The government now proposes to enshrine the date of Brexit in law. This would be wrong and parliament will not approve itby Jolyon Maugham / November 9, 2017 / Leave a comment
On 13th July the government published the EU Withdrawal Bill. And it was immediately clear, to this writer at least, that, even in a Bill widely condemned for stripping power from parliament, there was one feature uglier than the rest: the date of any exit from the EU would not be decided by parliament—but by a minister of the crown.
Later that day, on the electronic pages of this very organ, I wrote:
“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.”
Over the course of the summer, as the hard Brexiters marched us up to the cliff-edge, peered over the edge, and even waved their arms in an experimental sort of flap, the notion that parliament should relinquish control began to appal MPs from both sides of the House. Because to allow a minister of the crown the choice about when to Brexit would be to deny to parliament control about how to Brexit or even whether to Brexit.
When finally, nine Tory rebels put their names to an amendment to help parliament take back control, the government’s number was up. So today, in an attempt to head off inevitable defeat, the government has just proposed that Brexit Day now be enshrined in the Bill: it will be 11pm on 29th March 2019.
But will this amendment do it? Will it head off a rebellion?
Reader, it will not.
It must be parliament that decides on Brexit. Huff and puff though they do, the Hard Brexiters cannot deny that parliament chose to enact a non-binding referendum and also chose to ask a question that said nothing about the shape that Brexit might take.
The question whether to Brexit and, if so, how are on any view momentous decisions for the country. They have yet to be taken by parliament. They cannot properly be handed over to any executive. But they certainly cannot be handed over to an executive that is hopelessly divided on the main issue of the day, comprised of a cabinet that changes every week, is ridden with the pox of sexual scandal, and backed by a party that does not have a majority in parliament.
And this is not just a matter of constitutional propriety. It is also just common sense.
Even the executive seems not to know what Brexit means. Time and again, David Davis, the treasury, his junior ministers and his department all asserted that government policy was being guided by over 50 weighty impact assessments. But several days ago he was forced to admit: “It is not the case that [they] exist.”
“This is not just a matter of constitutional propriety. It is also just common sense”
And even if they did, even if the government knew back in December last year, when David Davis first pretended the existence of the impact assessments, so what? Look around you. The world is changeable.
And here is the thing. No business charged with a decision of existential importance makes it earlier than they must. No business chooses to make it before the evidence is in. Every business waits as long as it can, gives itself the maximum optionality, awaits every last shred of evidence, before deciding how to jump.
Perhaps Boris’s sunlit uplands, with magical money trees producing a harvest of £350,000,000 every week for our shattered National Health Service, will yet hove into view. Then again, perhaps growth will continue to shrink, along with foreign investment, real incomes, business confidence, our critical financial services sector, the number of EU citizens prepared to work in the NHS, the value of the pound, our reputation in the international community and the chancellor’s fiscal headroom. Who knows?
No one knows. The government is not even telling us what deal it wants. So we cannot know whether there will, as David Davis promised, “be no downside to Brexit, only a considerable upside.” Or whether HMT’s forecasts—alongside those of every independent intergovernmental forecaster in the world—turn out to be on the money (their money, not ours).
And, really, that’s the issue. No one knows. Not now. Not today.
And if parliament committed now to a particular date it would relinquish all control. The executive would still be free—without further parliamentary intervention—to take us off a cliff should it be the case, for example, that sexual or other scandals fell more heavily on Remain than leave cabinet members.
And it would relinquish control—it would make the decisions—before the evidence was in.
This would be wrong. And I do not believe the House of Lords will approve it. And I doubt that the House of Commons will either.