The Path to Freedom
Literalism is the enemy of the imagination, that much is indisputable but it can also be the obscurer of fact and that is something less widely acknowledged, usually by people who lack imagination. On the face of it Article 50 of the Lisbon Treaty is what it is, says what it says, and is applicable accordingly without reference to anything else. Firstly that is not how the law works, no piece of legislation is read out of context with other legislation, and certainly no section of an Act is read outside the context of the Act in which it is found. Obvious. Not so far to everyone, not I think to its authors and most definitely not to the only people who have thus far sought to make use of it.
It is the legal mechanism by which Brexit was triggered and while too long to quote here is short enough and simple enough by European Union standards for Treaty provisions. It was designed to quell the discontent of those who rightly pointed out that in the absence of a mechanism to leave the EU was effectively inescapable, membership irreversible, in populist terms “a prison”. Whether anyone ever thought it would be used outside a sterile debate is now arguable but it hardly matters. It has been triggered and thus set in train under its most literal interpretation. This was perhaps inevitable considering the most likely political unit who might make recourse to it, and subsequently did, the United Kingdom of Great Britain and Northern Ireland.
I give that political unit its full title not simply to be pedantic but to point out the most obvious reason why it has been applied so literally. The UK is itself a Union, and as such bears many of the flaws of the EU itself, which it cannot very well point out too loudly, or at all, given the implications. There was talk then by Brexiteers of “democracy” and the “supremacy of our Parliament”, the “sovereignty of the State” and a host of regulatory, economic and diplomatic issues. But no mention of the Nation. There couldn’t be, for the UK is not a nation, anymore than the EU is. It is a political construct in the same way, and arguments then against the EU could never stray so far as to be mirrored back.
The UK’s union came about in a considerably more complicated way and over a considerably longer timescale, but that was not to say it reflected better on the UK than the EU. In truth the EU has a stronger claim to legitimacy insofar as no act of force has yet been used to coerce any member state to join, and none, of the military kind anyway, is being used to prevent anyone from leaving. Ireland is testimony enough of why the Brexiteers don’t want to go there in terms of making their case. And so Article 50 is quoted and interpreted literally. Scotland voted Remain, Scotland is a nation. Northern Ireland is well, “Northern Ireland”, but in any case the six county area voted Remain. Wales voted Leave, Wales is a nation, but would it have mattered. In the Member State, that is the United Kingdom of Great Britain and Northern Ireland the only vote that mattered was in England. England decided to leave the European Union and enough people in Scotland and Wales and “Northern Ireland” agreed to form a majority within the political unit.
Boris Johnson could not very well write as Pearse did:
“They have conceived of nationality as a material thing, whereas it is a spiritual thing. They have made the same mistake that a man would make if he were to forget that he has an immortal soul. They have not recognised in their people the image and likeness of God. Hence, the nation to them is not all holy, a thing inviolate and inviolable, a thing that a man dare not sell or dishonour on pain of eternal perdition. They have thought of nationality as a thing to be negotiated about as men negotiate about a tariff or about a trade route, rather than as an immediate jewel to be preserved at all peril, a thing so sacred that it may not be brought into the market places at all or spoken of where men traffic.”
And there is the thing, though we are bound to discuss what may be done and not done in terms of politics and the practicalities immediately before us, we are not bound to consider them the whole sum of the matter. The issue is nationality, and can no more be maintained within the UK than it can within the EU. We must find a better way, more clever or more dangerous, that is not what matters, but that “Ireland, a Nation!” is always the end sought, the means only a matter of debate .The mere transference of English methods to Irish circumstances will not do, and it is not a matter of moderation, but the furthest extremity of separation from foreign domination we seek as Irish nationalists, and we can and must be smarter in doing it.
Thus we read Article 50 and realise that the European Federalists have not been so very clever at all. They too have thought in political terms and lacked then the imagination to understand how the words they have written may be used, other than literally, which they had already anticipated and thus secured the Union by means of trapping the member state in the practicalities of Leave. This they have already done to the UK and I doubt the UK will find a way out. I wish the English well in that ultimately disinterested way, for England is not my nation, and though I find no conscious ill will neither can I summon up much emotion, not to mind action in her defence.
“The National Party approaches our membership of the European Union from the principle of refusing to accept the threatened destruction of our Nation’s freedom, and will endeavour to restore those freedoms which have already, unjustly, been given away.” We have been variously accused of moderation here, or deliberately vague use of language on the other.
As to the first, there is no moderation in a Principle which binds policy to the Nation’s freedom, and moreover commits us not only to what we currently hold but restoring that which has been lost or given away. Irexit on the face of it is a more dramatic statement, but is it? We would crash out of the EU as quickly as allowable, technically two years, but who knows practically. But into the Commonwealth? Or a single market with the UK and consequently dependence? Irexit is hostile to EU membership, certainly, but it doesn’t commit to National Freedom.
