Thom Brooks / Oct 2016
The public is right to be confused about what their government is doing about this constitutional crisis. During the EU referendum, there were multiple voices making different claims about Brexit means. Parliament would regain its sovereignty from Europe, Britain would control borders using a points-based system and the NHS would receive £350 million per week were only three of the big promises made to voters.
Each of these promises is unravelling. Within 24 hours, Brexit campaigners denied there would be extra funding for the NHS – even those who had spent weeks in a bus promising the controversial £350 million per week figure most critics claimed would not materialize. These critics have been proven right.
Next came immigration. Theresa May has given little away about what Brexit Britain’s immigration policy will be – but she did make clear what it is not when she ruled out a points-based system. If Britain is to ‘take back control’, then it will not be doing probably the one thing that about every pro-Brexit voter wanted.
The decision against a points-based system took me by surprise. I’m originally from the United States. I came to Britain in 2001 and later had to satisfy the points-based immigration system already in place now for several years for non-EU migrants like me. There is no such system to launch or create from scratch – it is up and running.
I know a thing or two about immigration. I’m a law professor specializing in immigration policy, but I am also a British citizen – and received my naturalization when Theresa May was Home Secretary with a welcome letter from her. She should know how immigration works too. If a points-based system with a cap worked for migrants like me, then why can’t it work for others as well? Or is there another explanation?
This is where the third promise about Parliament reclaiming its sovereignty from Brussels comes in. Most Brexit voters wanted Parliament to have its powers back – and sovereignty was the big motivating campaign issue. To leave the EU, Parliament must remove the European Communities Act 1972 from its statutes. Abolishing an Act of Parliament is not in the gift of any minister – even the Prime Minister. And as about every lawyer will tell you. Every lawyer, that is, except the Prime Minister’s.
Theresa May has said that she will trigger Article 50 starting the road to Brexit in two years or less no later than the end of March 2017. She believes that she has the (prerogative) power to do this – although this is disputed by quite literally every lawyer I have spoken to whatever their politics.
On the one hand, this could be seen as an extraordinary act. The Prime Minister moving quickly to start a process before she or anyone else knows how it will end up. She can claim some veneer of democracy – the public did vote for leaving the EU, but did not give consent to any plan or manifesto for it. This is all a veneer because no one voted for a government led by May either – and a referendum is legally advisory, but does not change the law.
On the other hand, this is very much a richly, political act. In moving against an unrealistic timetable, this will hasten a judgement by the courts that may stop the government in its tracks and require that they seek Parliament’s approval. If this means postponing beyond March, then May can claim that she’s on the people’s side and don’t blame her if ‘the plan’ doesn’t happen. And I strongly suspect – still – that it won’t.
May’s decision to make Boris Johnson the Foreign Secretary led to gasps and amazement, but I thought it a brilliant strategic move for ensuring Brexit means something less than Brexit. Who better than a lead campaigner for Leave to tell the country what Brexit – at last – really does mean? The many fabulous trade deals with America, China, Australia and others have thus far come to nothing. No one is talking until after the UK is out and the terms and conditions for trade are known.
And there is a sizeable legal mess to wade through in addition to trade deals with the EU and the rest of the world. Some estimate 17,000 or more rules to divide into laws worth keeping as is, laws worth reforming and laws worth nothing that could take many years to fix.
With nothing to show – not even a definition for what Brexit “means” – May has put her hopes on the courts doing the right thing and requiring Parliament’s consent which could deflect criticism from her to it. May is also banking on it being Boris – and not her – that will have to look straight at the cameras and claim Brexit is something different than heard on the campaign trail.
So will Brexit happen? Something called Brexit might – but probably not what most will expect.