Brexit Litigation in the Court, and Brexit Litigation in the Court of Public Opinion

Every person has the capacity to act intelligently, to consider calmly and to do what is right, so long as they are equipped with the proper tools. The problem is that instead of comprehensive and investigatory news built on facts and a neutral eye, they have been fed shocking and angry tabloid headlines that pander to their basic animalistic predilections for protectionism and tribalism. Instead of being immersed in a culture of intellectualism and willingness to accept progressive change that might benefit them, despite it being alien and overwhelming, they are swaddled by the Kardashians and information within traditional parameters of what seems logical based on outdated notions that were only relevant to a world that has since changed. Instead of having had fostered for them a culture of involvement in civic duty and public discourse, and having responsibility for their society, they are removed and taught only to focus on what they can materially gain. They are bred on a culture of lethargy and apathy toward matters of Government based on ideas that nothing changes and the institutions of state do not represent them, that they are something distinct from the people themselves, when in reality, removing this perception would remove this problem, since the people would realise they can be as involved as they like and they do form an important part of their society.

So, when suddenly a matter of extreme constitutional importance, a matter that affects the future of global geo-political relations, that affects humanity’s culture and the next steps that we take, is thrust upon them, they react as only they could be expected to, having been bottle fed on nonsense and lies and having had their knee-jerk, archaic instincts pandered to. The people have been bred in a culture that wilfully allows them to retreat to comfort and ignorance.

When David Cameron announced that the people would have a direct say over Britain’s membership of the EU, he was not affected by an unusual desire to empower the British people. He was affected by panic over losing power with the rise of UKIP and right wing populism generally. He was affected by fear of the oncoming shift in the political status-quo that he could see on the horizon. He was scared that neoliberalism and globalisation would soon be undermined by the will of the people. And instead of combatting populism, which is an erroneous, knee-jerk and uninformed solution to undeniable problems surrounding immigration specifically, and globalisation generally, as well as the lack of democracy in global institutions, he pandered to it. He chose the tactic of the East German Soviet government, to attempt to appease the people with the illusion of control, hoping that they would then shut up and sit down. But, as in East Germany, it only meant that they grasped the opportunity and rode the wave until it crashed down around their superiors. Because deep down the people know that they want control over their destinies. They simply have not been equipped with the right tools to exercise it with the requisite foresight and understanding.

The people voted to leave, and they expected to leave. They did not expect that their decision would be reviewed by the High Court in the first instance, and now the Supreme Court on appeal. And so we find the first example of the disparity between the law, and the law as reported by the media and by manipulative campaigns. The referendum took place pursuant to the European Union Referendum Act 2015, which the High Court reiterated does not confer a statutory power (as does no other piece of legislation) to give notice of withdrawal from the EU under Article 50 of the Treaty on European Union. This is not what the people thought. The literature disseminated by the Government of the day told them that their say was final. The decision was reported by the media as one that would be final.

The media, especially the British tabloids, instead of telling the people the true state of the law and the true position of the referendum – never mind giving them a true account of the specificities and complexities of either side of the argument – pandered to their flag-boners and to illusive, chimerical notions of abstract control and tribalism, which in any real sense no longer exist. In doing so, once the decision of the High Court had been handed down, the Daily Mail, the Express and the Sun et al. had set the tone to be able wantonly and without consequence or shame to brand the judges as traitors to their country and usurpers of democracy. The irony is that in actual fact the journalists, owners and editors of these papers are the true traitors to their country and to their countrymen, and their publications actively and maliciously undermine the proper exercise of democracy.

The judges in the High Court, far from deciding on the merits or demerits of Brexit, were deciding on the proper, lawful process according to the British constitution by which it should be brought about. That is, they were deciding whether the Government could ‘trigger’ Article 50 unilaterally using the Queen’s prerogative or whether Parliament is required to vote on the matter. The second irony, then, is that in condemning the judges for deciding that Parliament needs to vote, the papers were impliedly supporting the use of a monarch’s undemocratic executive power and rejecting parliamentary sovereignty, which is the very thing that was being voted for in voting to leave the EU.

The Brexit litigation was reported as if the judges were deciding on Brexit. The legal issues were not communicated properly to the people. You have been lied to from the very start of this referendum by the institutions who owe you a duty to equip you with ample and correct informational tools to be able to form a constructive and responsible part of this society.