As to the second, when declaring Principles, which are another means of making absolute promises, isn’t it in fact necessary to allow the widest possible latitude for methods, given that what we are dealing with here is an ever evolving situation? And that the Principle must be maintainable through changing circumstances or else becomes a momentary expedient that might well have to be changed, which is to say no principle at all? It is precisely because the promise of Principle No. 5 is so absolute that it must be worded so as to be maintained whatever happens.
Across the nations of Europe and the member states of the Union there are many political factors at play, not least the growing popularity of parties either opposed to their country’s membership or the current form of the Union. It is worth noting that not even all of the EFDD parties, the parliamentary group that UKIP led were or are Exit parties. And some governments, notably that of Poland and Hungary, are facing attempted sanction by EU Federalists but have not even mentioned Exit as an option being considered, but neither is submission.
They are working consciously or unconsciously on Compact Theory of Law, specifically that since the Union is a voluntary compact or contractual arrangement between the member states, nothing can be enforced as such except within the limited terms of the Compact, the Treaties, and that as independent nation states (no less, indeed more) than member states they have the sovereign right to simply refuse any and all so-called “European Law” since it is not law in the ordinary sense but consensual agreements, from which consent may be withdrawn. Nor is it necessary that the means of withdrawing consent from individual acts of the Union necessitate exit from the Union in totality as envisaged by Article 50 of the Lisbon Treaty.
Since the first principle of all law is that you cannot be the judge in your own case, the European Court of Justice, created by the Treaties cannot be the enforcer of interpretation of the Treaties, but at most can arbitrate on their meaning within the confines of acknowledging that the States themselves alone may be the judge of whether a “law”, by Regulation or Directive of the EU is enforceable within the borders of their nation state. And it follows that such is not to be decided by vote of the Union but by the member state government. It is only by its own ruling that the ECJ claims primacy of EU “law” over national law.
There is reference to this primacy in the same Lisbon Treaty, that also contains Article 50. But the reference is a reference and the Article is an Article. In permitting ultimately and “in accordance with its own constitutional requirements” the secession of a member state it is in fact the European Union which has re-established, beyond all doubt, and certainly beyond the reach of authority of its own Court’s rulings, that the member states are sovereign, that their sovereignty in the final instance is as absolute as to permit rejection of all obligations under the Treaties of Union, and therefore is absolute enough to permit rejection of individual obligations under the Treaties. There is no mechanism for expelling a member state for exercising this, their natural and absolute right.
The National Party shall in government consciously invoke the principle of Compact.
In practice this means that it is neither immediately necessary, nor as we have shown is it expedient in the national interest, to trigger the literal meaning of Article 50 by exit or secession. Based on Compact theory we will instead invoke the declaration of absolute sovereignty of the nation state, the inescapable implication of the Article itself, even if it were not true in Natural Law.
The agency shall be Interposition and Nullification. Through the sovereign authority of an independent Nation State, a National Government of Ireland will lay claim to the unqualified right to interpose itself between the Irish people, with whom all sovereignty on this island resides or ever shall reside, and such authorities as there are in the European Union, to defend and vindicate their rights and freedoms to the point of nullification, declaring a regulation or directive of the Union null and void within the area of jurisdiction that is the Irish Republic. There shall be no Law in the Republic except the laws of the Republic, and those laws may well enforce agreements made with foreign states for expedient or temporary purposes, but those agreements entered into shall not of themselves be law, nor enforced except by law.
Now we are not obliged to guillotine the Irish economy by premature exit from the EU upon which we have rightly or wrongly become trade dependent. Nor are we precluded from re-orientating that economy away from EU dependence, over however long a time frame is suitable so that in the event of wishing at some future date to trigger the mechanism of secession that might be an economically neutral or even advantageous thing to do. Nor are we bound to surrender to the idea that the only EU there can be is the one there is, but in concert with friendly governments of the other member states we may seek to reframe the Union into a “Europe of the Fatherlands” as De Gaulle proposed or dismantle much of the machinery of Union back to Community status. We can in such concert seek to eliminate the poisonous words “ever closer union” and replace them with a grander or at least more appropriate vision for all our peoples. Or we may stand alone altogether, within the trading arrangements of the Union, and progressively reject and overturn impediments to the full exercise of National Freedom.
We shall need a National Government with which to do it, but we need a National Government with which to do anything. So let’s set about getting ourselves one and making a path to freedom.
Uachtarán An Pháirtí Náisiúnta