The former attorney general on the problems with the EU Withdrawal Bill—and the foreign secretary's Brexit approachby / October 4, 2017 / Leave a comment
Ever since Britain triggered Article 50 in March, suspicion has grown that senior government ministers simply do not understand Brexit. They rail furiously against Brussels bureaucrats, they make the emotional case for reclaiming British sovereignty, but the technical know-how—so vital to securing a favourable Brexit deal for the UK—still seems beyond them.
The same cannot be said for Dominic Grieve QC. The MP for Beaconsfield and former Attorney General is one of parliament’s finest legal minds, and relishes a chance to get stuck into the nitty gritty of policy. I met him at Manchester’s Midland Hotel during Conservative Party conference—his 21st conference in a row. Over the next three quarters of an hour, the former “Remainer” tore into the government’s Brexit Bill. Boris Johnson, who delivered his speech on that day, received much the same treatment.
On the subject of Johnson’s recent Brexit interventions, Grieve said: “The principle of cabinet responsibility is that you debate and discuss within government how you are going forward: you agree a line, and having agreed a line, you stick to it. What you can’t do is to agree a line in cabinet and then make public statements which are—or appear to be—at variance with what you’ve previously just agreed with your colleagues. That is not a proper approach.”
With a mischievous smile flashing across his face every few sentences, Grieve then set upon the EU Withdrawal Bill. Currently heading for its committee stage, the Bill will transpose all EU law into UK law. In an intervention which is sure to provoke anguish in No 10, Grieve suggested the government’s current approach to the Bill has left it vulnerable in the courts. As things stand, “I think there will be legal challenges,” he said.
That could precipitate a constitutional crisis, holding up our exit and infuriating hard Brexiteers.
“There’s going to have to be a piece of primary legislation that reflects the deal that has been carried out—and then gives the government the authority to implement the measures that we’re enacting.”
Granting MPs a “take it or leave it” vote on the final deal just isn’t good enough, then. “I think doing this in a proper constitutional fashion, that would be a better way forward.”
Yet getting the party to agree on a “way forward” is another matter. The Conservative Party has been plagued by Europe for decades—three prime ministers have fallen over our relationship with the continent—and since the Brexit vote last year, ostensibly held to settle the issue once and for all, tensions seem only to have risen. The party is now a total jumble of “true believer” Brexiteers, hardline Remainers, and those who campaigned for “Remain” but feel bound by the referendum result. Grieve is in this latter camp.
“I haven’t changed my mind in the last 12 months. I do not see the national interest or advantage in leaving the EU,” he confessed. “But seeing as that’s what the electorate has determined the government has the difficult task of trying to implement the electorate’s wishes to leave in a way that is coherent.”
Brexit “is a fundamentally unconservative thing to do”
This poses something of a challenge. The problem, as Grieve sees it, “is that in order to carry out this change rapidly, even just to incorporate [law] and cope with Brexit, firstly the government has to take draconian powers to essentially legislate by statutory instrument, which is not healthy in a democracy.”
He was referring to so-called “Henry VIII clauses,” which concentrate enormous power in the hands of ministers and which the Brexit Bill provides for. According to Grieve, while some such instrument is necessary—”or we’d be here for 100 years” trying to transpose individual EU laws with votes in parliament—the process “needs to be controlled,” with parliament able to scrutinise it properly.
He wasn’t done yet. The government, he explained, “is taking this big blob of European law [but having some difficulty] in deciding whether we should continue to treat it as if it were EU law, with all the safeguards, process rules that surround it, or if we should somehow treat it as a sort of rather strange arrival into our own national law.” According to Grieve, it would be better “to treat it as what it is—which is EU law with the safeguards that exist within EU law.” But the government hasn’t done that.
Staggeringly, given the Bill has been drafted by ministers from his own party, he raised yet another issue. There is “some concern about the extent to which you look at EU law jurisprudence to guide the [UK] courts as to how they interpret EU law after Brexit,” he explained. This was the point made by former Chief Justice David Neuberger over the summer, who said the government had to offer far more clarity to British judges. Bob Neill, Tory MP and Chair of the Justice Committee, made much the same remark to me last month. It is a problem that isn’t going away.
Grieve could have attacked the Bill all afternoon—but I wanted to try him on the negotiations. During the conference, various ministers were at pains to stress Britain could cope with a “no deal” Brexit—David Davis among them. But if talks break down over the coming months could we really survive just being thrown out into the cold? Grieve continued to differ with the government.
“We have to have an agreement at the end,” he told me. “A total no deal scenario would create chaos.”
Addressing head-on the question of whether a good Brexit outcome is likely, the reply was worryingly sceptical. “The question of whether this is achievable or not is unanswered.”
With all this uncertainty in politics at the moment, I was minded to ask him whether Brexit was at heart an unconservative thing to do. Grieve’s answer? “Yes. It is a fundamentally unconservative thing to do to embark on a revolutionary—rather than the process of evolutionary—change.”
“The electorate, in voting for Brexit last year—though they may not have entirely realised what they were doing in terms of the enormity of the task it would set for government—were in fact asking for something very radical.” That a Conservative government is left to implement their decision was an irony not lost on Grieve.
“I certainly enjoyed my time on the front bench. If I were asked to go back I would be willing to do it”
In her Florence speech last month, the prime minister proposed a two-year Brexit transition. Johnson quickly made it one of his Brexit “red lines” that the transition must not last one day longer than this. Does Grieve agree?
“I certainly don’t think that the transition should be a fixed term,” he said. “I don’t think we should get hung up on whether it’s two years or two years six months, that seems to me to be profoundly irrelevant.”
Our conversation, nearing its end, turned to domestic politics—and the party’s dire result in June. “Clearly the result of the last election was a disappointment for [the PM],” said Grieve. Did she bear any personal responsibility? “Ultimately prime ministers and leaders of parties always hold responsibility, as she’s accepted.”
The solutions lie in part in “trying to emphaise domestic policy, which is what the prime minister is certainly attempting to do at this conference,” Grieve said. I could almost hear the italics on “attempting.”
The PM, though, seemed to have his support for now—and her commitment to the European Convention on Human Rights was welcomed by Grieve, who stuck his neck out on the subject while serving in Cameron’s administration: “I don’t think on the basis of what’s happened since Theresa May became PM that there’s any risk of our pulling out of the ECHR.”
What next for the man with an eye for detail? Would he ever seek a return to frontline politics? “Being on the front bench is hard work, it’s challenging, but it’s also quite a purposeful activity, particularly if you can do some concrete things which you think are beneficial.”
“Government’s about taking lots of little decisions as well as bigger decisions, so I certainly enjoyed my time on the front bench. If I were asked to go back I would be willing to do it.”
As it stands, he said, he shall continue to speak out and look at policy issues. His work is cut out for him. He ended with a parting shot at MPs who believe the government should be left alone to get on with Brexit. “Anybody who reads their constitutional ABCs would have discovered very quickly that parliament’s role in all of this is going to be critical and you can’t suddenly replace that unless you want to have anarchy. And certainly people weren’t voting for anarchy when they voted to leave the EU, they were asking parliament to do something.” Grieve, for his part, will keep fighting.