OPINION Brexit: we live in interesting times

The best of times, the worst of times, writes David Langwallner


Turning and turning in the widening gyre  
The falcon cannot hear the falconer;
Things fall apart; the centre cannot hold;
Mere anarchy is loosed upon the world,
The blood-dimmed tide is loosed, and everywhere  
The ceremony of innocence is drowned;
The best lack all conviction, while the worst  
Are full of passionate intensity.

WB Yeats, The Second Coming (1919)

I am an Irish barrister in London in turbulent times and have recently penned some political pieces on Brexit, largely as a response to Irish journalist Fintan O’Toole’s caricature-portrayal of Brexiteers as ‘swivel-eyed loons’, a kind of inverted racism typical of the insult-hurling nature of our times where reasoned argumentation has been replaced by post-truth simplifications and he who shouts the loudest gains the most traction.

This article for Counsel focuses on Brexit’s likely legal consequences but a political overlay cannot be completely sidestepped, nor should it be.

The Irish question looms large. Ever since the Home Rule debates of the 19th century the Tories have gone to political bed with the Ulster Unionists. Now, Metternich said that Italy was not a country but an idea; so is Ireland. The country is called The Republic of Ireland under The Government of Ireland Act 1920. The north of the country, in simplistic legal terms, has been part of the United Kingdom ever since the lobbying of unionism pioneered by the legendary English and Irish barrister Edward Carson (eventually a House of Lords judge who I once played in Trinity in a re-enactment of The Trial of Oscar Wilde).

Thus any Brexit cross-border agreement hammered out post-12 December of a North of Ireland territory both in and outside of the EU will be met by the concerted objection of the Democratic Unionist Party (DUP) who fear it is a gateway to a United Ireland.

The larger Irish question pertinent to all EU nationals is now that a government minister has, in effect, announced that within 14 months all EU nationals have to regularise their affairs and apply for leave to remain with a discretionary right to refuse by the end of 2020.

Said legislation is in draft form but has not been made public; a shroud of secrecy redolent of that most odious of things Secret Laws or indeed hidden agendas.

Michael Gove and others murmur about the encouragement of immigration après la deluge but discretionary admission, or indeed discretionary leave to remain or residency all depend on the criteria that are used.

What is deeply worrying is that such criteria should have an overwhelming economic component with the negation of the cultural and academic enrichment ever since the refugees from fascism, from lawyers to Freud, enhanced the life of the UK. How much desirable alienage classified solely in terms of economic contribution is now on the cards? Yes, to Russian oligarchs but no to an impoverished teacher?

I have appeared extensively in Westminster Magistrates’ Courts and the extradition of the 'undesirables' on sometimes historic crimes is a noticeable and disturbing trend. Legal niceties of time served in the UK for non-national prisoners will, I imagine, no longer prevail and one senses that conviction for crime in excess of a year will lead to inevitable deportation. A more sotto voce form of ethnic cleansing?

Of course, reciprocal extradition arrangements under The European Arrest Warrant will now probably go and be replaced by a mosaic of side deals and state-to-state treaty arrangements. Chaos but significant work for lawyers; a saving grace from a professional standpoint.

In a climate of uncertainty, the rule of law in the sense of the observance of procedural fairness, equality of arms and respect for human rights can be slipshod and arbitrary but at least the judges are now, in a stiff upper lip way, preserving a sense of calm. Calm before the storm. The gathering storm.

Many business and corporate structures are now in a pell-mell drive to push offshore, relocate the business seat or leave. A perverse consequence of Brexit at one level may be the enrichment of Irish tax lawyers. Further, subject to the protectionist regulatory stance of The Irish Law Society and The Irish Bar, many legal professional colleagues have inquired of me with marked interest as to the feasibility of securing an Irish passport, now something of tangible value.

Leaving aside non-nationals, what about UK nationals’ legal rights or entitlements post-Brexit?

Brexit is a complex conversation and is also based on the failure of the European Union to live up to its mandate. Much of the Leave vote was dictated by the imposed austerity that destroyed the social structure of Ireland and Greece, save for the self-anointed worthy. The cartel of neoliberalism. British decency and institutional structures wish, perhaps in an incoherent way, to preserve a society that encourages moderation, fair play and reason.

Thus the neoliberalism which has destroyed the social structure of Ireland and Greece has created what Nobel prize-winning economist Stieglitz called The Great Divide (2015) and, in my view, endorsed vulture-esque running of those countries by Canadian and American funds and vampiric investment banks.

I have represented tenants in many housing and banking cases in Dublin and in one instance a community estate of long vintage in Tyrellstown in Dublin who are to be collectively evicted – not for non-payment of rent but because the asset was sold lock, stock and barrel to funds fronted by Goldman Sachs. The liquidation of a community and the less well-off on behalf of an undeserving elite bailed out by toxic austerity and ‘bad bank’ NAMA (National Asset Management Agency), which the good burghers of the North of Ireland are prosecuting. We see wealth cartelisation, homelessness and unsustainable mortgages (often from banks who left the country) whilst rents sing unaffordability, incomes are unsustainable, lives unsustainable and all imposed by a faceless bureaucracy.

Thus, I believe the British people have much to fear if they leave Europe and transnational corporations push through TTIP (Transatlantic Trade and Investment Partnership) in order to facilitate Canadian and American corporations to sue the living daylights out of employers who dare to afford people pensions, health care and a quality of life and work. The EU Commission has at least blocked TTIP.

Further, if Mr Trump gets his grubby paws on the NHS. What will happen to UK health care rights? Certainly, non-UK nationals are in the privatisation power grab. As indeed, in my view, will be housing rights.

The EU treaties and decisions of the European Court of Justice and sundry directives and regulations have also imported the provisions of the European Convention within the EU remit. So Article 8 issues, or indeed Article 3 arguments in terms of direct effect, are now inapplicable and are now less persuasive and can be not followed. The social chapter goes.

Pre-12 December the great tradition of Burkean moderate conservatism and anti-extremism is gaining traction. Hatred woven into the British character of extremism. The Tory grandees Heseltine and Clarke are perturbed, Lord Pannick sails in twice to stop the suspension of democracy and the Benn Act was sought to be enforced by the Scottish courts with the potential prosecution of Prime Minister Johnson.

Of course, Brexit may not happen at all but neoliberalism will not permit a socialist ascendency so, in my view, it will.

Banksy’s painting, pictured above, reminds me of what the legendary American journalist H L Mencken called the gaping primates. So staying with Banksy: are the Neanderthals taking over?


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David Langwallner

David Langwallner is a graduate of the Harvard Law School and the London School of Economics and is a barrister at 1MCB. He is a published author and writes monthly columns in the Village magazine in Ireland and the website Cassandra Voices. David was 2015 Irish Lawyer of the Year for his work as director of the Irish Innocence Project.