Dougan's recent intervention
in the EU Referendum debate, therefore, is of some significance, and especially when he is accusing the leave campaign of "dishonesty on an industrial scale".
We would, of course, not disagree entirely with that thesis, although an independent commentator would be forced to concede that this defect applied to both sides of the campaign, and especially to our current Prime Minister. But then, Dougan is very far from being independent, admitting to being a "remain" voter.
However, he does purport to have come to his decision to support "remain" as a product of his "independent" academic study. As we will see, however, Dougan himself is no stranger to dishonesty and in his video he puts such familiarity to good use.
Looking at just one segment of this, in what I hope will be an expanding analysis, one sees the gallant professor tackling the situation in the UK, should we decide to vote for Brexit.
His concern here, it would appear, is to spread the uncertainty, in large, measured doses. As to the situation, he says: "I have to say that the main answer is no-one has a clue – nobody has a clue. And if anybody claims they have some detailed or precise understanding of anything that will happen post leaving the EU, then they're probably very seriously deluded".
Of course, there is an element of "straw man" here. No one would claim that they know what will
happen. But, we can offer various ideas as to what could
happen. That is the basis of Flexcit
That much Dougan does concede. There are, he says, "basic constitutional principles of the UK, of the EU, of international law, international trade, which help us identify certain parameters in which the future might hold". These "don't give us many answers but the help at least identify some parameters", he adds.
Of those, he identifies "four particular challenges which will occur in the event of a vote to leave", and I am going – in this post – to look at just one, the first "challenge" that he identifies. Internally, he says:
… there will have to be a comprehensive review of the UK legal system because, for forty years, UK law has evolved in combination with, under the influence of EU law and the two are virtually impossible to distangle (sic).
This will be an enormous technical undertaking... It will have to be done very, very quickly and it will not be done through Parliament. It's simply impossible to imagine a situation in which Parliament can actually undertake a comprehensive review of the entire UK legal system.
So there's pretty strong consensus that the only way this can be done is through an enormous delegation of power from Parliament to the Government and that Government will effectively take an entire range of policy decisions about whole fields of UK law.
Regardless of what else you might think of him, positive or negative, Jeremy Corbyn was completely right when he said that the entire UK legal system will be subject to a very fast, sharp shock review and whole swathes of legislation – be it on workers or consumers, the environment – may well be deeply affected.
In not dissimilar circumstances, confronted with this sort of thing, I have resorted to the use of a very specific technical term: "bollocks". This is pure, unmitigated bollocks, so far from reality that it cannot possibly be accidental. This, to me, seems to be a quite deliberate attempt to spread doubt and uncertainty.
Addressing this, we have to focus on the core of his claim that there will have to be a "comprehensive review of the UK legal system" and it will have to be "done very, very quickly". It is these two claims, juxtaposed, which make the core, and which make the lie.
Of course there will have to be comprehensive review, but there is not a scintilla of evidence or experience to support a claim that it would need to be done rapidly, much less "very, very quickly".
It is not as if we haven't been there before. Typically – and repeatedly – what we see in transitional situations is that the whole of the legal code from the previous administration is re-enacted and remains in force until measures are taken to revise or repeal individual laws. That is most likely what would happen when we leave the EU.
In Flexcit, we report this happening in India, on independence in 1948 and on the independence of the Irish Republic from the UK. Furthermore, a causal romp round the internet will yield many more examples.
For example, as part of the Hong Kong
settlement in 1997, there was between the UK and the PRC a Joint Declaration which guaranteed the continuance of the legal system. Under Article 8 of the Basic Law, the laws previously in force in Hong Kong were to be maintained.
Then, after the fall of the Soviet empire in 1989, the Polish Constitutional Tribunal
decided that existing law created by the Communist authorities did not lose its validity and remained in force.
Although the system was undergoing "progressive erosion", and moves were being made to change the constitution, the appointment of the Constitutional
Tribunal "did not change the face of the system, did not yet mean a dramatic transformation of the system of state, did not set up a state of law".
As to the timing, we had in Flexcit pointed out that, while independence was declared in India in 1948, a law review commission was not set up until 1955 and, so leisurely did it proceed that there are still laws on the Indian statute book that originated in Westminster.
Similarly, of Poland, although the collapse of the Soviet empire occurred in 1989, the Constitutional Tribunal did not make its ruling until 1995.
On the face it, therefore, the UK would follow a well-worn path. It would repatriate and re-enact EU law and keep it in force until such time as appointed panels got round to looking at individual laws, then making their recommendations to Parliament.
This, however, is not something Dougan wants us to consider. Having falsely established the need for urgency, he calls in aid a "pretty strong consensus" to tell us that the only way this can be done is "through an enormous delegation of power from Parliament to the Government", and then adding the dubious authority of Jeremy Corbyn - that well-known expert.
We can see exactly the game Dougan is playing. Those looking for a democratic settlement are being told that things will get worse if we leave. "Government will effectively take an entire range of policy decisions about whole fields of UK law", he says.
Yet this idea of a "consensus" is utterly fraudulent. Over term, there has developed a specialist branch of academia devoted to the study of what they call "transitional governance", which has spawned a massive body of literature, discussing how legal transitions can be achieved.
And from this
, to this
, and by reference to hundreds of other papers, the one thing of which you can be absolutely sure in this field of study – there ain't no consensus.
Here we have, therefore, an academic complaining of the "dishonesty" of the leave campaign, while himself using the prestige and authority of his position to perpetrate his own, studied dishonesty. Under the pretence of independence, this in many ways is even more despicable than Alexander (aka Boris) Johnson's pathetic little lies.