There was a time, before the UK voted to leave the European Union, before a referendum posing that question was even planned, when Tory Eurosceptics fixated on parliamentary sovereignty.
They argued that the 1972 Communities Act subordinated UK statute to European law in ways that violated national autonomy. From that initial grievance flowed the long lament about “Brussels” as a hostile power, imposing alien ideas and burdensome bureaucracy on a captive people. That grudge evolved into a culture war against liberal internationalism, made pungent with acute anxiety about immigration. On those terms, far more than the original arguments about sovereignty, was a majority vote for Brexit secured.
But next week, when the EU withdrawal bill has its second reading, Euroscepticism goes back to its roots. The bill pulls up the 1972 EU membership foundation-stone act (which is why it was first conceived as a “great repeal bill”). Paradoxically, that symbolic reclamation of sovereignty requires a vast copy-and-paste exercise, as a mass of European law must be naturalised as British statute. Without that transplant, the moment of Brexit would create intolerable legal gaps and ambiguities. A generation of established practice and precedent would be vaporised.
The withdrawal bill also creates procedures for the subsequent amendment, repeal and rewriting of what will be known as “retained” EU law. And it is here that the lure of Brexit and the principle of parliamentary sovereignty collide, because the mechanism that the government proposes for efficient sifting and pruning of “retained” law is a colossal affront to the legislature.
The contentious device is the deployment of “Henry VIII powers”, so called because they recall that monarch’s impatience with parliamentary restraint and desire to make law by decree. The withdrawal bill envisages Brexit-related statutory reconfiguration being done by “regulations”, most of which will be subject to the “negative procedure” of affirmation. That jargon conceals a process that amounts to ministers (or, as likely, their civil servants) writing laws that are only examined by parliament if an annulment motion is tabled in time. Otherwise they bypass scrutiny altogether and take effect automatically.
Some regulations will require “positive” affirmation – approval by a majority vote – but that process, allowing no amendments, is no substitute for proper debate.
In other words, if the withdrawal bill passes as drafted, countless technical applications of Brexit – regarding everything from workers’ protections to trading standards and environmental safeguards – are practically confiscated from the Commons. MPs would be surrendering the power to shape Britain’s post-EU legal architecture. They would retain a notional veto, but the exercise of that blunt instrument would require an inordinate application of forensic diligence, monitoring the flow of opaquely worded regulations, decrypting the ministerial intent behind them and, within a tight time limit, mobilising opposition. In practice, “delegated legislation” is very rarely voted down precisely because the system exists for maximum executive convenience and to bypass meddlesome lawmakers. In the past, convention has dictated that it be reserved for uncontroversial matters. A revolutionary overhaul of UK law does not fit that template.
The government’s one concession to anyone made queasy by Henry VIII powers is a sunset clause. The scope to make new regulations would expire two years after the formal day of departure from the EU. That date is not stipulated in the bill. More to the point, two years (plus a run-up period between royal assent for the withdrawal bill and Brexit day) would be ample time for a sweeping power to be misused. Such a time limit would be a bogus compensation for MPs who would, meanwhile, languish in a state of vastly diminished authority and credibility – an abject condition that would permanently dent parliament’s reputation.
For those who value Britain’s historic ties to the EU there is plenty to hate about current government policy. The unique achievement of the withdrawal bill is that it should be despicable also in the eyes of Eurosceptics. It tramples on parliament’s supremacy even in the act of pretending to restore its sovereignty. It is badly drafted with cynical intent and corrosive contempt for the checks and balances that uphold British democracy. MPs must amend it to restore their rights and protect their dignity and defeat it if the government will not yield.
