The European Union (withdrawal) Bill 2:- Power grab?

In the first article looking at the European Union Withdrawal Bill, we set out the principle behind it but pointed out that it was impossible for EU regulations and directives to be transferred verbatim onto out statute books. As an example, we used one of the shortest and indeed, most pointless of all Regulations,  the so-called “Cuddly Toy Sheep” Regulation 1462/2006.

The object of this regulation is pretty simple  – that the toy in question may be given the appropriate  classification code for customs purposes. If we were to use the same codes on Brexit and use similar customs checking processes, transposition of this law into domestic law ought to be pretty simple. We remove all references to the Commission, the Treaties and references to Member states, extract the important bits, find a new template, perhaps even using the relevant bits of a piece of pre-1973 legislation, change a few words here and there and Bob’s your uncle! All done.

Actually, no. The Regulation we have been using as an example cross-references another Regulation 2913/92. This reference will have to be changed. Then the regulation which is cross-referenced talks about the Community Customs Code. Even if we were to be as foolish as to seek some sort of customs union with the EU, which we argued was very unwise, this bit will need to be re-worked as the term “Community Customs Code” would not be appropriate to describe the customs arrangements of an ex-member state.

So it is quite apparent that even a simple piece of EU legislation which our Government may wish to retain in a way that it works after Brexit exactly as it did before will need to be re-written in places. Given that in October 2015, the EU acquis amounted to 23,076 pieces of legislation and has grown further since, it is very apparent that our teams of Civil Servants will have a massive task on their hands  if everything will be ready for Brexit day.

If this concept is relatively straightforward to explain, a more complex issue is concept of the superiority of EU law over domestic legislation.  Our accession to the European Union granted power to the EU to introduce or amend legislation superior over British law “without further enactment.” (These three words come verbatim from the European Communities Act 1972.) On leaving the EU, what status do EU laws have relative to earlier domestic legislation? This is not an easy question to answer, even if you are a lawyer.

The concern among both Opposition MPs and the devolved assemblies in Edinburgh, Cardiff and Northern Ireland is that a combination of the re-writing process and the complexity of any new relationship between legislation which originated in Westminster and that which was passed down to us from Brussels will actually change the make-up of our statute books without Parliament being consulted or even being aware.  In other words, the Government  will use the EU (Withdrawal) Bill as an opportunity to further its own political agenda without requiring Parliamentary scrutiny. It certainly does appear to  strengthen the hand of the executive, rather than Parliament, because of the delegated powers it contains.

At the heart of this so-called “power grab” is the use of the Statutory Instrument – a facility which, in certain situations allows the government to make or amend legislation without Parliament having he power to change or even debate it. Given that MPs are our elected representatives, the very existence of anything which allows the democratic process to be bypassed is unsatisfactory. There is, however, a certain irony in the loudest critics of the use of Statutory Instruments being europhiles – after all they support our EU membership which reduced the power of Westminster. Ken Clarke famously said in 1996 ““I look forward to the day when the Westminster Parliament is just a council chamber in Europe” so any new-found commitment to Parliamentary democracy is somewhat hypocritical given the real loyalties of Europhile MPs lie in Brussels, not Westminster.

There is no doubt that Brexit provides us with an opportunity to re-boot our complete democratic process and indeed, this needs to go well beyond giving Parliament greater opportunity to hold the government to account by strengthening its powers of scrutiny. Our democratic process should be re-vamped to give us, the people, greater power over the people we elect to represent us and ot hold them to account if they, individually or collectively, do a bad job.

But that is for the future. The immediate concern of groups like Unlock Democracy is that the sheer complexity of repatriating EU law is that some legislation derived from EU Regulations and Directives may be weakened or lose its force completely. There is another possibility that the amount of work required in re-working all this legislation will end up with ambiguities more by accident than design.

