Constitution 101

  1. Bloody hell, these remoaners are trying to thwart Brexit!

Yes. That is what happens when people disagree in a democracy. They keep explaining why they disagree, sometimes in court rooms if necessary. Brexit isn’t an inexorable, ineluctable force. It’s the outcome of a referendum, which was an opinion poll. Rather like phoning in to X-factor, but without the same legal force.

  1. But they’re trying to defeat the sovereign will of the people! The people have spoken! How dare these so-called judges….zzzz

The will of the people, in our great parliamentary democracy isn’t, wasn’t and hasn’t ever been sovereign. Two things have been held to be sovereign:

  1. The sovereign – that means the king or the queen. That was decided to be a bad idea about four hundred years ago, and they cut the then King’s head off as a result. There are still bits of the monarch’s powers which remain, (called the [Royal] Prerogative) and that’s partly what this argument is about.
  2. Please wake up and concentrate for five minutes. Parliament. Not ‘the government’, not ‘the people’, not ‘the people in charge’ in some vague and wafty way. Parliament. That means those boring people you couldn’t be arsed to vote for at the last election because you listened to Russell Brand, but whom other people did vote for and many of whom think Brexit is a bad idea. Plus, those other people who don’t get elected, but that isn’t any reason to get all worked up about either. Some of them are appointed and include people you’ve seen on the telly. Not all of them were appointed by Tony Blair or David Cameron. Parliament is sovereign, and can legislate how it wants about anything at all, including leaving the EU at once, never leaving it, and declaring the rest of the world to be part of the UK. But it’s parliament, not the government, the Prime minister, or the president or whatever other bizarre creatures people your understanding of the British constitution.
  3. These judges are unelected!

Yes, judges are unelected. That’s because they are meant to be apolitical. There is a convention of the British constitution that judges are not supposed to allow political considerations to get in the way of their considered opinions and decisions. Of course the judges concerned will have their own opinions about whether or not the UK should leave the EU. Read the long and considered judgment published today and say which bit of it is obviously biased against Brexit and say why.

It’s not impossible to have a constitution where judges are political creatures, like in the United States, but it wouldn’t obviously get you a different answer. Calling them ‘unelected’ is a pointless slur. As is this kind of character assassination.

  1. But wasn’t the point about Brexit to allow us to escape from these unelected Brussels bureaucrats?

That was what some people said, yes, but just because one group of people is unelected, and another group of people is unelected, doesn’t mean that there is any worthwhile equivalence between them. So what’s your point?

  1. There must be a revolution! If Brexit is thwarted, there should be a revolution!

The revolution, should it occur, would be a matter of lots of people who have been asked their opinion upon something, have given it, and having not had it granted, take to the streets. This would be no more justified than any other kind of large scale criminality – like say, the Poll Tax riots. There has been no interference with the constitution nor the way the country is governed. Many politicians and commentators have decided to take the view that if the majority (51.9%) of those voting on 23rd June believed that we should leave the EU, then that is what we should do, because there would be a danger of civil unrest or at least a degree of outrage, if that will were not put into action. That does not justify, nor give any constitutional strength to any such civil unrest.

  1. You’d want a revolution if May went ahead and invoked Article 50 though, wouldn’t you?

Not a revolution. The action should be struck down, and May should be impeached for exceeding her powers, certainly, though there’s no obvious mechanism for doing that. It’s called the rule of law. When the law says one thing, and people do something else, that’s a breach of the rule of law, and when governments start doing that, it’s generally a very, very bad thing. What’s her next unconstitutional act going to be? Increasing the period she can remain in power? Abolishing elections?

  1. There should be an election. She should call a snap election and consolidate her position. Corbyn would never get in anyway.

She can’t call an election. This is the bit I don’t get that people (Times leader writers at least) don’t get. The Coalition government passed into law (via Parliament, in the proper way) a statute called the Fixed Term Parliaments Act 2011. It’s a short, simple statute that says, in essence, the next election will take place on the 7 May 2020 unless either:

  1. Two thirds of parliament agree to an earlier date
  2. A motion of no confidence in the government is passed.

The first of these would be a tall order. Any party who thought they would lose out by the early election (all of them at the moment, probably) would vote against. Ask the Americans how easy it is to get a two thirds majority on even slightly limiting how many guns people can carry. The second is plain daft. ‘Elect me! You all agree I’m rubbish!’

  1. We didn’t know all this stuff! We should have a written constitution. It’s well overdue. Write it all down.

There are lots of books that explain it. That doesn’t mean it has to be written down itself. People who won’t read the simplest of texts about the constitution, whose eyes glaze over when they read the very word, and who just stamp ‘but democracy!’ as if it trumps everything, are very unlikely to read the complex legal document that it would inevitably be. Besides, who are you going to get to write it? Would they be the ‘founding parents’ of the new British constitution? Would you include all the stuff about the Queen? I bet all those Brexiteers would want to. And lots of those Remainers might not. You’d be opening more cans of worms than you would close, if you’ll excuse the rather ridiculous metaphor.

And how would you change it? By passing a simple law, just as can be done these days (as in 2009 when the House of Lords was replaced with the Supreme Court), or by requiring a larger majority? The European Communities Act 1972 was passed with a simple majority, and changed our constitution to allow ‘those unelected Brussels officials to decide upon our laws’. It can be repealed just as easily. But not without a vote in Parliament.

 Even if R (Miller) v Secretary of State for exiting the EU [2016] EWHC 2678 (Admin)  – yes that’s this case that’s been all over the papers today – had been decided differently, or gets overturned in the Supreme Court, and Article 50 gets ‘triggered’ upon the whim of the Prime Minister or her cabinet – more precisely, using the Royal Prerogative I mentioned back there, she still has to go to Parliament to get her Great Repeal Act passed. What if she is unsuccessful? Will the UK be stuck in a constitutional limbo, neither in, nor out of the EU, with all of the disadvantages, and none of the alleged advantages?

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