One of the consistent difficulties with Brexit is that those who have promised to make it a success waive away the inconvenient detail with which they are required to engage. This government has sought to make an abstract art form of replacing concrete vision with meaningless clichés. Soundbites, however, are no substitute for carefully-considered, well drafted legislation. Post-Brexit, the UK requires legal certainty and a framework that doesn’t tip us over a constitutional and legal cliff-edge.
The EU Withdrawal Bill, a critical piece of constitutional legislation which is aired in the House of Lords tomorrow, threatens to undermine the rule of law, having left the House of Commons in a parlous state. The law must be certain for people to know their rights and obligations, and for judges to be able to apply it. This is a cornerstone of our democracy. Whilst one cannot underestimate the complexities of drafting so crucial and defining a piece of legislation, the debacle surrounding the Bill has come to represent the wider Brexit debate.
Potential problems with the Bill were foreseen even before it was drafted. Fears that it would contain sweeping “Henry VIII powers,” which would lead to a wholesale transfer of power from parliament to the executive, were voiced, alongside anxiety that it would open up a feast of potential deregulation for those in the Brexit camp so inclined. Such a complex piece of legislation required careful thought as to how it would achieve its aim of creating maximum legal certainty. The Bill was published just before the summer break. Serious concerns were raised by lawyers, academics and the House of Lords Constitution Committee, who concluded that the Bill was “highly complex and convoluted in its drafting structure” and that it left “multiple and fundamental constitutional questions unanswered.” In short, the technical detail of this Bill presented serious adverse consequences for our constitutional, legal, social and economic futures.
This was apparent to many MPs, including within the Conservative Party led by the former Attorney General Dominic Grieve, who sought to make amendments to the Bill to remedy its many fundamental failings. Despite the warnings from so many, some limited concessions and even one widely-publicised defeat, the government largely pushed through the Bill without remedying those flaws. It asserted that if MPs were to block the Bill they would be blocking the will of the people to carry out Brexit. This is an absurdity.
Forcing complex propositions into stock clichés has been a defining feature of the Brexit “debate.” Take, for example, John Redwood’s comments in the House of Commons on the Withdrawal Bill’s failure to protect rights currently guaranteed to us by EU membership. He declared that “the best guarantee of the fundamental rights of the British people is the will of the British people as expressed through the parliaments they elect.” But as David Davis breezily reminded the Brexit Select Committee last week, opinions change when facts change. The idea that citizens should rely on the government of the day, any government of the day, to protect their best interests, minorities alongside the majorities, is so quaint that it verges on the frightening. In fact, it is founded either on a complete misunderstanding, or a deliberate obfuscation, of how modern democracies function.
“The government’s assertion that rights and protections will not be lost by the wording in this Bill is untrue”When David Davis told the Brexit Select Committee “that was then, this is now,” of another matter entirely (the ease and speed of negotiating free trade agreements), he unintentionally but neatly illustrated the problem with Redwood’s argument. This government, under this precarious leadership, may well promise to maintain existing rights’ protection, but what’s a promise worth that is not carved into the letter of the law? Many of our fundamental rights, be they environmental or workers’ rights or consumer rights are either provided or backed up and enforced by the EU. When that protection and accountability is removed, there may be nothing to stop another government rolling back those rights. “That was then, this is now,” they might shrug. Rights are hardly fundamental if they can be chopped and changed by governments at will.
The government’s assertion that rights and protections will not be lost by the wording in this Bill is untrue. That much is apparent by reading through the government’s own right-by-right analysis of the EU Charter of Fundamental Rights. That’s why the Equality and Human Rights Commission, Liberty, Amnesty International and so many other civil society groups are expressing serious concern. That the government persists in maintaining that rights will not be lost only lends weight to the concerns.
Just one example. When the Charter goes, we lose its freestanding right to equality, amongst other rights. That provision is not replicated elsewhere in our domestic law which is why many, like our national human rights body, have been advocating for a constitutional right to equality as well as express provisions on the face of the Bill on non-regression. The Equality Act is not a constitutional piece of legislation. It means that another parliament down the track could scrap parts (or less likely all) of it.
