by Frederick Cowell

Sometimes metaphor’s are over cooked – the repeated reference to the 1972 European Communities Act as a ‘conduit pipe’ in the Supreme Court judgement in the recent case brought by Gina Miller being one. But sometimes metaphors are apt none more so than the blank cheque metaphor being used about the current Brexit Bill. The problem with a blank cheque is once you have signed it and handed it over the other party is free to fill in whatever they like into the amount box. To strain the metaphor still further; that Parliament has to ‘pay’ and deliver Brexit is not at issue – that has to be done to respect the referendum result. The question of what and how you ‘pay’ is however at issue and is what Labour should be addressing at the moment.

The Bill is very simple – just two clauses – but its brevity belies its significance. It represents one of the most significant retrenchments of executive power in recent years. The Supreme Court judgment in Miller revolved around the capacity of executive power – called in the British Constitution the Royal Prerogative. The government’s contention was that they should have the power to activate Article 50 without parliamentary control. The technicalities of the way that the 1972 Act was enacted and subsequent treaties meant the government were not entitled to use the Royal Prerogative to initiate the process of leaving the EU. They needed to get Parliamentary legislation instead.

What could have turned into an opportunity to – borrowing Keir Starmer’s phrase – to legislate for the 100% rather than the 52% or 48% has basically turned into a government power grab. The un-amended version of the Bill simply provides a framework for the government to do what it wants regarding Brexit. All of the negotiations will be conducted using the Royal Prerogative for foreign affairs which is notoriously difficult to scrutinise, does not have to be authorised by Parliament and is notoriously difficult to review in the courts. In short there is no real parliamentary control until 2019. Then a vote will be given two things.

Firstly the final Brexit deal with the EU (if there is one) but this vote is a formality – even if the deal is appalling there will be no chance to amend it, as that would require it to be cleared through the EU institutions and member states. A piece of legislation might not even be required here as this would simply be the ratification of a treaty, which does not technically need an act of Parliament. Any attempt to reject it would be basically impossible as by 2019 the UK would be required to ‘take what it can get’. Full exit would be just days away and something would be need to replace the EU’s international legal framework otherwise the markets would be in free fall and the UK would be plunged into an economic crisis.

Secondly there will be the vote on the exit cost which would need to be authorised like any other budget item by Parliament. This could be in excess of £60 billion, which would be around half the Schools budget for 2019, or over a third of NHS spending.

So far Stephen Bush of the New Statesman is the only journalist to cotton onto how big a deal this is – it would balloon the deficit and could lead to far reaching austerity. Again there would be no real chance of opposing this as it would basically scupper the exit deal.

That would be the extent of any future Parliament scrutiny and control. Those voting for the Bill but promising future robust Parliamentary control or scrutiny about how Brexit is being delivered really need to explain what they mean. This Bill doesn’t deliver any such opportunity. Then there are the questions that still have not been answered.

For example the ‘Dublin’ case still needs to be heard at the Court of Justice of the European Union testing whether once activated Article 50 is revocable. Scholarly opinion is split on this question with strong views both ways. Although there are no signs of a clear majority in favour of reversing the referendum result this could change in the light of another unanswered question. We have no idea yet if alongside exit talks a full trade deal with the fullest possible single market access can be negotiated.

If in March 2019 there is no trade deal and the UK has to reapply for WTO membership revoking a notification to re-issue it a later date might be a useful option. Additionally there are genuine questions as to whether leaving the EU automatically means leaving the single market – which if it does there may need to be a separate notification and another separate process.

What a Tory delivered Brexit consists of almost doesn’t matter – Labour are voting to approve a measure that allows them to do whatever they like for the next two years. The reason for this given by those following the three-line whip is that they have to follow the will of the referendum and activate Article 50. This conflates respecting the referendum and authorising a Tory government to do whatever it likes.

The failure to explain the difference between the two reflects a failure of political communication on the part of the Labour party not a fait accompli of the referendum’s structure or constitutional law.  Bouncing us into a March timetable is the Prime Minister’s decision to deliver Brexit on her terms at which point Labour needs to ask – given everything else she has done how much do you actually trust Theresa May to deliver a Brexit that works for the people Labour represents?

Some have tried to turn this into a noble cause arguing that they will try and amend the Bill but won’t vote against it if the amendments fall.  This risks setting out the conditions for surrender before the battle is even fought. The distinction Matthew Pennycook draws (in an otherwise well argued blog) between a May government delivering Brexit with an 11 seat majority and a May government after a snap election delivering Brexit with a 51 seat majority is meaningless in terms of Brexit; the Bill does require Parliament to deliver Brexit and any future vote on Brexit after this month is likely to be a rubber stamp exercise. That is not to say any such election wouldn’t be a disaster – that goes without saying – but it should be noted that electoral risk comes in many forms and the current evidence is that Labour stands to lose far worse from its current hard-Brexit stance than it would were it to take a soft Brexit stance.

But too many in the party are justifying the current stance one way or the other based the on electoral tealeaves of whether the Lib Dems or UKIP are the real electoral threat. This misses the basic question that those voting for the legislation should answer – why are you handing David Davis and Theresa May a blank cheque?

Cllr Fred Cowell is a lecturer in law and has just finished writing a book on the Human Rights Act

Tags: Brexit Bill, Frederick Cowell, Gina Miller, hard Brexit, Jeremy Corbyn, parliamentary sovereignty, Theresa May

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