January. Its immediate purpose was to ask Her Majesty to prorogue Parliament in order to prevent Remainers from frustrating Brexit. That might seem chutzpah enough, but his follow-up was more ineffable still: ‘Your Majesty’s Ministers were gravely in error and wrongly advised you [to sign the Maastricht Treaty in 1992].’ Why, because ‘to presume to convey rights on or to impose duties on Your Majesty was, and remains, unlawful and treasonous under the Bill of Rights and the Coronation oath.’
After forty-odd blameless years on the throne, the queen had, according to Batten, committed treason against herself – a self-inflicted lèse-majesté. In another age, the Tower of London would be dusting down Thomas More’s old cell for him. But it would be unfair to dismiss Batten as a know-nothing stirrer, though often his behaviour does seem to fit that description: calling Islam‘a death cult’, claiming that the EU was inspired by Hitler’s plans for Europe if he had won the war, and so on. For his underlying allegation, that the queen is forbidden by ancient laws from acknowledging any authority superior to or other than her own, is a commonplace among the most learned Brexiteers. In fact, they often go much further back than 1689.
Sir John Redwood, fellow of All Souls College, Oxford, and long-time Tory MP for Wokingham, has invoked the Act in Restraint of Appeals of 1533, quoting on his constituency blog (7 June 2012) its ringing claim that ‘by divers sundry old authentic histories and chronicles it is manifestly declared and expressed that this realm of England is an empire, and so hath been accepted in the world.’ Several of his respondents thought that Redwood was pussyfooting. He should have indicted Ted Heath for treason, and why didn’t he mention the Act of Supremacy of 1559, with its even more plonking assertion that ‘no foreign prince, person, prelate, state or potentate hath or ought to have any jurisdiction, power, superiority, pre-eminence or authority ecclesiastical or spiritual within this realm’?
Charles Moore, former editor of the Daily Telegraph and Margaret Thatcher’s official biographer, turned his fire on the archbishop of Canterbury: ‘I do feel that the archbishop, when looking at Brexit, should remember the Act in Restraint of Appeals. After all, if it had not been passed, his Church would not exist and he would not be living in Lambeth Palace and making speeches in the Lords’ (Spectator, 19 January). Boris Johnson, not one to be left behind in any hyperbole contest, told last year’s Tory Party Conference that ‘the authors of the Chequers proposal risk prosecution under the 14th-century statute of praemunire, which says that ‘no foreign court or government shall have jurisdiction in this country’ (Birmingham, 2 October 2018).
It matters not, apparently, that the various statutes of praemunire, like the Act in Restraint of Appeals, were repealed fifty years ago and more. The oomph had long gone out of them after the Catholic Emancipation Acts of Wellington and Peel, and Gladstone’s Ecclesiastical Titles Act of 1871, which allowed the pope to hire and fire his English bishops and give their dioceses English placenames. Richard II’s prime aim in the Great Praemunire Statute of 1392 was to prevent the pope and his favoured cardinals from taking juicy revenues out of England. British membership of the EU has, per contra, attracted billions of foreign capital to Britain, while leaving the EU is likely to accelerate an outflow that may dwarf the UK’s relatively modest net contribution to the EU budget. So going back to 1392 does not seem like a very sensible answer to our predicament.
And how strange it is at this late date to see the defunct Act in Restraint of Appeals held up for our admiration. Its passage, after all, was one of the scurvier episodes in parliamentary history. In those hectic ten days at the end of March 1533, Thomas Cranmer swore his weird double oath on being installed as archbishop of Canterbury: a) to be loyal to the pope, but b) not to allow anything in this first oath to oblige him to act against the king or make him ‘any the less free to speak or less able to advise and assent to anything which might further the reformation of the Christian religion’. As his successor, Reginald Pole, wisecracked a few weeks later, ‘other perjurers be wont to break their oath after they have sworn, you break it before.’ Two days later, Cranmer rammed through both houses of Convocation the declaration that Henry’s brother Arthur had ‘carnally known’ Catherine of Aragon and so Henry’s first marriage was unlawful and he was free to marry Anne Boleyn (which he had already done in secret). Within a week, the busy new archbishop had also rammed the Restraint of Appeals Bill through both Houses of Parliament, despite the worries of MPs that Continental merchants would retaliate by slapping high tariffs on English exports (so what else is new?). Thus the nation was set on tracks that would in due course lead to the execution of almost all concerned – Boleyn, More, Fisher, Cromwell and Cranmer himself – and in the longer run to the religious wars that were to convulse Europe for nearly two centuries, and later still to the breakaway of Ireland from the United Kingdom, which was followed by two civil wars, in the first and last quarters of the 20th century, both of them so ghastly that we have euphemised them as the Troubles.