If any of that seems far-fetched, the divisions in the House of Commons on the proposed amendments to the Bill in recent weeks plainly show how party interest can trump national interest. How is it that the Bill got to the Lords without an impact assessment on the Good Friday agreement? Why did MPs reject Tom Brake’s amendment on impact assessments, those inconvenient details which David Davis appears to have swatted aside? How could these sweeping Henry VIII powers get through the Commons, and without additional protections for proper and adequate scrutiny? How could so much scope for uncertainty, confusion and even, indirectly, further populist attacks on judges, be retained in the Bill? Too many MPs preferred to side with their party, some nakedly expressing their hope that the Lords would deal with the problem, rather than stand up and force this government to do better. When, on one occasion before Christmas, some Conservative MPs bravely chose to put duty before party, parts of the national media erupted with cries of betrayal.
This should not be about bravery. This is about the complex technicalities of a piece of legislation that could undermine substantially our rule of law. It should not have been a partisan affair when our constitutional framework was at risk. Such is the toxicity of Brexit now that principled politicians, many of whom are lawyers and understand the Bill’s failings at source, nevertheless voted through the Bill.
“Lamentably, it now falls to the Lords to take out their red pens and focus on the task of forensic analysis”“That was then, this is now” hums over the Withdrawal Bill with alarming threat. This is a Bill in which there are sweeping provisions to transfer power to a handful of ministers in a profound transformation of our constitutional arrangements. This morning, the House of Lords Constitution Committee has expressly stated that the Bill as drafted is “constitutionally unacceptable.” It rightly criticises the government for failing to heed its warning about the breadth of Henry VIII powers, and the inadequate provision for scrutiny which should act as a constitutional brake. It picks apart the detail of provisions that are conceptually flawed and likely to cause confusion and legal uncertainty. It highlights the significant constitutional consequences of proceeding with the Bill without legislative consent from the devolved legislatures. Whilst the report is intensely critical, it adopts a constructive approach for a re-writing of many of the Bill’s provisions. All of this begs the question of why the government not only presented a Bill in this form, but then actively sought to scupper amendments designed to improve it.
Haste may be one factor, as well as the uncertainty of the position where negotiations remain outstanding. But neither of those explain why the Lords’ Committee initial recommendations were not picked up by the government and acted upon at an early stage. Nor do they explain what must be an ideological approach to removing the Charter because if, as the government continues to assert, the Charter brings no new rights, then why is it being uniquely targeted for removal in this way? Carelessness alone, and an inexcusable inattention to detail, do not alone suffice.
One possible, perhaps sinister, answer may lie in the Prime Minister’s Lancaster House speech itself. The threat of a rights bonfire, à la Singapore, has underpinned the Brexit debate in some key quarters over the last two years. It has been expressly championed by Brexiteers such as Priti Patel. Eurosceptic MP Suella Fernandez was recently promoted to the Department for Exiting the European Union. Shortly afterwards, she inadvertently accepted, in a recent Telegraph article, that shedding the Charter entailed getting rid of another layer of fundamental rights. Keeping a divided party happy may be more important than worrying about constitutional niceties and whether the rights of future generations are safeguarded by this Bill. “That was then, this is now.”
Lamentably, it now falls to the Lords to take out their red pens and focus on the task of forensic analysis, through a deconstruction and reconstruction of this profoundly flawed Bill. That it should fall to the second Chamber to safeguard the country’s constitutional security, its devolution arrangements and the social and economic rights that most people under 40 have taken for granted across their lifetimes is a painful reflection of the abrogation of duty of the government, and many in the House of Commons. In line with diplomats, judges, MPs, civil servants, the Bank of England and so many others before them, the Lords are now likely to face the poisonous calls of treachery that have met those seeking to do their jobs and prepare the country for the reality of life post-Brexit.
The Lords know they have a duty to slow the pace down, to attend to the technicalities of legal language and to ensure that the debacle that is Brexit does not destroy decades of progress, the glue of the Union, the rule of law and the fabric of our rights-based democracy itself. Small technicalities, these.
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