Let Us Leave the EU - but not yet! Europe and the New British Constitution (2013), by Sean Gabb

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On Saturday the 14th December 2013, Sean Gabb, Director of the Libertarian Alliance, spoke at the Intellectual Minds Conference at the Hilton Hotel in Syon Park, "The European Union and the New British Constitution. Here is a brief summary of what he said:

Part of the consensus within the libertarian and traditionalist movements in England is that membership of the European Union is destroying our free institutions; and that, to recover these institutions, our first step must be to leave the EU.

This claim is not wholly supported by the evidence. For example, many of us blamed the EU for the loss of our protection against double jeopardy at law. Yet Germany and many other EU member states do not allow people to be tried twice for the same offence. Australia, on the other hand, has brought in the same deviation from the rule as we have, and the statutes use the same wording. Australia is not a member state of the EU.

Even very bad things like the European Arrest Warrant are not applied in other European Union countries with the same wooden stupidity as in Britain. In Germany, for instance, it is still not legal for citizens or even residents to be extradited for trial elsewhere. And the most vexatious part of our modern extradition law is the 2003 treaty that allows our fellow citizens to be entrapped and then dragged off to be gang-raped in American prisons.

The EU does not require the British Government to censor the press, or collect DNA samples on us, or to spy on us with millions of cameras. The EU did not require the Essex Social Services to arrest and sedate an Italian visitor, and steal her unborn baby by caesarian section. We are not becoming a totalitarian police state because of the EU. If there is an "Evil Empire," is is based not in Brussels, but in Washington and London.

The main disadvantage of being in the EU is that it enables our own ruling class to govern by decree. British ministers and civil servants push for certain things behind closed doors in Brussels, and then tell us, when we complain about the resulting laws rammed through Parliament, that is it all the fault of those beastly Europeans. As a prime example of this, see the history of the rise and progress of the money laundering laws.

Of course, this is to be deplored, and a decent government – assuming we ever get one – would leave at once: its rules would prevent or delay policies of radical reform. Until that day comes, however, British membership gives us certain offsetting advantages. These are:

1. Oppression has to be co-ordinated between several dozen governments, not all of them run by certifiable lunatics. See, for example, the block so far on minimum pricing for alcohol. Or see the compelled harmonisation of our porn laws with those of more sensible countries. Without that brake on action, I have little doubt we would by now have bar codes tattooed on our foreheads and on the spot castration for suspected child molesters.

2. The supremacy of European Union law, and our associated importation of the European Convention on Human Rights into our domestic law, have empowered our courts to stage a slow-motion coup against the absolute legislative sovereignty of Parliament. This was just about acceptable when the country was run by a committee of hereditary landlords. It became an unmitigated evil once Parliament was filled up with scoundrels. 

I was one of the few people on the right to welcome the judgment in Thoburn v Sunderland City Council. This is the 2002 Court of Appeal judgment in which the Judges announced out of thin air that there were two classes of Statute - "constitutional" and "ordinary," and that constitutional Statutes were not subject to implied repeal or amendment. This has prevented the politicians from abolishing fundamental rights without first looking us in the face.

In this judgment, membership of the EU was used as the rock on which to base the attack on parliamentary sovereighty. The Common Law itself would not have been politically sufficient. Other judgements since then have continued the limitation of sovereignty. 

I thoroughly approve of the transformation of judicial review from a yapping at Parliament’s heels into an increasingly powerful weapon of control over legislation. It would be nice to go back to something like the 18th century constitution. Since that is not possible, the new constitution emerging round us is an improvement on what we had until recently.

Leaving the EU would not sweep away the present ruling class in this country. Leaving would simply give absolute and arbitrary power to that ruling class. Therefore, while not regarding the EU as good in itself, it is a useful means of reestablishing constitutional limits on government in England. We need to choose very carefully when we should leave, and should ensure that the development of our new constitutional safeguards is not damaged.