This is a great opportunity for me to disagree for once with George. I so rarely do. I am not sure a constitutional construction (any construction) can change a country from the impact of a charismatic adviser, if everyone magically falls in line. So what’s the problem?
First things first: I think it is legitimate to decide to leave the EU and what I write is not about this decision, but about the process, the how
The problem to me seems to be that a parliamentary system used an element of direct democracy: a fundamental constitutional decision was (in fact, not in law) delegated to the population, to be decided by simple majority.
This led to an implosion of the system: MPs, used to make up their own mind, now felt obliged to follow a fundamental decision made by others, even where it went against their conviction.
But the UK system does not provide for a follow-up. What now? Suddenly British political life became an exercise in exegesis: what does Brexit MEAN? Do we need to leave Euratom? The ECJ? Directive 1998/23? Is it Juncker we dislike? No more meetings with Merkel?
The reason for this is quite clear: the population, in any democratic system theoretically the highest authority, had spoken. So that decision was sacrosanct. Suddenly the UK constitution had two sacrosanct principles: supremacy of Parliament and Brexit.
One of the first Brexit conferences I have ever been to featured a famous UK constitutional law professor whose exegesis was that Brexit meant no ECJ, no EU law. Then as now I think that is fundamentally wrong, indeed fatally so.
But it is this element of direct democracy that has poisoned British politics. MPs do things against their own conviction. Instead of trying to find out what is the right solution, they argue with the true meaning of the referendum.
So the decision to leave the EU as such is not the problem, but the fact that the referendum decision has lived on, taken on other meanings and constitutional importance - that is what creates the problems in the process.
What is the logical consequence from that? I struggle with it. But I wonder: once we DO do direct democracy. Isn’t the only way out to do it consistently? Referenda decisions are sacrosanct, so only referenda can save us from the insecurity of constantly interpreting referenda?
