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Brexit: What and Why?

di e - 12 Gennaio 2018
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The desirability and pursuit of free trade flows from the legal tradition of allowing individuals to pursue their own interests. It contrasts with the long mercantilist tradition in Europe with its focus on the centrality of the state and its view of what was best for the country. That latter system also leaves the state more exposed to interest group pressure. Interest groups are successful when representing highly concentrated business or other activities. They have much greater economic power than widely dispersed consumers with little representation. Protectionist policies are frequently the result. And as before, regulatory policies beget regulatory policies. (The recently concluded Canadian EU trade agreement taking 10 years to agree and running to over 1500 pages contains all the evidence needed.)

Immigration
Britain has long been a country open to migrants, whether or not they be refugees. There have of course been occasional falters in this long and noble tradition, but they have been both rare and small. The reasons for this welcoming attitude are easy to trace. They lie in the individualistic philosophical and legal tradition that held that individuals could do what they liked so long as they did not harm others. Immigrants were therefore welcome so long as they fitted in – not necessarily integrating in the sense of adopting all local mores, but rather behaving in ways that were not blatantly inconsistent with them. (And of course for most of the period there was no welfare state.)
Was the Brexit vote a break with this tradition? Some, assuming the right of creating windows into men’s souls that Queen Elisabeth I foreswore, assert that it was. But settled traditions take a long time to change. Concerns about immigration may well have had a simple practical cause. When Britain was opened to migration from the EU, the government then in office forecast a trivial increase in such migration. They therefore made no preparations. More schools were not built urgently. Nor were more hospitals. House building did not increase dramatically. There was no acceleration in the development of more public transport. Immigrants increase the population as well as increasing a disembodied “workforce”, and the government of the day paid no heed to that. Hence the many benefits of migration also brought, for some parts of the country at least, problems that would have been avoided had the government displayed some forethought.
There is no reason to believe that the openness of the British traditional liberal mind-set, the tradition of individual freedom so long as it does not harm others, and of kindness to new arrivals, has changed. Britain was after all the first country in the world to have a Jewish prime minister. And perhaps most compelling, Britain has never been plagued, even in the depths of inter-war recession, with unsavoury authoritarian politics of the type that has appeared from time to time in other countries.

Conclusion
Nothing of what is outlined above makes it impossible, or even mildly difficult, for Britain to live on good terms with her neighbours in the European Union. None of it makes it difficult for Britain to trade freely with them, or for people to move freely between Britain and them. None of it creates difficulty in recognising the acceptability of goods and services produced under the regulations of the EU nor for the EU to accept British regulations. All these regulations, after all, are imposed by democracies with the welfare of their citizens in mind, not by cleptocracies or dictatorships. But what the differences most emphatically do is make it very uncomfortable for Britain to be a member of a union of countries all of which have legal systems of the Roman law type, and which is increasingly governed, as a federation, by a body of law of the Roman form.
Two quotations from Lord Denning, who ended his legal career as a member of the House of Lords[1], make the point.The first, from 1974, is as follows. “The Treaty of Rome does not touch any of the matters which concern solely England and the people in it. … But when we come to matters with a European element. … Parliament has decreed that the Treaty is henceforward part of our law. It is equal in force to any statute.”[2]Then, sixteen years later, he wrote, “Our sovereignty has been taken away by the European Court of Justice. … No longer is European law like an incoming tide flowing up the estuaries of England. It is now like a tidal wave bringing down our sea walls and flowing inland over our fields and houses….”[3]
That discomfort would inevitably be felt on all sides, not just by Britain. Britain is undoubtedly suited to be a good friend and partner in all economic activity, in which we include the movement of individuals, to the member countries of the EU. But British membership of an EU constituted as it is now seems to be heading would be comfortable for neither Britain nor the EU: British philosophical and legal roots and traditions seem too different from those on the Continent. The Brexit vote should not have been a surprise to anyone who had read Lord Denning.

22 Dec 2017

Note

1.  What were called Law Lords used to sit in Britain’s House of Lords, and constituted Britain’s highest court. That court was removed from the House of Lords, and named the Supreme Court, only when it was no longer supreme.

2.  H.P. Bulmer Ltd v J. Bollinger SA.

3.  Introduction to “The European Court of Justice” (Bruges Group, 1990)

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