George Letsas on Brexit

…It is disappointing that the Supreme Court reverted to the archaic notion of parliamentary sovereignty in the Miller judgment…

…But the real constitutional issue is not who gets to cancel the individual rights flowing from EU membership (Parliament or the executive), but whether these rights can be extinguished overnight. The Supreme Court judgment assumes that Parliament can do away with all such rights, make or unmake any law. But no political decision, not even a referendum, can do away with rule of law principles, such as protecting legitimate expectations and respecting the right to family and private life. Consider the case of the EU citizens who have made their lives in the UK and Britons who have made their lives elsewhere in the EU. Deporting someone on the basis of their nationality, when they have lawfully made their life in a country on the explicit understanding that they were entitled to permanent residence, would strike at the heart of the rule of law. Taking such rights away with no justification other than the outcome of a plebiscite may have a place in fascist and authoritarian regimes, but not in a constitutional democracy. Nobody may lawfully expel an EU citizen who has made their life in Britain, not even Parliament…

…Arguments based on ‘what the people want’ are not only irrelevant in a democracy, but also ontologically spurious. Nothing can be revealed about what the people want in a process that serves a different function, that of constructing the vision of justice that should govern our polity. Winning a vote doesn’t mean no more argument is needed. Citizens are best viewed as participants, together with the three branches of government, in a complex process aimed at selecting, specifying and implementing particular conceptions of justice. As Ronald Dworkin observed, the ultimate basis of legitimacy is the substance of the principles of justice that underpin our laws, and over which no institutional actor, not even the electorate, has absolute control…

… Arguments based on the line that this is ‘what the people voted for’ are politically suspect. The political strategy of invoking the will of the people as a way of avoiding having to justify a decision, both before and after elections, captures the essence of the term populism. Populism should not be understood as an appeal to the emotions of the electorate and to rhetoric capable of mobilising large numbers of voters. Rather, it is the deliberate attempt to bypass the normal channels of representative democracy, and the institutional checks and balances it imposes, by invoking as the sole justification for political action the nebulous concept of what the majority of the people want, or what they voted for in the most recent election…

London Review of Books Vol. 39 No. 6 / 16 March 2017

Full article here: ‘Brexit and the Constitution’

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Author: bsadceramics

Course leader, MA Ceramics Bath School of Art & Design

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