By Thomas Sherlock
Currently passing through the Committee Stage is the European Union (Withdrawal) Bill, which is proving, somewhat unsurprisingly, controversial. Alongside the actual contents of what will be one of the most important components of Brexit, the Bill has provoked a wider debate on what exactly Parliament’s role should be in Brexit. Should Parliament be actively trying to shape Brexit and holding the Government accountable, or should it be taking a backseat and allowing the Government a freer hand?
As with everything to do with Brexit, this is not a clear-cut debate. Fundamentally this division relies on a problem inherent with referendums, what is the role of representatives in implementing a decision made by direct democracy?
The argument of those pushing for a stronger role for Parliament is simply that Parliament is sovereign (a long held concept in British politics, dating back to Albert Dicey’s writings on the British Constitution in 1885) therefore Parliament should be one to put the rubber stamp on all Brexit-related negotiations. The Government has now seemingly conceded to this argument, with Brexit Secretary David Davis announcing just as the Withdrawal Bill’s Committee stage was beginning that Parliament would be given an opportunity to vote on whatever deal the Government negotiates with the European Union, indicated to take place shortly before the Article 50 deadline. This sounds reasonable enough on paper, but does raise the inherent problem-what if Parliament votes against it? Does the Government ask the EU to delay Article 50’s deadline so it can renegotiate? However this potential safety net is being quashed by an amendment to the European Withdrawal Bill the Government is attempting to pass which would codify ‘exit day’ (the day the UK will cease to be a member of the EU, currently named as 29th March 2019) in UK law, thus removing the ability to renegotiate. The worry among some MPs is this will be used to essentially force Parliament to accept whatever deal is produced, for fear of leaving the EU without any deal in place at all, which to a lot of MPs is an utterly unacceptable scenario. Therefore a group of Tory MPs, identified as the ‘mutineers’ by The Daily Telegraph, are threatening to rebel to join opposition MPs to block this amendment, which has resulted in the Government suggesting some form of compromise, and as such the amendment hasn’t actually faced a vote as yet.
The biggest controversy over the European Withdrawal Bill, and thus the part with the biggest implications for the role of Parliament, has been the so-called ‘Henry VIII’ clauses. These powers would allow ministers to reword European laws to incorporate them into British law after Brexit. To quote the act itself: ‘A Minister of the Crown may by regulations make such provision as the Minister considers appropriate to prevent, remedy or mitigate – (a) any failure of retained EU law to operate effectively, or (b) any other deficiency in retained EU law, arising from the withdrawal of the United Kingdom from the EU’. The act goes on to define deficiencies and explains that regulations cannot affect taxation, create a criminal offence or affect either the Human Rights Act or the Northern Ireland Act. However ‘failure of retained EU law to operate effectively’ is not clearly defined, creating something of a grey area. There are later requirements that state regulations must go before Parliament if the regulation radically changes implementation of the law (by establishing a new public authority, or by giving an existing public authority more power to exercise or by widening the scope of a criminal offence or amending power to legislate) and there is a way Parliament could potentially annul new regulations. The Government’s argument is that this will streamline the process of Brexit but critics argue that it forms a power grab, with this being a considerable boost to ministerial power with relatively little checks on the usage of these regulations, and with so many of these regulations expected it will be difficult for Parliament to keep track of all ministers’ actions. This is a complex debate that really can’t be boiled down to remainers versus leavers, or followers of the will of the people versus the ‘mutineers’, which the media at present seems determined to do.
These disputes over the European Withdrawal Bill are still only a part of the wider debate on Parliament’s role in Brexit, as they concern Parliament’s role after Brexit not during it. This dispute is still very much ongoing, as demonstrated by the release to the Brexit select committee of the Brexit Impact Reports in the last week. These are reports conducted by the Department for Exiting the European Union that the Government was forced to release by a vote of Parliament held last month. There’s a lot of criticism of the Government for holding back commercially sensitive information to the extent that David Davis is facing accusations of contempt of Parliament. This raises serious implications for government accountability as a whole. Brexit is proving a fundamental problem in this regard, how much free reign should the Government have when conducting these negotiations? How much can Parliament intervene before it’s encroaching on the decision already made by the electorate in 2016? This again stems from the awkward insertion of direct democracy into representative democracy through referendums. There are not simple answers to these questions-Negotiations surely cannot be made with Parliament intervening in every single matter, but equally Parliament has a clear right to hold the Government to account for its actions in enacting the ‘will of the people’.
My aim with this article is demonstrate how complex this debate really is. This is not simply remainers sabotaging the will of the people or Brexiteers fighting to ensure the democratic decision of the electorate against a hostile Parliament. This debate has serious implications for Parliamentary sovereignty, which is a cornerstone of how the UK is governed. The European Union (Withdrawal) Bill is one of the most important pieces of legislation in recent years (and is available here should any readers be interested: https://publications.parliament.uk/pa/bills/cbill/2017-2019/0005/18005.pdf), and devolving this discussion into branding sceptics ‘muntineers’ is far from helpful.