To those in the legal profession, Lord Denning’s reputation is in gentle decline. To literary critics, however, he remains one of the greats. Here is what he wrote, back in 1974, about European law:
“The Treaty [of Rome] does not touch any of the matters which concern solely England and the people in it. These are still governed by English law. They are not affected by the Treaty. But when we come to matters with a European element, the Treaty is like an incoming tide. It flows into the estuaries and up the rivers. It cannot be held back, parliament has decreed that the Treaty is henceforward to be part of our law. It is equal in force to any statute.”
The legal sluice gate, if you like, that parliament opened to allow European law in is the European Communities Act 1972. It is that Act which means (in domestic law, anyway) that we are part of the European Union.
And that is the Act which must be repealed if we are to leave the EU. And that job of repealing will be done by the European Union (Withdrawal) Bill published earlier today.
Its very first clause says: “The European Communities Act 1972 is repealed on exit day.”
A splendid starting point: we shall throw off the shackles of the ghastly Executive.
But then the detail—there’s always the detail—buried at the back. Section 14(1) says that “‘exit day’ means such day as a Minister of the Crown may by regulations appoint.” So a Minister of the Crown can choose.
Now. When important stuff gets done by regulations the government usually recognises that parliament should have control over those regulations. And, sometimes, the European Union (Withdrawal) Bill does. For example, if, in planning our departure from the EU we forget about some dusty bit of legislation that once made reference to an EU institution, and a Minister of the Crown wanted to put that right with a regulation, she would have to put a copy of her regulation before both Houses of Parliament and both Houses would have to approve it.
But not all the time. Because, on the date of our departure from the EU, the government proposes that there be no parliamentary control at all.
What happens if a Minister of the Crown has a bad day? What happens if the bloviating, beshagged puddingbowl who passes for Foreign Secretary of our once functioning nation, decides that he has had enough of Michel Barnier’s cruel takedowns? On the face of it, he can make a regulation repealing the European Communities Act 1972. “Take that, Barnier! Oh, everyone’s flights have been cancelled. Still, he’s not laughing now, is he?”
This is not how it should be.
The timing of a nation’s departure from the EU must be controlled by the only people with a democratic franchise: MPs. Parliament. This is how even a semi-functioning democracy would work.
The Prime Minister recognised this in her Lancaster House speech: “I can confirm today that the government will put the final deal that is agreed between the UK and the EU to a vote in both Houses of Parliament, before it comes into force.”
And her promise was later clarified by the Minister of State, David Jones: “we intend that the vote will cover… the withdrawal arrangements.” And if Conservative MPs want to guarantee that this promise to parliament and the electorate is honoured, they must amend the Bill.
But, for the Labour Party, the issue goes beyond mere sensible governance. Because the Labour Party has made a much more explicit promise. Its Manifesto says: “Labour recognises that leaving the EU with ‘no deal’ is the worst possible deal for Britain and that it would do damage to our economy and trade. We will reject ‘no deal’ as a viable option.”
So, it has taken that option off the table. And the Manifesto goes on to say: “A Labour approach to Brexit also means legislating to guarantee that Parliament has a truly meaningful vote on the final Brexit deal (my emphasis).”
The consequence of Labour taking “no deal” off the table is that there are only two choices: leaving on the terms of the deal or Remaining. Labour’s Manifesto guarantees those choices to parliament. And guarantees them at a time when the final deal is known.
And here’s the thing.
If Parliament chooses now, if Labour MPs vote now, to allow any old Minister of the Crown to repeal the European Communities Act with no need for parliamentary control there will be no guarantee of a vote later. There will be no “truly meaningful vote” at all “on the final Brexit deal.” Indeed, there need not be any vote at all. Labour will be voting to break its Manifesto promises.
And there is no need for any of this.
Voting against giving a Minister of the Crown executive power to repeal the European Communities Act isn’t ignoring the referendum vote. Parliament can still choose to deliver Brexit. Once the final deal is known—which David Davis has said will be in October 2018—Labour and parliament can look at that deal. And parliament can then decide whether to have a meaningful vote on it.
Someone’s taking back control. That someone must be parliament.