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We disagree … so you must be lying?

From working as an independent expert witness, I know only too well that it is not unusual to find one’s client acting as though nothing the opposing party says can ever be believed. As a mediator, I have seen this attitude taken by both sides simultaneously. Sometimes in a dispute, both sides are inveterate liars. But quite often I would see two parties who were both incapable of seeing that their opponent’s point of view was not built (entirely) on falsehood. It seems that is where we are now with Brexit.

How could O’Brien seriously believe that Brexiteers were quite simply lying about the existence of freedom of movement rules?

This week, I attended a talk which was ostensibly about the need for press regulation. But it was couched in terms of “Brexit and the Rise of Fake News”. The lead speaker was James O’Brien, a radio talk show host and sometime Newsnight presenter for the BBC. Despite portraying himself as the voice of objective reason – a claim he expressly made in response to a question from the audience – he asserted that EU freedom of movement was a lie. Theresa May, he told us, was wrong to claim that Brexit would allow the UK to control its own borders, because the government can already do that whilst inside the EU.

O’Brien’s source for this extraordinary claim was an EU directive from 2004, codifying the free movement rules as they were at that time. He read out Article 7 of that Directive to enforce his point. But the EU has since passed the Treaty on the Functioning of the European Union (aka “the Lisbon Treaty”) and given legal effect to the Charter of Fundamental Rights of the European Union (in 2007 and 2009, respectively). These documents contain crucial components of the rules on free movement as they now stand.

See also:  A Few Good Men - but this one?

I doubt very much that O’Brien was deliberately lying. I think he just made a mistake. It was quite a big mistake, but an easy one to make. I have often tried to look up a piece of EU-legislation and not been quite certain that I have uncovered the full story. I, too, may have failed to uncover the full legislative picture on this very issue, but unless the Lisbon Treaty and the Charter of Fundamental Rights have been repealed without attracting publicity, I know that O’Brien’s evidence was well and truly out of date.

But what I find so utterly astonishing is that, after three years of discussion around freedom of movement, starting with David Cameron’s largely-failed, pre-referendum attempt to re-negotiate the UK’s obligations under freedom of movement, moving on through the referendum debate and the post-referendum Brexit negotiations, James O’Brien could seriously believe that Brexiteers were quite simply lying about the existence of the freedom of movement.

Perhaps the ultimate irony is that, before and after his talk, copies of O’Brien’s book, How to be Right, were on sale at the event. O’Brien was offering to sign copies. I wasn’t moved to buy one.

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