Brexit: nationalism or abuse of power?

We must be clear no one not even the President is above the law.” (Chair of the U.S. House Judiciary Committee, Jerry Nadler, 10 December 2019).

Fortunately, that is the same for the UK. So, when a Prime Minister breaches the law, he or she attacks democracy. As we all know, democracy exists in part to protect society and the public interest. It is protected through the separation of the power of the Executive (Government) from the Legislature (Parliament) and the Judiciary (judges and the courts).

Yet, in the name of ‘the people’, the UK’s current PM – head of the Executive – has acted unlawfully, just like his predecessor:

  • In 2016, PM May announced that she would trigger Article 50 – for the UK to leave the EU – without Parliamentary consent. In January 2017, the Supreme Court declared that this attempt was unlawful because she did not have the power (prerogative or otherwise) to do so.
  • On 8 December 2017, PM May negotiated a ‘gentleman’s agreement’ with the EU. But it promised the impossible: that the UK would withdraw from the European customs union without any infrastructure on the border between Northern Ireland and the Republic of Ireland (Section 50). A contract that cannot be performed does not exist in law (void ‘ab initio’).
  • On 4 December 2018, for the first time in the history of the UK Parliament, MPs if the House of Commons voted that the Government had been blocking the proper functioning of the Legislature (‘contempt of Parliament’). It is an unwritten convention of the UK’s constitution that Parliament is supreme and the Executive must obey it. Despite Parliament’s request, in breach of the constitution, PM May had refused to make public all the legal advice she had received on her 25/11/2018 Withdrawal Agreement.
  • On 9 September 2019, PM Johnson shut Parliament for a period of five weeks. The Supreme Court ruled on 24 September that he did not have the power to do so (prerogative or otherwise) and the closure was therefore unlawful – void ‘ab initio’ (as if it had never been shut down).

Why such desperate measures?

When the answer is not clear, to quote All the President’s Men, “follow the money”…

The governments of Prime Ministers May and Johnson have been geared up for much of their political party funding to come from the world of finance.

PM Johnson is also heavily sponsored by those with funds abroad – about 65% of its political donations come from hedge funds. He appointed Sky UK’s co-manager Andrew Griffith as business advisor, who gave the use of his mansion in Westminster (worth £ 9.5 million) to Mr. Johnson during his election campaign last summer. Sky’s owner – Rupert Murdoch – being a billionaire supporter of President Trump and Brexit.

Rt Hon Andrea Leadsom, former Lord President of the Privy Council and current Secretary of State for Business, Energy and Industrial Strategy is the former manager (under the family name Salmon) of the private investment firm of her brother-in-law in Guernsey, De Putron Fund Management Ltd (which gave £800,000 to the Conservative Party).

Rt Hon Sajid Javid gave up his, according to Bloomberg, £3 million a-year senior MD post at Deutsche Bank to be Home Secretary under PM May and now Chancellor of the Exchequer

For the Rt Hon Jacob Rees-Mogg, Brexit appears to be more of a personal story. In 2007, he co-founded an investment management company, Somerset Capital Ltd. Unlike hedge funds, investment funds have fiduciary responsibility to investors. Therefore, an asset management company’s actions are designed to protect its trustees. So when, in 2018, its then Investment Manager Rees-Mogg opened up an office in Dublin (which will remain in the EU whatever happens) it appears to show that he does not trust the outcome of Brexit and fears the company’s trustees are unlikely to benefit it if the business remains in the UK. That, plus the 12% corporate tax rate in Ireland and the Euro is a much better deal than staying in a Brexited UK.

Rt Hon Rees-Mogg is still a member of the LLP of which Somerset Capital Ltd is a corporate member despite his now being Lord President of the Queen’s Privy Council (more on that below…).

No surprise, then, with the interest of the Conservative party’s political donors in mind, that on 1 August 2019, just after PM Johnson took up office, that the Rt Hon Elizabeth Truss, announced that up to ten new Freeports were going to be put in place in the UK. Trade policy is renowned for its complexity. And with tariff walls looming from the EU after Brexit and long complex negotiations ahead with many nations, this no tariff on imports or exports approach may appear attractive – but Freeports could be penalised by the EU and by the WTO for unfair competition.

Speaking of Liz Truss, remember the unanimous first instance decision against PM May of October 2016 (upheld by the Supreme Court in January 2017), when the Daily Mail accused the three High Court judges of being the “enemies of the people”? This was aggravated by the fact that the Minister responsible at that time, the then Lord Chancellor and Cabinet member the Rt Hon Elizabeth Truss failed to defend them in what was a perfect example of abuse of the Judiciary by the Executive.

One of the three eminent judges attacked by the British press was Lord Chief Justice Thomas of Cwmgiedd, President of the Judges of England and Wales. In his testimony before the House of Lords’ Committee on the Constitution, the Lord Chief Justice stated that Rt. Hon. Truss “was absolutely wrong from a constitutional point of view” in not defending the judiciary. However, PM May merely transferred Rt Hon Elizabeth Truss to another Cabinet position in June 2017, without any apology.

And PM Johnson must have appreciated Rt Hon Truss’ failure to defend the judiciary, because not only did he reward her (as did May) with a position in his Cabinet, but after the Supreme Court’s decision against him on September 24, he attacked the Judiciary by stating that the Supreme Court “was wrong”.