The tabloids’ treatment of the Brexit litigation goes far beyond issues of shoddy journalism. It strikes at the very heart of our political and legal structures. The law is given legitimacy through consent. We all impliedly, by not revolting, consent to the legal structures in place and the laws that mediate our social relations. This is important because without consent a legal and political system is not legitimate and it then has one of two recourses. One, it breaks up at the behest of the people and a new system is formed. Two, and far more likely, those responsible for its continuation and who benefit from that continuation use coercion to keep it in place. Behind every law and every institution of state is the inference of force. That is what gives a Government made up of thousands of people power over millions of people. And this is fine, since for the most part we all impliedly agree that the legal system, the constitution and the political framework work in our favour and that their use of force will be legitimate because it will only be used in the event of someone or something breaching the social contract, and that it will be used for the good of the majority.

Therefore, when we get to a state of affairs in which an unrestrained media can demonise members of the most evolved judiciary on the planet and undermine their very position as arbiters of the law and checks on Government power by deliberately mis-communicating that law and said judiciary’s actions, we risk a breakdown in the social contract and the consent by which we are all governed.

Rest assured, the judiciary is exercising its constitutional duty. It is deliberating on the law and on the law alone. It is not deciding whether Brexit should happen. At the very worst it is deciding whether Parliament should decide whether Brexit should happen. And Parliament is made up of MPs who are your representatives, who you elected. Do not take my word for it though, read the summary of the case in the High Court. Before you take a position on the basis of the propagation of massive media corporations, think to yourself firstly, why are they shouting so loudly? It is always the case that those who shout loudest are either the weakest or the most scared. The media is both, because the people are the ones with ultimate power; all you have to do is equip yourself.

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You Can’t be Trusted with Democracy

Pure, direct democracy is an unfeasible and unattainable aim.

 

The people have proved they simply cannot be trusted with it.

 

Like a big fat baby gurgling lumpy phlegm they throw the right across the room like a rattle in a fit of tantrum, not realising that the vote actually means something, that the rattle is made of titanium and can crack the wall.

 

Of course, the people could be trusted with direct democracy if they were properly informed. Perhaps they could make educated and tempered decisions en masse; perhaps national conversations would be possible without resorting to slogans and clumsy statistics recited into oblivion until the breath that gives utterance to them forms a giant swirling vortex and all forms of intelligence and knowledge are sucked down into it and we forget what thinking even is. Perhaps we could have a population all on the same page as to the best path for humanity to take.

 

But who has the time to get properly informed, to gain a comprehensive and explorative understanding of any given issue, let alone all of them? You do not have the time. And nor should you be expected to make the time. The majority of us were not put on this earth to contemplate philosophical, ideological or pragmatic ramifications of policy. We elect representatives because they do have the time; it is literally their job to be properly informed, to cut behind the media’s bullshit, behind misinformation and misunderstanding; to gain a broad and overarching view.

 

People want to enjoy their lives. They want to finish work and be allowed to zone out, to relish in their leisure time. They do not and, if the system was well, would not, be obligated to be as informed on matters of complex policy as politicians are so as to become de facto captains of our collective ship.

 

Of course, it could be that we enact ample media regulation, for instance, or campaign regulation, so that the people are well enough informed (because those informing them are prohibited under pain of penalty from misinforming them) so that they are theoretically capable of making the decisions required of them in a pure democracy – their personal prejudices notwithstanding (or made irrelevant through enlightenment).

 

The print media in the UK, for instance, is – you may be surprised to know (or not, having seen the bottom feeding content of the tabloids) – entirely self-regulating. It has established Independent Press Standards Commission of its own volition. The only sanction if a consumer complaint is deemed valid? That the paper publish the PCC’s finding, and/or a fine.

 

But of course, regulation of the media is a slippery slope. Even when proposals seem wholly for good, one must always question the loopholes they may give rise to for the regulators and the regulators’ influencers, and the motivations of those drawing up the laws. Perhaps statutory regulation would give rise to a maelstrom of complications.

 

So then, media regulation is without doubt a dire necessity. The abhorrent, despicable, retrograde, embarrassing, childish, stupid front-page reactions to the High Court Brexit litigation by the Daily Mail et al shows this. And so too is campaign regulation a necessity. The abomination of the £350 million lie, and how it went unchallenged until recently when a complaint was made to the Crown Prosecution Service under the Representation of the People Act 1983 (now it is too late) proves this. Although both are necessary, neither can be as comprehensive as each of us in our personal inclinations would perhaps wish them to be. Since thereafter bias has the potential to follow.

