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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Originally posted as a series of comments to Facebook after the general election in June 2017. Edited for clarity.

The binary choice of the referendum was a hard one. Many people told me that they understood my arguments regarding democratic deficits but they wouldn’t risk the economic impact of a No Deal Brexit. And it was a risk – I think we’ll end up joining the EEA but right now it’s not on the Cabinet agenda and we could still go crashing out.

But at the same time, the reason it was a risk and the reason that we ended up with that referendum when it was called by a Prime Minister who had lost control of his own backbenchers, was because the “vote Remain and we’ll reform the EU” weren’t in the slightest bit interested in talking about reform, let alone campaigning for it, before the referendum was called. Dominic Cummings, the Leave campaign manager who architected the £350m a year claim, got hammered on by bitter Remainers after he tweeted last week that it could still all go horribly wrong and that there were scenarios in which Brexit would not have been necessary because the EU reformed itself, but he was right. But who was going to make that happen? And who has itself to blame that it didn’t? It was never going to be diehard Tory back-benchers.

In what has to be a rare event in this political discourse of someone actually being honest and everyone telling him to shh and keep lying.

The Tories are going to mess this up. They’ve completely lost control of their own right wing and we ended up here at all David Cameron made a promise he never thought he would have to keep. They have, unsurprisingly, continued to mess it up since, culminating most recently in the failure of an election.

The only thing I’m surprised by is the sheer incompetence of the Tories to manage this. I know that there’s party politics to be played but seriously, the way the British negotiating team has been talking it’s like they’re not even reading the European press and how they’re coming across. I think they’re completely crazy to be still foot dragging over the divorce bill when really important things like the Irish border and the fate of resident EU nationals is vastly more important. I don’t know what they think they’re trying to achieve. I was expecting the Tories to fail because “we can tell Europe to get stuffed but still have all the nice things” was always a pipe dream, but this level of uncertainty this late in the game is really quite pathetic.

But at the end of the day, we live in a society ruled by capitalists and the capitalists are very unhappy that rampant populism has spun out of control and there’s a risk of an end to the four freedoms. We should not lose sight of the fact that the four freedoms of goods, capital, services and people were not introduced so working folks could take cheap holidays to Spain without a passport but because free movement of workers lowers business costs.

Jeremy Corbyn knows this and that’s why he’s always been a euroskeptic until his about-turn during the referendum campaign because that was bad politics for a leader of the Labour Party. He continued to dally over the issue but he’s always been outnumbered by the Remainers in the Cabinet. They have prevailed and it is now Labour Party policy that we should seek full and free access to the single market as a transitional period. There are now union campaigns for single market membership and other think-tanks producing papers, such as Nick Clegg’s new outfit, advocating this approach as well. Pressure is building. There is and always has been a majority in the House for single market membership, they just need to coordinate across parties to make a plan of action.

I don’t know how exactly this is going to play out but some potential scenarios in order of success: it becomes clear by the next round of Brexit negotiations that things are not going well. The pound is dropping and there’s no clear leadership, and people are really pissed off with Theresa May. She will probably face a leadership challenge after the next party conference. That leader will have to call an election given the disaster that occurred at the last one, and I suspect given the current winds across the world and the blinding campaign that Labour fought last time that Jeremy Corbyn will win. If he does and Labour gets into power, they will negotiate single market access for a “transitional period” and eventually that will become permanent because everyone will realise how kinda stupid it is not to keep going with it.

Alternatively, the negotiations could run into trouble and the Tories will be pressured by their business base to about-face. Again, Theresa May is removed as leader and a leader with a different approach is installed. They realise that the current plans are unworkable and again work to agree a transitional period of single market access, pacifying the Leave voters who wanted change and don’t really understand what the ECJ is but keeping the four freedoms. Again, the House majority and the Remain and soft Leave voters works to make that permanent and that occurs.

Alternatively, for lack of any game-changer, Theresa May stays in power and the negotiations grind on fruitlessly because the British side doesn’t really understand what it means to “negotiate” instead of just nervously fiddling with pieces of papers and saying “Brexit means Brexit” over and over again. We reach a point where it is no longer possible to achieve any deal in the remaining time before March 2019 and Theresa May is forced to agree to a transitional deal of EEA membership while a more permanent solution is found. She will not achieve this because the current government position is irreconcilable and everyone just wrings their hands until 2022 when Theresa May loses power in spectacular fashion, Labour gets into power and everyone is just so sick of the whole thing clogging up our political discourse we just stay in the EEA by default and everyone forgets much of whatever it was that we were even arguing over in 2016.

The EU is open to the idea of EEA membership, and even the UK government wobbled briefly on it’s commitment to ending freedom of movement:

“Still, officials in Brussels hope that once the reality of a “hard Brexit” — of which British manufacturers and industry associations already warn — comes closer, the U.K. might become open to the Norway option, at least as a temporary solution.

Such hopes have been spurred as the British government is backtracking from its earlier hardline stance on Brexit. Late last month, British Prime Minister Theresa May indicated that free movement of EU citizens post-Brexit could be permitted as both sides “implement” their future relationship. Foreign Secretary Boris Johnson last week opened up to allowing free movement for EU citizens after Brexit.

“Ideally I think it could be done, what with goodwill and imagination, it could be done,” Johnson told reporters in Athens, referring to free movement of EU nationals.”

In essence: leaving the single market makes no sense from a capitalist perspective, a liberal perspective, or from most of the socialist perspectives. The leave campaign won because of a populist narrative that captured the hearts and minds of a population primed by a right-wing media owned by nationalist conservatives who make all their money in the UK and have no interest in being able to trade across Europe. The champions of that populist narrative, UKIP, promptly collapsed at the very next election into oblivion and are currently a rump party in the process of being taken over by outright Islamophobes.

Everyone is now very tired of the whole thing, but the vast majority want to honour the outcome of the vote. The best of doing that is to leave the EU, to dump the federalism by stealth, the ever closer union towards a single European Army and currency, and stick with what Europe used to be and what we actually voted for in 1975: a free trading area between nation states who want to work together but also hate each other enough to keep state power divided and afraid of their voters.

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