So not exactly a glorious precedent. Yet increasingly, as the economic arguments for Brexit lose what cogency they ever had, the Brexiteers grope for justification in the mists of our island story. Cranmer had boosted the king’s self-confidence (not a quality in which he was much lacking) by putting together a ragbag of ‘evidence’ entitled Collectanea Satis Copiosa, to prove that it had always been the king, not the pope, who was supreme in the land. Much of the material was drawn from the fanciful romances of Geoffrey of Monmouth, whose ‘Arthurian fables’, to quote Diarmaid MacCulloch in his Life of Cranmer, ‘have met their nemesis in Walt Disney and Monty Python’. The king lapped it all up, and now so do the Jacob Rees-Moggs and Iain Duncan-Smiths, whose freedom to practise their Catholic faith is no thanks to Henry VIII. Today these harkings back are semi-playful, but under them lies an adamantine insistence that the white cliffs of the nation-state shall not be eroded by the splashings of modernity. Critics complain that the 11 defecting MPs have nothing in common except a distaste for Brexit. Yet they do share, I think, a certain ease with the world as it is.
Hostility to the European project in Britain was fierce and substantial from the start. Heath only got the European Communities Bill through with Labour votes. Although Harold Wilson brought off the 1975 referendum with remarkable dexterity, in no time the two-to-one margin for staying in was reversed. In the depths of Margaret Thatcher’s unpopularity in the early 1980s, opinion polls recorded 65 per cent of voters wanting to leave the EEC. Just as there has always been around a third of voters convinced of the beauties of the European project, there has always been an opposing third convinced that it is the work of the devil, and that third has fatally been concentrated within the Conservative Party. Except for Ted Heath himself, Conservative leaders have instinctively resorted to a protective mask of Euroscepticism. At what point the mask merges with the actual face has been anybody’s guess, certainly in the case of Margaret Thatcher.
Tory leader after Tory leader has pursued a baffled and fractious course, sometimes cursing the dissidents under their breath as ‘bastards’ (John Major) or openly denouncing them as fruitcakes and loonies (David Cameron, until they threatened to engulf his party), but more often singing to their tune, denouncing ‘Brussels’ as a bloated and corrupt bureaucracy, but one out of which he (or more often she) had managed to screw ‘a good deal for Britain’. For Mrs Thatcher, every European Council was a miniature 1940, which she batted for Britain, the modern embodiment of the David Low cartoon of the British Tommy on the White Cliffs, shouting defiance to the world – ‘Very well, alone.’
The locus classicus here is the opening of the Nissan plant in Sunderland, the turning point in the amazing and quite unexpected renaissance of the British car industry. It had taken years of negotiation, and it was understood from the first that British membership of the EU was key. Keith Joseph wrote to Thatcher in 1980: ‘The deal [is] tangible evidence of the benefits to the UK of membership of the European Community; Nissan [has] chosen the United Kingdom because it [gives] them access to the whole European market. If we were outside the community, it is very unlikely that Nissan would have given the United Kingdom serious consideration as a base for this substantial investment.’ When the great day came, six years later, there was not a word of this argument in Mrs Thatcher’s opening speech. The word ‘Europe’ occurs only twice, once in her boast that Nissan’s decision confirmed ‘that within the whole of Europe, the United Kingdom was the most attractive country – politically and economically – for large-scale investment’; and again in her declaration that ‘Nissan will be a major exporter of cars into Europe.’ So Britain is better than ‘Europe’ and is going to sell lots of cars ‘into Europe’ – a continent of which it doesn’t exactly seem to be a part. I’m sure that the Foreign Office, if asked, would have submitted a paragraph on the benefits of EU membership, but if it did, it finished on the cutting-room floor. You see here a deliberate use of language to present the UK as a fully independent mover, not a partner, let alone a friend (see David Conn’s brilliant article in the Guardian, 4 February for a fuller treatment).
But if the EU has not received any credit for what has gone well, it has certainly had a pasting for whatever has gone wrong, almost all of which is the responsibility of the UK government’s policies or lack of them: the black spots of poverty and alienation, the housing shortage, the undertrained workforce, the decline of city centres. Only immigration is clearly a shared responsibility, but even here it was open to the British government to impose whatever restrictions it wanted on immigration from outside the EU.
Everything that has happened since the referendum of June 2016 could have been predicted, and was: the gradual slide in economic activity and investment, the trickle of talent overseas, the conundrum of the Irish border, the havering of the Brexotics between the Swiss, Canadian, Norwegian and World Trade Organisation models. Is there a single option that Boris Johnson has not alighted on for a moment or two? To talk of a butterfly mind is an insult to lepidoptera. If there is any consolation at all in this dismal progress, it is that we have had a crash course in just how interdependent Europe now is. Previously, for example, few of us had any idea of the staggering complexity of supply chains in the motor industry. Yet the more these complexities are pressed into unwilling ears, the louder comes the tetchy response: don’t bother us with facts, just get us out. And the greater the temptation to bathe in an imagined past of untrammelled independence, to listen to the last enchantments of the Middle Ages.
