On the 5th of December, The UK Supreme Court will sit and discuss legal issues around the decision to trigger article 50, and start the process of leaving the European Union.
It's not just about Brexit.
This could have implications for the role of the government, parliament, the crown prerogative, and all referendums in the future. This isn't just about if or how Brexit should proceed. This is about the relationships between the basic power structures in our society, why it is organised the way it is, and who takes dominance in such situations.
It's really important, and we should be talking about it more. Not just about Brexit, but about the constitutional issues surrounding Brexit.
It's easy to fall into the argument when discussing political mandates, that a referendum tops all, because it is the purest indicatation we have of the "will of the people", but while a valid statement, it is undoubtedly overly simplistic.
Any democracy is only as valid as the information people are given on which they decide how to vote. Suggesting referendums top all, is putting a massive amount of power into the hands of just a few unelected media moguls.
The politicians mandate comes from the people they represent, but when suggesting a referendum automatically tops parliament, we are in effect suggesting the mob can dictate to the supposedly intelligent and educated who we have elected to lead us. We need to ensure balance in such areas. If we're going to over-rule our elected leaders, it should take significantly more than half of us to do it.
Accepted our politicians don't always appear more intelligent, but we would certainly hope they are at least better informed and closer to the hub of the issues than the general popualtion, given that "like. it's their job and everything."
But in every argument we make we should seek balance, and the balancing argument here is that we give every person in the nation a vote for a reason (allowing for age and some other issues such as criminality). While some might suggest we should undergo an IQ test prior to being allowed into the voting booth, we don't do that, and for a very good reason, because giving only the most educated and intelligent the right to vote puts the lesser educated into a position where they are forced to resort to violence rather than the ballot box to resolve their grievances. If you don't understand this, then maybe you fall into the category of not being bright enough to vote?
I'm just saying. Don't shoot the messenger.
There has been much confusion and speculation amongst those who prefer to remain in the EU, about the reasons why so many voted for Brexit, because there are some pretty obvious arguments why it's not in anybody's self interests to want to leave :
So why did they vote to leave? There must be a reason. To paraphrase from 1996's Trainspotting "Otherwise they wouldn't do it. After all, they're not fucking stupid. At least, they're not that fucking stupid."
We must consider that not everybody who voted to leave the EU did so because they fell hook line and sinker for the blatant lies in the Brexit campaign message, any more than everyone who voted Remain did so because they believed everything coming out of Cameron or Osbourne's various orify.
I'm far from the first to observe that the results of the Brexit referendum, as with the results of the recent US election, are very likely largely a reaction by those on the butt end of society, who are simply using their vote to object to “business as usual”. But I think I might be amongst the first in the general population (i.e. who isn't a lawyer) to suggest that we should be having a very serious conversation about the constitutional implications of this.
Some people think the UK doesn't have a constitution, but we do, it simply isn't all written down in one place, and takes the better part of a law degree to understand it.
There are arguments for and against a written constitution, The arguments for are essentially simple. Putting it all in one place makes it easier to understand. The arguments against can be summed up in saying that by not writing it down all in one place, it gives us greater flexibility when approaching constitutional issues, while still having some reasonably consistent guidance on how to approach matters.
To some degree, as long as we are signed up to the European Convention on Human Rights (ECHR) we have the best of both worlds. However, as we approach a situation where we may well not be, as Theresa May has expressed a desire to withdraw from the ECHR, we might be concerned about the lack of understanding in the nation of how our constitution works.
On the 5th of December 2016, the Supreme Court will sit and decide how Brexit should proceed. We don't have a written constitution, which means that while this decision will be based on much well reasoned and well founded tradition, to some extent, this decision is still flexible. The decision made now could add to that pool of well reasoned and well founded traditions, or we could just try and force something through that agrees with our position on Brexit.
Based on that I would say there are two major issues here, one that favours either side, and the second of them is exceptionally important:
So the constitutional implications of the decision that's about to be made, are actually quite staggering.
And if we want to ensure that this doesn't happen again, we need to make it a constitutional obligation upon the government, that it provides for the essential well being of all within society, rather than leaving such things to the whims of market forces. Because when the markets get it so utterly wrong, as they did with the 2008 banking crisis, the poorest in society should not be left seeking perfectly justified democratic vandalism.
Our politicians are currently trying to avert a constitution crisis, by accepting the result of current democratic votes (both in the U.K. and the U.S.A.), but I would suggest that they cannot avert a constitutional crisis by doing this. We have a constitutional crisis whether they go along with the result of the vote or not, because if our politicians are accepting people's democratic right to smash the system up, to avoid having to face the fundamental issues at the heart of society, then how can that government claim any legitimacy, as part of a democratic parliament or otherwise? If the government is to claim any legitimacy, it must accept a constitutional obligation to ensure the basic welfare of all of it's citizens.
And if we as a people don't enforce that on our governments, we are going to keep having votes like these, and democracy itself will fall.
It could be argued democracy has already fallen, and we are actually involved in a race to catch it.