Twenty-nine years ago this month, the Vote Leave campaign got underway. Nigel Farage was still making his anti-establishment way as a City broker and a young Michael Gove was heading northwards to work on the Aberdeen Press and Journal. Instead, it was the founder of the movement who did the honours. Margaret Thatcher travelled to Bruges, to the College of Europe, the Europhile madrassa that has radicalised generations of youth to the cause of ever closer union. There in the belly of the beast she smartly explained why Britain was marvellous and wouldn’t it be better all round if the Continent was more like Blighty.
The Bruges Speech was in effect Maggie’s repudiation of the European project, an effort to which she had once committed her energies and one particularly garish jumper. She did not propose withdrawal but she had, unwittingly or otherwise, arrived at an analysis that would come to dominate Conservative thinking on Europe. As the most memorable line from the speech put it: ‘We have not successfully rolled back the frontiers of the state in Britain, only to see them reimposed at a European level with a European superstate exercising a new dominance from Brussels.’
Those 32 words are the germ from which Brexit grew. Britain is a distinct nation, author of its own destiny, and when Britain’s interests and Europe’s interests are at odds, Britain will go its own way. When the UK Parliament acts, it will not be put right by Johnny Bloody Foreigner. Euroscepticism, even the left-wing variety, has always been an alloy of chauvinism and democracy. Brexit, when it wasn’t about dodgy claims on buses and looming Turkish hordes, was about ‘taking back control’. It’s hardly surprising that parliamentary sovereignty took a back seat to more populist rationales during the referendum; slapping an EU directive on a billboard and the words ‘BREAKING POINT’ doesn’t have quite the same impact.
Sidelining the constitutional case may have got Eurosceptics a Leave vote but it will not get them Brexit. The primacy of Parliament (the Crown-in-Parliament for sticklers) should be at the centre of the post-EU future the government is haphazardly piecing together. Instead, Parliament has been cast aside by a control-freak executive using Brexit as a pretext for a regal power grab. The audacity of what Number 10 is up to is such that even the impeccably impartial researchers at the Commons Library couldn’t help but flag it up. In their briefing paper on the European Union (Withdrawal) Bill, the Library notes:
‘The Bill gives the Government powers to amend, if certain conditions are met, all retained EU law, including retained EU law which has been implemented in the UK through primary legislation. One of the main powers, in clause 7, is designed to enable the Government to change retained EU law so as to ensure that it operates effectively outside the EU.’
The use of these statutory instruments to amend primary legislation is not new; they’re also known as Henry VIII powers and invoked frequently by ministers. What is striking, and should worry Brexiteers on the backbenches, is the sheer sweep of how Number 10 intends to use them. As well as amending retained legislation, ‘the power can also be used to change primary and secondary legislation that is not retained EU law, so long as the purpose of the change is to resolve a deficiency of retained EU law’. The delegated powers afforded the Treasury benches is ‘unprecedented in terms of both their legal scope and constitutional significance’.
Brexiteers, who count among their number many diligent parliamentarians, are fooling themselves if they believe they can keep the executive’s use of these powers in check. As the Commons Library underscores: ‘Scrutiny of all the regulations made under this Bill will be a legislative challenge on an unprecedented scale. There are estimated to be over 12,000 EU regulations to be adapted into UK law, some of which will require corrections to ensure there are no deficiencies in domestic legislation upon our exit from the EU.’
Secondary legislation is subject to judicial review but it would not be feasible for the courts to run the rule over 1200 such instruments, let alone 12,000. Instead, this executive power-grab will go largely unlimited and unscrutinised. Brexiteers, particularly those on the Tory Right, should not choose now to mellow on government overreach simply to satisfy their hunger for a clean, fast Brexit. That is not how a sovereign parliament works — at least not in Britain.
Brexiteers are impatient of criticism from those who voted Remain. Get on board! Put the country first! Do you want Britain to fail? But Remainers are not the enemies of Brexit. We are outnumbered, have no political power base, and can only beg for scraps at Jeremy Corbyn’s table. The real threat to the Brexit you want is a government that says the only way to get it is if you give them unchecked power. There is little point in rolling back the directives of the European Commission only to see new directives imposed at national level by an unwieldy executive exercising dominance from Downing Street.
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