Decoding BREXIT

Man, the BREXIT mess is, well, getting messier:

Theresa May's voice cracked today as she warned MPs that Brexit 'could be lost' forever as her hopes of winning tonight's 'last chance' vote were devastated by Tory Brexiteers and the DUP abandoning her renegotiated deal. 

The Prime Minister was supported in the Commons by her husband Philip, who was watching his wife from the public gallery, as her deal appeared on the verge of a fatal collapse despite her warning rebels that Britain may never leave the EU. 

Mrs May, who is losing her voice after her late night rescue mission to Strasbourg last night, said: 'A lot of focus has been on the legal changes - but if this vote does not pass Brexit could be lost'.

This last bit made me sit up.  Legal challenges?  What's the deal there?

You see, unlike here in the US of A, Great Britain has an unwritten constitution.  Steven den Beste wrote about this almost twenty years ago:

Part of the difference in opinion, especially between the US and the UK, comes from the difference of having a real constitution, set out directly in words, which describes how the game is played. We've got that and it's served us damned well for more than 200 years. It's been amended many times (and it is a tribute to the wisdom of the Framers that they included an amendment process) but at its deepest level there was a great deal of wisdom in it. It's written on paper but it has power in this country as if it were etched in steel. We have things like our right of free expression not merely because the government sees fit to let us use it, but because it's written in that steel and the government cannot take it away even if it wants to try to do so. 

In the UK, there is no constitution as such. No-one in the UK actually has any rights, in the sense that we in the US use the term. There's centuries of common practice and precedent, but Parliament can override that at any time. We have a hard right of free press; in the UK, Parliament can revoke that (and has, in fact, partially done so in the last fifteen years). We have a constitutional right to not be held in jail without being charged for a crime; in the UK the government has the ability to lock up anyone it wants any time it wants for as long as it wants without even saying why. 

It doesn't do so; the government in the UK doesn't generally abuse this. But it could and would be completely legal doing so.

So why the "legal problem"?  British Subjects don't have any rights other than those which Parliament chooses to recognize at the time.  Why not just pass the thing and damn the torpedoes?  And here we get to the heart of the matter: we're not talking about the citizen's rights, we're talking about Parliament's rights.

Parliamentary Supremacy is really the heart of the matter, and is at the core of how the UK political system works:

The doctrine of parliamentary supremacy may be summarized in three points:

• Parliament can make laws concerning anything.
• No Parliament can bind a future parliament (that is, it cannot pass a law that cannot be changed or reversed by a future Parliament).
• A valid Act of Parliament cannot be questioned by the court. Parliament is the supreme lawmaker.

It's that second bullet point that matters here.  Unlike in the good ol' US of A where a treaty becomes essentially on the same legal standing as part of our Constitution (once signed by the President and ratified by the Senate), a treaty in the UK is just another act of Parliament (remember, there isn't a separation of powers there, not like here).  If you can vote for it today, a future Parliament can vote it away.

The EU seems to be asking the UK for something that Parliament simply can't (or won't) do.  Suddenly, the UK finds itself in the position that the US has been in for a long time.  As den Beste explained:

There is a perception in the US that Europe takes the concept of "team player" to an extreme, where it becomes an end in itself instead of a means to an end.
But more to the point is that Europe has been using pressure on the US to be a "team player" as a way of subverting the Constitution. Most of the treaties and agreements that the Bush Administration has rejected (and been castigated for) could not have been enforced in the US without infringing our constitutional rights. 

For example, the biological warfare convention required that inspectors be able to go anywhere and look at anything they wanted without warning. That's a violation of the Fourth Amendment; the government of the US does NOT have the right to make speculative searches. No way, no how. With that provision, the US could not sign that agreement.

Welcome to the party, pal.  No UK government is going to do what the EU is demanding.  And so the smart money seems to be betting that Prime Minister May will ask the EU for an extension, which the EU will refuse.  The reason for that is that the UK is going to leave the EU, and EU elections are coming up next month or so - the last thing that the EU wants is a bunch of Euro-skeptic MPs voting against, well, everything in Strasbourg.

And so the "hard BREXIT" date will hit next week or the week after, and things will be a mess for a while until everyone sorts things out.  It would be too damaging on both the UK and EU economies to not sort things out, even if the politicians hate each other.