Less well known, is the abuse of the Executive of the Legislature – facilitated by the greatest weakness in the UK’s constitution: the Privy Council.

It is the Privy Council that exercises the leftover ‘prerogative’ powers (legislative, executive and judicial) that belonged to monarchs of old.

With around 650 unelected members, all given the title ‘Right Honourable’, it is the same size as the House of Commons. But unlike the House of Commons, the quorum of its meetings is usually only three. That means decisions can be taken with the consent of only three people, plus the monarch!

It was no accident then, that it was the Privy Council that PM May tried to use to trigger Article 50, instead of Parliament.

And it was at a meeting of the Privy Council on 28 August in Balmoral that PM Johnson’s order to shut down Parliament was approved – by just three people, plus the Queen: The Rt Hon Jacob Rees-Mogg; Rt Hon Baroness Evans of Bowes-Park and Rt Hon Mark Spencer.

This was an illegal shutting down of Parliament. And the current PM has tried to go yet further – by removing the very ‘oxygen of democracy’: the public’s right to know – freedom of information. PM Johnson has refused:

This lack of transparency – lack of democracy – has caused a stir, but Parliament, now suspended from November 6 until the 12 December elections, can do nothing.

Even worse, the agreement that PM Johnson has negotiated with the EU – that he does not want to have scrutinised by providing the economic analysis sought by Parliamentarians  – is neither within the letter nor the spirit of the treaty of peace that ended 30 years of civil war in Northern Ireland:

The Belfast Agreement, signed on Good Friday 10 April 1998, states (Article 2 ‘Constitutional Issues’ (1) (iii):

“…it would be wrong to make any change in the status of Northern Ireland save with the consent of a majority of its people”.

The majority of the Northern Irish people voted in 2016 for no change to their status (56% wanting to remain in the EU). Despite this, PM Johnson is proposing a change – a huge one – for a maritime border between Great Britain (Scotland, England and Wales) and Northern Ireland.

And let us not forget the implications of Johnson’s solution for the Scottish people: a border between Scotland and the island of Ireland. The population of Scotland is more than 10% larger than that of New Zealand and 62% of those who voted wanted to stay in the EU. No surprise then, that independence is looking like a better option for the Scots…

These actions of the Executive are endangering the very existence of the union of countries that is the United Kingdom. Is this really all in the name of “nationalism”?!

Let’s get back to following the money…

On 4 March 2019, PM May prevented the adoption of The Financial Services (Implementation of Legislation) Bill of the House of Lords that was designed to better regulate tax havens. The aim of the Bill was to force British Overseas Territories and Crown Dependencies to have public registers of all companies located on their islands by 31 December 2020 at the latest.

The islands of Man, Guernsey and Jersey then thanked PM May for this in a joint statement. According to them, as Crown Dependencies, the UK could not legislate on internal affairs without their consent. This is false because it has already happened! For example, in 1967, the prohibition of pirate radio stations to protect the general interest of the citizens of the UK.

Arron Banks was no doubt happy too. His company Rock Holdings Limited is incorporated in the Isle of Man, and invested £8 million in Brexit advertisements just before the referendum: a sum large enough to change the referendum result, according to Professor Howard of Oxford University.

Make no mistake, the EU itself has caved many a time to lobbying by private interests; the EU’s Anti Tax Avoidance Directive being one such example. No one should be under any illusions about the EU and the fact that it does need reform.

However, what the UK’s Executive has been up to since the 2016 referendum – including intentionally breaking the law (‘unlawful’ being a synonym of illegal) – begs the question: has Brexit largely been motivated by a desire to serve the citizens of the UK or to protect the financial interests and personal interests of a minority?

Joining up the dots, it is difficult to conclude other than “yes”. Ignoring what led to the Brexit vote, it is now being driven by those seeking short-term gain through playing markets and shorting the pound; and for long-term gain both by the very wealthy looking for an even more lax tax and regulatory regime in Britain and by global – including US – corporates wanting access to the UK market, including the National Health Service.

If a ‘hard’ Brexit is achieved, there could be an increase in the health system bill which the British Medical Council estimates would rise from £18 billion to around £45 billion. That threatens to destabilise not only Britain’s health service, but the public health service model where it exists around the world because the current might of the NHS’s negotiated prices for drugs has the effect of holding down prices globally.

Therefore, the burning question remains: is the UK’s ancient democratic constitution fit for the 21st century? Its unwritten conventions and the Privy Council depend on old-fashioned, ‘honourable’, behaviour to function democratically. But politics as a vocation is going out of fashion, so honour and honesty have been ruthlessly thrown out of the window – ‘bigly’, to quote President Trump …

If our legislative and judicial institutions, and indeed citizens, are not sufficiently protected from the Executive, then urgent reform is needed. Apparently “no one is above the law”. But the Supreme Court cases referred to above, which the UK Government lost, were brought by UK citizens, under the procedure of Judicial Review. And Judicial Review is now being threatened by the current Prime Minister:

We will ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays” (Conservative Manifesto 2019, page 48).

So maybe the time has now come for a written constitution, not only to defend the public interest from corruption and big money interests, but also to enshrine certain rights, such as access to healthcare?

Now, before democracy is also booted out of the window…

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