The Hansard Society has come up with three proposals which at least mitigate these concerns:-

  1.  The EU (Withdrawal) Bill should be amended to circumscribe the powers it delegates more tightly.
  2. A new, bespoke, EU (Withdrawal) Order strengthened scrutiny procedure should be introduced for the exercise of the widest delegated powers
  3. A new House of Commons ‘sift and scrutiny’ system – with a dedicated Delegated Legislation Scrutiny Committee – should be established for all delegated legislation

These are eminently sensible suggestions. The only problem is the timescale. We cannot afford to arrive at Brexit day with any gaping holes in our legal system. To take one obvious example – there will be little if any pre-1973 domestic legislation relating to information technology, the Internet or mobile phones. Massive developments have taken place in these fields since we joined what has become the EU. It is therefore very likely that most of the legislation regulation which govern them comes from the EU. If a given piece of EU legislation slips through the net, some important aspects of day-to-day life for many of us would be completely unregulated.

This piece only scratches at the surface of the complexities our politicians and civil servants face. A huge task lies ahead of them and one which is even more critical than securing a trade deal with the EU.

However given we are talking about well over 20,000 items of legislation, are there some which are so obviously inimical to our interests as an independent, sovereign nation that they should be excluded from the European Union (Withdrawal) Bill altogether? We will consider this subject in the next article.

Three little words

This letter was sent by our Chairman to Derby, Leicester, Nottingham and Burton on Trent papers.

The government is introducing the European Union (Withdrawal) Bill and many Europhiles have acquired a new-found zeal for the principle of parliamentary scrutiny. They say the Bill gives “Henry VIII” powers to the government to strike out legislation which has come to us from the EU.

This is the height of hypocrisy. The European Communities Act 1972 was voted through by MPs who had not had a chance to see the treaty to which they were agreeing. Nigel Spearing (Labour), the last MP to speak against it, complained that Parliament was “signing a blank cheque”.

The treaty of accession to the EEC had been signed under royal prerogative without any parliamentary scrutiny at all. The 1972 Bill made the terms of the treaty enforcible in British law. It said that all European law – past, present and to come – would immediately become binding in its entirety “without further enactment” by our Parliament. This is the settlement of subjection which advocates of EU membership have maintained and supported ever since.

It was an Enabling Act, transferring responsibility for our laws out of democratic control – more gradual but not dissimilar in kind to the one which Hitler used to nullify the German parliament. Twelve years before, the Lord Chancellor Lord Kilmuir had written to Edward Heath to say that Parliament would have to become accustomed to being a rubber stamp, if we joined the EEC. That was kept an official secret for thirty years.

Governments of all parties have since promiscuously overused the device of Statutory Instruments to bypass effective parliamentary scrutiny and debate. So there is every reason to reform parliamentary procedures, now we are getting our country back. However, the least hint of filibustering by Europhiles under the cloak of a pretended concern for the dignity and powers of Parliament should be seen for the fraud that it is and disregarded. The European Union (Withdrawal) Bill must go through in a timely way, or we will never see a return to any proper, democratic accountability at all. Parliament can always kick out a government here – something we never could do with the European Commission.

Yours faithfully,

Edward Spalton

Muddying the waters

David Cameron is keeping us guessing regarding the finer points of the “deal” he hopes to sell to us, in order to persuade us to remain in the EU, but a few key features are leaking out.

The most important of these is his claim that he will change our domestic law to state that Parliament is sovereign. “I think there is a good case for it,” he told Radio 4’s Today programme earlier this week. Michael Gove, the Justice Secretary has been asked to look into this. At first glance, it sounds like an important significant agreement has been made with the other member states, allowing us a major concession. This may well be his cynical tactic. “We’ve won power back from Brussels” could be a rallying cry for the all-important swing voters.

Nothing, however, is what it seems and Mr Cameron is deceiving us again. He is clearly determined to try to keep us in the EU or else he would not be trying to muddy the waters in the hope that we, the people, won’t look beneath the surface. While we only have the scantiest of clues to guide us at this stage, it is already obvious that talk of restoring sovereignty to Parliament is just smoke and mirrors and should not therefore make anybody waver in their desire to leave the failing political experiment of the EU with its aim of creating a Europe-wide centralised Superstate.