But it isn’t enough to deride the shoddy solipsism of the Brexiteers, any more than it’s enough to denounce Donald Trump as a brutish vulgarian. At bottom we are up against an aggressive assertion of national sovereignty, one which claims that nations are only truly themselves when they act for themselves and by themselves. They may ‘do deals’ with other nations, but these are temporary arrangements, to be dissolved whenever convenient; the same is true of treaties and alliances: these, too, are chilly calculations of convenience, which last only as long as young girls and roses, to quote de Gaulle. National interest comes first, last and always.
We need, I think, to unpick the sovereignty argument a little, to get at the foundations of the overarching assertion about national interest. Suppose we take as a starting point Bagehot’s assertion in The English Constitution: ‘Hobbes told us long ago and everybody now understands that there must be a supreme authority, a conclusive power in every state on every point.’ Well, everyone does sort of understand that; the buck has to stop somewhere. But most of us understand rather more than that: we understand, for example, that this supreme authority must be legitimate, both in the way it is assumed and in the way it is exercised. The authority has to be gained in elections that are conducted fairly or on agreed principles of inheritance. Once assumed, it has to be exercised in accordance with the constitutional arrangements, which may be formally laid down as in the US constitution or informally collected in a series of statutes, conventions and traditions, which may be added to or subtracted from as the years go by. Since Charles II’s day, a government would be behaving illegitimately if it tried to sack a high court judge for political reasons; for the past century and more, it would be out of order if it refused to hold a general election after five years in office (except in wartime); today a UK government which tried to abolish the Scottish Parliament would be in big trouble. Ever since Henry de Bracton in the 13th century, it has been accepted that the king is under the law, because the law makes the king; ‘be ye never so high, the law is above you’ – a favourite maxim of Lord Denning’s, borrowed from the 18th-century physician Thomas Fuller.
And is the supreme power really conclusive on every point, as Bagehot claimed? Certainly not in the US – Bagehot thought the separation of powers a weakness in the American constitution. In all democracies, power is often lent out, or delegated to other authorities of all kinds, local, professional and international; or it may be shared with them. What the supreme authority does possess is ultimacy. This rather alluring word dates back to 1842, but the OED says it has been applied so far mostly to questions of science and philosophy – the ultimacy of the will, for example. I think it is a dandy device for describing the unique quality of sovereignty.
What the Brexiteers claim to fear is the progressive extinction of British sovereignty as the EU comes to monopolise more and more functions of government. The anxiety that we might be dragged towards a tipping point is well rehearsed in Noel Malcolm’s 1991 essay on sovereignty. The reality is, though, that any such tipping point is a long way off as long as 99 per cent of UK public expenditure is determined by the UK government and not by the EU. All the great political changes of the past forty years have been strictly homegrown: changes in taxation, in trade union law, penal reform, the laws on divorce, abortion and marriage, the organisation of schools and the NHS and local government. The EU had no finger in any of those pies. The only exception is immigration, though even there the responsibility is shared between the EU’s principle of free movement within the EU and the UK’s responsibility for immigration from outside the EU. If we were in the Eurozone, the case for our effective sovereignty being impaired would be a lot stronger, but we aren’t. Take back control? We never lost it. Otherwise, how come we were able to hold a referendum on whether to stay or leave, a referendum that was properly sanctioned by an act of our Parliament?
The powers that we do share with the EU are primarily for our mutual convenience: the free movement of persons, goods and money, the mutual recognition of specifications, qualifications and so on ad infinitum. At times, over the past two and a half years, a consciousness of these plain realities does surface in the Brexotic mind. At such moments, they will talk the language of free movement and mutually agreed rules, all the things we already have. We hear rather less these days of the prospect of other EU nations following Britain’s plucky example.
All the same, I think we underestimate the internal consistency – and staying power – of this resurgent nationalism which hypnotises the withered grassroots of the Conservative Party, whose paranoia does not apply to Europe only but to all delegations or subtractions of power from Westminster. Devolution of any sort is repugnant to them. So are human rights, whether judged by foreign courts or British ones. They believe that the fist of power should remain tightly clenched. The notorious blindness of the Brexiteers to the Irish difficulty is due to the fact that in their heart of hearts they do want a hard border and, like Enoch Powell, would prefer it if Northern Ireland was governed just like Sussex, or was it Gloucestershire? Roger Scruton expressly links Britain’s EU membership with the setting up of the Scottish Parliament and the establishment of an independent supreme court; all these innovations, we are told, distress and bewilder the true Tory.
