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.
