Richard North, 24/04/2017  

Tucked away in the Independent on Saturday and not repeated elsewhere was an article complaining of the "invincible ignorance" of "anti-EU ministers". The remark comes from former ECJ judge David Edward (pictured above) and even though it is confined to ministers' stances on the ECJ, it deserves wider coverage on that point alone.

But the complaint could to extended to cover the whole range of issues relevant to Brexit, where it can fairly be said that "invincible ignorance" is the dominant state in Westminster and Whitehall – and indeed what might also be termed "Fleet Street", the national media in its broadest sense.

The thing about government is that we are used to the narrative, fortified by the television series "Yes Minister", which has it that Departmental Secretaries of State and Prime Ministers sit at the peak of a hierarchy of diligent and gifted civil servants who wisely counsel their political masters on their options.

Thus informed – to an extent to which us mere mortals can only dream, politicians are able to weigh up the options and come to the best possible decisions, keeping the mechanisms of state functioning smoothly and efficiently.

The reality, though, is almost the reverse of expectations. The role of civil servants is not to keep their ministers informed. Rather, they are there to manage the flow of information, ensuring that ministers are told only that which they need to know (in the opinion of the civil servants) and then in such a matter as it will naturally lead to the desired decisions being made.

On that basis, far from being all-seeing and all-knowing, Ministers sitting in the gilded offices, are often the least informed people in the buildings they occupy, not uncommonly relying on Sky News or the BBC to give them a limited appreciation of what is happening, long after their civil servants have known the details.

That, however, describes the best of circumstances, where in each department there is some knowledge and institutional memory on which the "Mandarins" rely.

But the picture on Brexit is far worse. Here, we have "thirty somethings" who have never engaged in EU issues and who are profoundly ignorant of them and lack entirely any institutional memory. What little they know is often based on flawed and heavily biased information, used to cement and justify departmental policy.

On the other hand – and especially with the "three Brexiteers" – they are speaking to ideologically motivated ministers who rely on a simplistic and often fictional construct of the EU to guide them in their dealings with it, heedless of the fact that they are having to work with the most complex bureaucracy in the world.

Never more apt has been the phrase "blind leading the blind", except that this understates the problem. We are dealing in some instances with the wilfully blind who reject the idea that vision would be of any assistance and who spurn the advice of those who can see as being tainted.

From an external stance, it is very difficult trying to second-guess the actions of the ignorant. If one expects decisions to be based on logical conclusions which are reliant on weighing up all the facts and options, then predictions as to possible outcomes will most often be completely wrong.

Many decisions are in fact being taken in response to a flawed and limited appreciation of circumstances, heavily distorted by ideological preconceptions. This is very dangerous because it allows what otherwise might appear to stupid decisions to look quite sensible - and more rational decisions to look ill-founded and risky.

Turning specifically to the subject of the Independent article, we have David Edward warning that withdrawal from the court will not be simple and predicting that an anti-EU clique, who for years had lambasted the European Court, would turn its guns on British courts and judges. He thus slams the "invincible ignorance" of Brexit-backing ministers who believe they can free the UK from the court's influence.

Edward finds himself  "astonished" at what he called misleading promises of autonomy from the court, made by Brexiteer politicians. While the Prime Minister is expected to make distancing the UK from the ECJ an election pledge, he - alongside other academic and political experts – are underlining how difficult it will be for the Government to maintain its hard-line stance towards removing the court's role in British life.

Severing ties with Luxembourg, Edward says, will not be as simple as "leave means leave".  "You can escape the jurisdiction of the ECJ, but you have got to comply with EU standards if you are going to export into the EU", he adds, then pointing out that ECJ is the ultimate arbiter of what these standards mean if there is a problem.

The ECJ, he says, is not "stuffed with European judges who imposed their will on the unwilling British people". Rather, he adds, "a great number of cases we decided were brought by British people precisely in order to be able to trade freely".

As to maintaining "pure sovereign authority", Oxford law professor Paul Craig endorses the Edward view, stating that we will continue to have difficulties after Brexit. For sure. when we leave the EU, all rights and obligations cease, but the reality is that any UK business that wishes to do business in Europe will in effect have to comply with the relevant rules. "The idea we have some pure sovereign regulatory authority in the UK will simply not be true", he says.

Catherine Barnard, professor of EU law at the University of Cambridge, thinks the Prime Minister will find herself in a political bind – forced to appease "hard Brexiteers" by being as uncompromising in her language as she can. "Politically, [Ms May] has got to say Britain will be free from the ECJ because that is what the hard Brexiteers in the Government want. But in reality, two years is just not enough time to replicate the EU institutions", Barnard says.

What will happen is there will be a divorce so she can say we have left, and then there will be transitional arrangements, which will mean from air safety to plant variety, it may well be that we will continue to use the EU bodies because we can't just set up those 50 or so bodies in that time. This means there may still be a role for the ECJ".

The interesting thing here, though, is that while the newspaper is keen to bask in the reflected prestige of law professors and an ex-judge, the thrust of the argument is tiresomely shallow.

As so many standards are formulated at global level and we are having to confront the realities of globalisation in international trade, the ECJ in many respects is the least of our problems. If we are to remain part of that global system, as Peter points out, we as a nation will never recover ultimate sovereignty.

Pure unadulterated sovereignty no longer exists and it hasn't for a long time. Nations, says Pete (who isn't a law professor) have been bound by their agreements for as long as there have been nations. By leaving the EU we, at the very least, retake the right to say no and the right to refuse and propose regulations. We are about to enter a completely different universe of governance.

And therein lies an entirely new and different level of "invincible ignorance" as the "little Europeans" pontificate about their narrow obsessions, oblivious to the broader issues which will dominate decision-making.

In a debate about Brexit where the same old issues are endlessly rehearsed to the point of utter tedium, we need to inject more information and to widen our scope. As long as "invincible ignorance" is the dominant feature of this debate – from all side – we are never going to get that essential element of democracy: informed consent.

But come what may, Brexit continues to show up the information "fault lines", where the traditional opinion-formers are showing themselves to be the least equipped to guide the debate. Ignorance may be bliss, as the saying holds, but we need something more than "invincible ignorance" to shape our future.

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