Brexit and the Constitution

December 9, 2018

in Opinion

Originally posted to Facebook as a series of comments in March 2018. Edited for clarity.

The principle of Parliamentary sovereignty means neither more nor less than this, namely, that Parliament thus defined has, under the English constitution, the right to make or unmake any law whatever; and, further, that no person or body is recognised by the law of England as having a right to override or set aside the legislation of Parliament. ” – A.V. Dicey (1835-1922)

Comments on Parliament going “beyond its mandate” and Britain not having a written constitution being a “loophole” that allowed this EU referendum to happen is a conception of democracy that is absolutely foreign (ahem) to British history, tradition, and custom. In British law, Parliament is sovereign. We fought an actual civil war that killed over 200,000 people to establish that principle. Parliament can pass whatever legislation it likes, and the courts are not permitted to overturn primary legislation because of the personal opinions or legal traditions of our judges – I consider this a good thing given what has happened to America. That is why the referendum is only advisory – because a referendum cannot bind the legislature, which is Parliament, because it is sovereign. The leader of the largest party in Parliament takes delegated power as the Executive from Parliament, and they can do what they like with it, subject to the will of Parliament. This government, however much I hate it, has the same legitimacy to rule as the governments that took us into the European Community, the EU and signed off on Maastrict and Lisbon. That is the system we have.

When the Lib Dems went into Coalition in 2010, they demanded and were given a portfolio of constitutional reform. They chose not to campaign for Republicanism, abolition of the House of Lords, or for more power to be invested or divested from the Executive or Legislature, or for a written Constitution, they chose to campaign for AV+, which was roundly defeated in another advisory referendum in 2011. The demographics of that referendum were roughly the same but no-one disputed that result as merely the outcome of voters who didn’t know what was good for them.

Remainers say that if Leave had lost, we’d be doing much the same as them, and that is not true. I went to bed on the 8th June, 2016 believing we had lost the referendum, and I was highly displeased but I accepted that as the outcome. If I had woken up on the 9th June still having lost, I would have been deeply miffed, but I wouldn’t have spent the next year of my life trying to find creative ways of trying to leave the EU anyway, loudly denouncing Remainers as having no idea what they were talking about, and questioning the democratic nature of the referendum. I would absolutely have continued to support and campaign for us to leave the EU, but I would have done it the old-fashioned way of making my arguments citizen by citizen until enough people agreed with me to return to the question. This is not what the majority of Remainers are doing – the number of times I have people, assuming because of my demographic as a middle class left-wing young woman that I voted Remain, explain to me how it’s alright, we’ll overturn the result as soon as enough Leavers die, simply disgusts me.

The problem people have with the narrowness of the result is reasonable, but the problem was a) that the referendum was called in the first place given the political circumstances and b) the inherent contradictions of a state which claims to be representative of the people but which primarily exists to serve the needs of capital.

I find it just bizarre that people are getting exercised about the democratic nature of the British state, but the European Commission which proposes legislation to a lame European Parliament, and which is unelected by anyone, is apparently not only fine, but actively desirable. Where were they when Europe set up a “peace-keeping” military force? Where were they when Western troops began to operate in Somalia, Niger, Mali, Libya and the Central African Republic? Did you even know they were there?

Where were they when the EU started paying farmers for their agricultural produce and either leaving it to spoil or shipping it wholesale to poorer nations, disrupting their internal economies and preventing them from become self-sustainable, while keeping food prices within the EU artifically high and favouring large scale farmers and countries who have more rural populations like France and Spain?

What do they think of the refusal of smaller countries like Iceland and Norway who are dependant on their fishing trade to sign up to the EU because they don’t want to be beholden to the Common Fisheries Policy which enforces the will of bigger players against the needs of the economies of governments elected by democracies, even though the same people who want us to remain in the EU regularly post memes about what an amazing job Norway and Iceland are doing for their citizens?

I doubt they think of it at all.

Parliament gave a referendum to the people, and that referendum was legally not binding because only Parliament can legislate in this country. Parliament is now legally responsible for dealing with the outcome of that referendum, and as the democratically and duly elected representatives of the people, their job is to feel their way through the details that couldn’t have have been set out in a Yes or No question – that’s why Brexit legislation has fifty million amendments attached to it every time it comes up. That’s what the democratic process looks like. If the EU has a problem with that – well, that’s why I voted Leave.

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Since Article 50 was triggered, there are some recurring themes in the EU debates that rage across my social life that warrant some scrutiny. It’s always good to fact-check, and I’m afraid you are mythtaken on some issues. The facts:

The European Union is not very nice to migrants if they’re not European.

Migrants look through the fence as they wait to cross the Slovenia-Austrian border in Spielfeld, Austria, on October 22, 2015.

“Migrants who are refused entry to the EU and dispute the decision should be detained to prevent them staying illegally, the European Commission said Thursday as it unveiled measures to get tougher on migration.

People who have been told they will be returned to their home country and “show signs they will not comply, such as refusal to cooperate in the identification process or opposing a return operation violently or fraudulently” should be detained to “prevent absconding,” the Commission said in a statement Thursday.

Migration commissioner Dimitris Avramopoulos said the measure was “in full compliance” with human rights laws and it would “not only take pressure off the asylum systems in member states and ensure appropriate capacity to protect those who are genuinely in need of protection, it will also be a strong signal against taking dangerous irregular journeys to the EU.”

It’s not a call for blanket detention, said a Commission official, but a way to make full use of European legislation which allows irregular migrants to be detained for six months, and in some cases for 18 months. The official added that the move is to stop migrants disappearing while their claim is being processed.

In 2015, the number of irregular migrants ordered to leave the EU was 533,395, up from 470,080 in 2014, according to Commission figures. That figure could top 1 million once all outstanding asylum applications have been processed.”

Lock up migrants to stop them absconding, says Commission

[click to continue…]

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