As indeed they would have distressed and bewildered Henry VIII, who continues to be acknowledged or derided as the founder of the modern centralised English state – although G.R. Elton traced that centralisation back a good deal further. It is piquant that Bluff King Hal’s name still crops up today in the shape of the ‘Henry VIII clause’, the nickname for a device which gives a minister carte blanche when introducing a new law. The phrase was much bandied about during the passage of the European Union (Withdrawal) Act, where the government appeared to be seizing wide-ranging powers of the sort originally claimed by Henry VIII in his Statute of Proclamations of 1539, which basically asserted that ‘the law is what I say it is.’ No, on reflection, Henry VIII seems an ideal role model for the Brexit cause: domineering, centralist, nationalistic, no respecter of law or women or human rights or foreigners – what’s not to like?
Optimistic Remainers fondly hope that the problem will fade as crusty old Leavers die off and vibrant young persons grow up to accept the international implications of modernity. This, I fear, is an illusion, though a tempting one. Nationalism is too deeply entrenched in our culture. Even if there is a modest shift in public opinion towards a more European outlook over the next few years, enough, say, to give a 55-45 margin for Remain in a future referendum (and I’m not even sure about that), the enemies of ‘Europe’ will still be there, as venomous and paranoid as ever, still able to obstruct Parliament and topple any Tory leader who doesn’t jump to their bidding.
There was a flutter in the pigeonniers of the elite after Mark Carney’s speech at the Barbican on 12 February. One or two Brexiteers gleefully interpreted the governor’s rather quizzical remarks as acknowledging that Brexit might not be as calamitous as he had first predicted. But that wasn’t what he was saying. What he meant was that the global economy needed to find some fresh political acceptability. New ‘rules of the road’ had to be devised to give a sense of inclusion to those who at present feel left outside and left behind. Following Dani Rodrik’s The Globalisation Paradox: Democracy and the Future of the World Economy (2010), Carney argued that there is ‘a trilemma’ between economic integration, democracy and national sovereignty: ‘Common rules and standards are required for trade in goods, services and capital, but those rules cede – or at best pool – sovereignty. To maintain legitimacy, the process of agreeing those standards needs to be rooted in democratic accountability.’
This is not a new insight. For years, critics have pointed out the ‘democratic deficit’ of the EU. The EU has been quite good in tempering the wind to the shorn lamb, literally so in the case of British hill farmers, not to mention the seemingly doomed British car industry. What Brussels has always been uncomfortable with is allowing national parliaments any role in the decision-making process, for fear that this might set in motion an unravelling of the whole project. The Treaty of Lisbon (2009) offered some modest adjustment, in the shape of the ‘yellow card’ procedure, which allows national parliaments to object to a draft European law, but only on the grounds of subsidiarity, i.e. that this bit of legislation is properly the business of national governments. Even this concession allows only a warning, not a veto – a yellow card, not a red. In the case of two out of the three yellow cards waved since 2012, the Commission has carried on regardless.
Instead, voters are offered the European Parliament as a substitute. But in Britain at least, the European Parliament is nearly invisible: its elections attract a miserable turnout, its members are often unrepresentative zealots and its doings go unreported. It’s not difficult to think of plausible reforms. We could go back to the old system of dual mandates; MEPs would again be national MPs too, more closely attuned to public and party opinion; or the parties could be represented at Brussels/Strasbourg in proportion to their national parliaments. Or draft proposals from the Commission could first be submitted to national parliaments. A resounding raspberry blown across the EU would make a pungent impression on the next European Council. Or the Commission could set up citizens’ assemblies across the EU to explore local preferences on upcoming issues. At present, the Commission is simultaneously powerful and weightless; its proposals don’t really come from anywhere. There are plenty of other possibilities. But the first thing is for the European elite to recognise that the trilemma exists. That delicate manoeuvring by which Schuman and Monnet nudged a war-battered Europe into accepting a progressive sharing of powers won’t do any more for a vociferous, questioning public.
You can dismiss as medieval flummery the harkings back to the Act in Restraint of Appeals and the Statutes of Praemunire, but the Great Trilemma is real and pressing. Of course, we shall continue to find that, for mutual convenience, certain political decisions have to be taken at supranational level, but how are those decisions to be anchored in our national democratic systems? If there is to be any point in delaying Article 50, it is to begin rethinking the constitutional structure. We can’t just go back to 1971 as if nothing had happened in between. Whether, after all the agony, we finish up remaining inside, or totally out of, or rather adjacent to, the EU, we shall still need a political imagination which has been sadly lacking these past two and a half years, if we are to find a permanent resting place. Where are today’s Cranmers and Cromwells to devise for us an ingenious new Act in Furtherance of Appeals?
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