July 14, 2017 by Paul Goldsmith
Like many things in politics these days, the response of the opposition parties to the publishing of the European Union (Withdrawal) Bill was pretty predictable and probably written a while ago. Yet many of the reasons why the opposition are so uncomfortable with what is being proposed, rather than proving those that wanted to leave the EU wrong, merely make their point for them. This country’s laws are so intertwined with those of the EU, the integration is so deep, that the UK’s Parliamentary sovereignty, which matters to some people, was being steadily eroded beyond repair.
The Bill aims to repeal the European Communities Act 1972 – which took Britain into the EU, ending the supremacy of EU law and stopping the flow of new regulations from Brussels. It also takes all existing laws derived from the EU and continues to enforce them until they are changed or scrapped by future legislation. If this wasn’t done, the UK would not have a functioning statute book when it leaves the EU at the end of March 2019.
That doesn’t mean the opposition don’t have a point. Labour say that it won’t support the bill in its current form, and wants the full incorporation of the European Charter of Fundamental Rights into British law. This is because the ECFR guarantees workers’ rights and there is also concern that under the current rather vague wording Government ministers can alter legislation without full parliamentary scrutiny.
This is because as anomalies arise between EU law and UK law the Government will have to take powers from the Statute of Proclamations 1539 to correct them (hence the term ‘Henry VIII powers’. For example, Matthew Parris in the Times points out that adopting EU law would mean Britain is bound into the European Medicines Agency (EMA), but EU law presupposes membership of the EU, which is a condition of being in the EMA. So the withdrawal bill will need a detailed addendum, passed by a ministerial fiat authorising a new UK regulator. Which doesn’t exist.
Meanwhile, the Scottish and Welsh governments, who have to give legislative consent to the bill before it becomes law, are unlikely to do so as it stands. They have pointed out that areas that are normally in devolved areas (e.g. agriculture and fisheries) would be returned under this bill to Westminster instead of Holyrood and Cardiff, then only transferred to Scotland and Wales under a new agreement with the UK. This is seen as a “naked power-grab” by Westminster, undermining the principles or devolution by imposing new restrictions on the Scottish Parliament and Welsh Assembly.
Remain campaigners are pointing out that this shows that the claims of those Leave campaigners who believed that sovereignty could be returned with a click or Britain’s fingers have been proven ridiculous. In fact, negotiating Britain’s way out of four decades of legal integration is extraordinarily complex. They are also hoping that as the electorate, including those who voted to leave, sees this that they will demand a second choice and will vote to Remain.
But this is both to misunderstand the point that many sovereignty-led Leave voters have been making for years and also rather ignorant of how almost impossible it will be to reverse the Article 50 process.
The sheer complexity of leaving the EU is because when Britain joined in 1973 and when Britain voted in a referendum in 1975 to rubber stamp that choice it rather unknowingly at the times signed up to a process which was to lead inexorably to economic and political integration and union and a loss of political sovereignty.
During the 1975 Referendum there was no mention of economic and political union and sovereignty was only mentioned in the Yes campaign’s literature in the context of how it would be pooled rather than lost and the ‘national veto’ that existed would stop any laws being made that were not in the UK’s national interest. That national veto was diluted massively by a process started by Margaret Thatcher with the Single European Act in 1986 and continued through the Maastricht, Amsterdam, Nice and Lisbon Treaties. All of these were ratified by the UK Parliament (Maastricht after a massive fight, Amsterdam and Nice subject to Labour’s massive majority and Lisbon after a broken promise of a referendum), but not by the British people. National vetoes were replaced by a system of majority voting in many areas – which means that something like 16% of our laws originate in Brussels and around 60% of our rules and regulations are affected by the work of the EU.
Those who want to leave the EU point out that many of those were imposed on the UK by an undemocratic process in which the traditional link between the electorate and the laws, rules and regulations that cover it was broken. We may like those laws, rules and regulations, but we did not have a chance to give consent to them. The 2016 EU Referendum was a chance to give consent to that process continuing, and Britain chose not to give its consent. So the difficulty that the European Union (Withdrawal) Bill is facing to get through Parliament and to actually operate successfully is just further evidence for Leavers how far this process of integration had gone. It may take until 2050 to sort it out, but that to some is a wait that is worth it.
As far as opposition parties blocking the Repeal Bill process and other tasks associated with leaving goes, it won’t mean that Britain remains in the EU, it means that Britain will crash out on very unfavourable terms.
This, by the way, is why the current situation in which everyone is shouting as loud as they can to get what they want, which only goes to mean nobody will get anything they want. What should be happening is that the whole political class should commit to a cross-party process to try to come to an agreement that might lead to the best exit Britain can have. Brexit should not be defined by normal political divides. If it continues, we all lose.