Barend Vlaardingerbroek: Brexit – so what? Now what?

The Europhile elite has been defeated. Great Britain shows Europe the way to the future and to liberation. It is now time for a fresh start, relying on our own efforts and sovereignty.- Geert Wilders, Dutch Freedom Party, 25 June

You could have knocked me over with a feather when I switched on the BBC the other day and heard that the UK had decided to leave the EU.

I had predicted a ‘Remain’ victory of around 57:43. I had told people around here that the British have long whinged, moaned, griped and bitched about the EU, but once push came to shove they would prefer the devil they knew and resign themselves to an eternity of whinging, moaning, griping and bitching, but never leave.

I was wrong but I am in good company – most pundits were predicting a ‘Remain’ victory.

 What swung it for the ‘Leave’ campaign? Numerous commentators have been saying that people voted with their hearts rather than their heads. From a hard-nosed economic point of view, there may be something in that – there will be some economic pain during what could be a lengthy transition process. But the two big issues that won the day for Brexit were immigration and national sovereignty.

The Brexit campaign was definitely helped by the illegal immigration crisis. While the UK has not exactly operated an open-door policy towards so-called refugees and asylum seekers as has Germany, the pressure was on to take more of these opportunists, and people were rattled by the presence of what they saw as hordes of illegals camping in Calais and stowing away on trucks to get across the Channel. But Brexit will not make any difference to the influx of illegal migrants into Europe and trying to make their way to the UK, for that issue starts at the borders of the continental EU particularly in Southern and Eastern Europe. Bear in mind that the UK was already exercising a lot more control over its borders than most EU member states and was not a party to the Schengen accord. Brexit may ease some of the pressure on the UK to take in more illegal migrants, but it won’t make much difference as the UK was already playing it reservedly in that regard.

Where Brexit will make a considerable difference is with regard to low-skilled labour coming into Britain. Foreign workers from ex-communist countries have been taking over the low-skilled end of the job market and there has been downward pressure on wages as a result.

Some Tories have been talking about devising a points system for selecting immigrants – two I have come across mentioned the Australian system as a model.

National sovereignty is an issue of the heart for some (“We’ve taken our country back,” one tearful Brexit supporter told reporters) but is also an issue of the head. A unique aspect of the English governmental system is the doctrine of the supremacy of Parliament, dating back to 1688. This created a huge problem when the UK placed itself under the jurisdiction of the EU legal colossus. The Factortame case – a case involving a direct clash between EU law and British law – saw the Law Lords ‘disapplying’ (when you’re really stuck, invent a new word!) British legislation, reasoning that they were in fact conforming to the will of Parliament (which no English court can buck) which must have been to abide by EU legislation. As Lord Laws said in a 2002 case, the European Communities Act was “a constitutional statute which could not be impliedly repealed” which in practice meant that EU law took precedence over domestic law which if in conflict had to be abrogated or modified. No wonder so many expert legal commentators claimed that the UK had surrendered its sovereignty.

The European systems do not have this problem as they do not abide by the doctrine of parliamentary supremacy – they have constitutional courts that can challenge primary legislation. (The Supreme Court of the UK can not do that – hence Lord Woolf’s lament that they had replaced “a first-class appeal court with a second-class supreme court” when the SCUK usurped the appellate function of the House of Lords.) For European parliamentary systems, adding yet another layer of authority above them was not the momentous big deal that it was for the British. It stuck in the crops of many Britons who will be pleased that this anomaly has now been put an end to.

What some ordinary people probably do not realise, however, is that Brexit will not change the relationship between the UK and the European Court of Human Rights (ECtHR), which is not an EU organ. The Human Rights Act 1998 which incorporates the European Convention on Human Rights and thereby imposes certain limitations on the ability of Westminster to legislate will not be affected by Brexit. But Brexit will encourage Conservatives who resent this particular intrusion on British sovereignty to renew their efforts to get the Act scrapped.

A looming constitutional issue arising from Brexit is posed by Scotland. The Scots voted 2:1 to remain in the EU. But Scotland, as part of the United Kingdom (a term that refers to the Union of Crowns of England and Scotland), can not retain its ties with the EU on its own. The stark choice for the Scots is full independence (which means there will be no more ‘United Kingdom’ and the Scots would, in theory, be able to re-establish their own monarchy) and EU membership, or to remain part of the union with England and thereby leave the EU alongside England. There is a remote possibility that special arrangements could be made for Scotland akin to the right of states in federal systems to come to certain arrangements with foreign national entities – there are precedents for this in international law but the UK is a ‘union state’ and not a federal entity. This is going to be a tough call and it will be very interesting to see which way that cookie crumbles.

Should Brexit lead to the break-up of the United Kingdom, this could have constitutional implications for NZ. Be assured that republican movements in NZ and Australia will capitalise on the demise of the UK and the accompanying change of status of the British (by then, strictly English) monarchy.

With Britain out of the EU, will she strengthen ties with other members of the Commonwealth of Nations? I, for one, doubt it. The good old Commonwealth is an anachronism – the largely impotent vestiges of the British Empire. We have all moved on.

Will there be a domino effect arising from Brexit? Nationalist parties on the Continent are already clamouring for their own referenda on exiting the EU. Marine le Pen wants a Frexit, Geert Wilders wants a Nexit, and they’re not the only ones.

Brexit has lit a fuse to a powderkeg of resentment and an acute sense of betrayal on the part of ‘ordinary’ people against the political establishment across Europe. The effects may not be confined to that continent. “They’ve taken their country back,” Donald Trump said from his resort in Scotland – a slogan that will appeal to many voters in the US.

“Is this the beginning of the end for the EU?” a BBC reporter asked Jean-Claude Juncker on Saturday. “No!” he replied curtly, then briskly marched off the podium. I have a funny feeling his gut was telling him otherwise.

Barend Vlaardingerbroek BA, BSc, BEdSt, PGDipLaws, MAppSc, PhD is associate professor of education at the American University of Beirut and is a regular commentator on social and political issues. Feedback welcome at bv00@aub.edu.lb