 

One may say the internet means that a universe of information has been opened up to us. We can draw one story from Breitbart, another from the Guardian, and yet another from Buzzfeed and we can be ensured that we are chewing on all sides of the fat. But unfortunately that just does not happen. The people cannot be trusted. They plop themselves in their echo chambers and scream and delight in hearing their intonations crash back to them a million times louder.

 

We must entrust policy and major decisions to representatives. But this comes with the crucial caveat that those representatives be accountable more so than they are now. To us. As it is meant to be. We decide the ideology we want our species to represent and we ensure that the policies of our governments are dictated within the boundaries of said ideology through the use and utilisation of proper laws, checks, balances and regulation.

 

Our representatives cannot, as a prerequisite, be allowed to be influenced by self-interested lobbyists or bloated financial or corporate interests.

 

MPs expenses, lobbying transparency and limitation, backroom trade deals like TTIP, MPs’ employment before and after Parliament, and campaign funding are all particular flashpoints of the battle over this dearth of regulation. But there are many others, all in need of tightening and reforming as part of a bolstering of the girders of our great political and legal system.

 

A representative democracy – as would a pure democracy – also necessitates fostering a culture of intellectualism. It means bridging the gap between the academy and the builder, between scholars and scaffolders; thinks tanks and warehouse workers. I call bullshit on the claim that the British people are tired of experts. What the British people are tired of is condescension. What people everywhere are tired of is condescension. And if 2016 has taught us anything, it is that condescension breeds populism, which rises like the perennial serpent to bite us all in the ass.

 

So no, the people cannot be trusted with pure, direct democracy.

 

But this is not to despair. This is not to render you an impotent observer watching in conscious paralysis as your betters carve up your beating cadaver. For a representative democracy comes with a crucial benefit. It means that you may holler and scream in favour of the cause you promote through whatever medium you choose in the hope people flock to you and the government hears, and when they do, you are absolved of the responsibility of making it work. It is up to them. They are your representatives; they must represent your interests.

 

So, if you reject being detached from democracy like this, then there are routes in to the fray for those so inclined. You need not run for Parliament.

 

You could write, for instance. Write and disseminate your views.

 

That is how policy should and usually is made. First the people stir; then the intellectuals write about the opinions and examine them, validate them if they are deserved of validation; then the active sea change occurs within the ranks of the population and opinion shifts and then, finally, the politicians enact the people’s will if it is sensible and has passed through the various filters and, fundamentally, they are pressured enough.

 

Take gay marriage for instance. The LGBTQ community owes no debt of gratitude to Cameron’s government for legalising it. Nor are any of the companies now cynically promoting LGBTQ rights as if they did all along deserved of congratulation. All they did was rubberstamp something the people had already decided amongst themselves. That is one of the government’s jobs. They are the final filter, the final legitimating force – legitimate themselves only because we trust that they will act as such.

 

Life is about balance. Populism belies that balance. Populism is a reaction to a detached political class and to gross inequality. But, though understandable – we are human after all – it is the wrong reaction. What is required is considered, informed, unified pressure on our representatives. This itself is dependent on a reformed system, which we can only achieve through revolution. A system built so that checks and balances are better placed. We cannot rid ourselves of representatives; they are what ensure our civilization.

 

Representative democracy also comes with a duty, because no checks and no balances are without corners around which psychopathic politicians can peer to find the boundless freedom of corruption beyond. This duty is eternal vigilance. It was said that every generation must have its revolution. This is the price we pay.

 

The necessity for representative democracy, as oppose to populism or direct rule by the many, is that if done properly, it makes ignorant reactionism impossible. Because policy is dictated by ideology arrived at by the process above mentioned, rather than ideology being an unfortunate concomitant of policies arrived at as knee jerk reactions by the majority, it means that a solid foundation is built from which to construct policy and sensible, informed decisions in response to contemporary issues.

 

Plato, after all, said that “Dictatorship naturally arises out of democracy, and the most aggravated form of tyranny and slavery out of the most extreme liberty”. Looking at the blonde-haired demagogue who got so popular so recently, and the state of discourse on our Emerald Isle after a vote, essentially, for isolationism, I would be inclined to agree with him.

 

Balance must be restored through understanding and being informed. Not despite being human, but exactly because we are human – the most intelligent and adaptable species we know of.

 

I urge you to get involved in one aspect or another, whether activism or contribution to the intellectual ether. And if you do not want to, then that is exactly why you cannot be trusted with direct democracy, and that is fine.