Let us start by taking Mr Cameron at face value and assume that he will come back with an agreement with the other 27 member states to allow the UK Parliament to veto ALL EU legislation; not very plausible. Firstly, what status will this “agreement” have? Without a treaty to back it up – and there is no sign of a new treaty in the offing – it will have no legal force within the EU or in this country. Furthermore, even if it did, we are faced with the uncomfortable reality that the majority of our MPs are Europhile. Six years ago, had Parliament so decided, it could have struck down the Lisbon Treaty – indeed, our MPs could have killed off every new treaty since the Single European Act of 1986. They already had sufficient powers back then, but did not choose to use them.

Analyse how Parliament handles its existing powers and Cameron’s great deal rapidly loses much of its force. Take the EU (Approvals) Bill of 2014. This Bill covered a number of EU-related issues, but most of the debate centred on the Europe Citizens’ Programme, a five-year programme costing €185 billion to fund educational projects that seek to enhance both the understanding of EU institutions and European integration. In other words, as one MP put it: “this grant-making exercise is aimed at providing propaganda, as I see it, for purposes of political union.”

In the House of Commons, only 32 MPs opposed it at this second reading, and just a couple of weeks later it went through its final stages with only 30 MPs opposing. Can we really trust our Parliament to stem the flow of European legislation? Its track record to date suggests we cannot.

Sometimes, of course, Parliament isn’t even given a say by our own Government ministers. The shambles last year over the opt-in to the 33 law and justice measures in the Lisbon Treaty from which the UK had earlier opted out is a classic illustration of this. MPs opposed to the opt-ins ended up accusing ministers of “tricking” them when it emerged that they would not be given an individual vote on the controversial European Arrest Warrant after being initially told that they would.

If MPs are not told the truth, giving them any extra power is of little value. As readers to John Ashworth’s series on fisheries may recall, Edward Heath deliberately misled the House of Commons over the nature of the UK’s “transitional derogation” from the Common Fisheries Policy. He assured them that we held a veto whereas we had nothing of the sort. Can this Conservative Europhile Prime Minister Mr Cameron really be trusted any more than the previous Conservative Europhile Prime Minister Mr Heath?

Indeed, we can go back to the vote on the original accession treaty. MPs were forced to vote on a document that most of them had not even read. Heath knew that in those days, when MPs were more likely to stick up for their country than their successors 40 years later, he would never have succeeded in passing the bill if his colleagues in Westminster knew the full truth.

So this ‘power’ which the UK Parliament may gain, according to Mr Cameron, is in reality, a paper tiger. Of course, so far we know nothing about its scope. EU legislation comes in three main forms: regulations, directives and decisions. Currently, only directives need to be run past Parliament. Is Mr Cameron proposing that Parliament has the power to veto regulations and decisions as well, instead of automatically rubber-stamping them? It would be good to know. Much EU legislation currently goes onto our statue books by Statutory Instrument, which means that Parliament is bypassed altogether

For all the smoke and mirrors of Cam’s great Sham, this latest “rabbit out of the hat” nevertheless requires a slight change of tactics by “Leave” campaigners. When the positions of UK and Norway have been compared, which they recently have been on this blog and elsewhere, it has been noted that Norway refused to implement the Third Postal Directive, even though it was marked as EEA-relevant. There is no point in trying to sell this to undecided voters. Cameron will be claiming to offer our toadying MPs similar powers; the problem, as we have outlined above, is that they won’t use them.

Instead, the focus of our campaign must be to tell all and sundry just how untrustworthy the majority of our politicians are. No doubt we will soon have ample evidence of this when scores of “Eurosceptic” Tory MPs all fall in line behind their leader saying what a wonderful new deal he has secured. Convince the country that they are talking rot and we may stand a chance not only of leaving the EU but of addressing a good few other failings in the way we are currently governed.

Photo by treehouse1977