I am most grateful for the kind invitation that has been extended to me tonight to give this talk, particularly as it looked just before Christmas as if it might not happen at all as the date chosen clashed with the Report stage of the EU Withdrawal Bill. But we have survived this problem and the Report stage itself. As the Bill goes to the House of Lords this certainly seems a good time to pause and consider its implications for Parliament as well as looking at Brexit more generally. I can’t deny that the last few months have had some strange moments-particularly finding myself, an ex-Attorney general labelled a “rebel commander” and “a bespectacled Che Guevara”. All the more reason therefore to have a moment of reflection before the storms break on us once more.
There is of course nothing settled about Brexit on which to base some definitive commentary. Its final form and consequences remain wholly unclear. For nineteen months now we have seen the development of an unparalleled political and constitutional crisis. It has precipitated the fall of one government and contributed to the failure of another to get a coherent mandate for carrying it out. It divides families, friends, generations and political parties-probably members of this Society itself! It is also breaking apart the previous broad consensus between the mainstream political parties as to how the economy should continue to be managed. This can bring potentially profound change in our country’s relationship with both our own and the international legal order with consequences that flow from this both domestically and internationally.
In voting to leave the EU, the majority, in its repeated mantra of “taking back control”, was making some form of demand of the government and Parliament for a change in direction for the United Kingdom in respect of our participation in building supra national legal frameworks. The referendum was also a demand concerning what is expected of our unwritten constitution, which has become heavily entwined with the supra national frameworks the UK has helped to build. It is because Brexit has the capacity to affect so many aspects of our national life that it is such a fascinating subject. But in giving this talk I want to emphasise that this is a back bench politician’s personal view of a series of evolving events, not an academic’s analysis. I propose to start with what for me are the key underlying issues it raises and then look at how those issues are being played out at present in the debates taking place in Parliament.
It is a curious feature of our current debate on the future direction our country should take, that when one leaves to one side the economic arguments for and against membership of the EU and the catalyst of freedom of movement and immigration levels, there is one thing on which most participants agree-from Jacob Rees Mogg to myself- namely the importance of our Law for our country in reflecting, developing and protecting our national identity and wellbeing. But beyond that all is in contention.
My Brexiter colleagues have in varying degrees signed up to the view that EU membership undermines the sovereignty of parliament in a manner which is damaging to our independence and our parliamentary democracy and our system of Law. This certainly fits in with a national (if principally English) narrative that can they trace back to Magna Carta and the emergence of the Commons as a distinct body by the end of the 13th century. To this we can add Habeas Corpus and the Bill of Rights of 1689. It emphasises the exceptionalism of our national tradition which we can see recognised from a very early date. In the mid 15th century we have it celebrated by Chief Justice Fortescue in his “de Laudibus Legum Angliae” ( In Praise of the laws of England). There the use of torture is deprecated and trial by jury and due process praised and with it, its uniqueness to England. There is even an excellent section in it which might have been relevant to who had the power to trigger Article 50. “The King of England” he said “cannot alter nor change the laws of his realm at his pleasure”. A statute he said requires the consent of the whole realm through Parliament.
This narrative has proved very enduring. It places Parliament as the central bastion of our liberties.
But it can also be used merely as an assertion of power, particularly when the executive has effective control over parliament. In theory at least, our constitution is that the Queen acting with the assent of her Lords and Commons should enjoy an exercise of power unlimited by any other lawful authority. It is what allowed Henry VIIIth in his Act of Supremacy of 1534 to use parliamentary authority to coerce his subjects on matters of deepest conscience and belief. And when the struggle between the Crown and Parliament was resolved in the latter’s favour it is what gave us the 13 clauses of the Bill of Rights and created the powers and privileges Parliament enjoys today. It is with those powers that Parliament in 1972, at the behest of the then Conservative government, enacted the European Communities Act which gave primacy to EU law in our country. It was Parliament that chose to allow what is now the Court of Justice of the European Union to override United Kingdom Statute law and indeed allow the superior courts of the United Kingdom to do the same, so as to ensure our conformity with EU law in all areas in which the then EEC and now the EU has competence.
The justification for requiring that supremacy should be given to EU law by the Treaty signatories was the not unreasonable one that without it, achieving adherence to the treaties and convergence between the practise of member states in implementing EU law would be very difficult. But it is hard to avoid concluding that the requirement lies at the root of the feeling of powerlessness felt by sections of the electorate and reflected in the Referendum result. How often it was that I heard on the doorstep that people were fed up with being told what to do by unaccountable foreigners. This is despite the efforts of successive governments to try and mitigate the democratic deficit in respect of Directives and regulations by having them scrutinised before implementation in Parliament through the European Scrutiny Committee in both Lords and Commons. There have also been opportunities to do this at a collective level in the EU Parliament. But as in practise it has never enjoyed any democratic legitimacy among United Kingdom voters and its list system guarantees the detachment of MEPs from their electorates, it has been unable to act as any kind of public focus for challenging and holding to account EU decision making. There has also been a habit of successive UK governments to hide behind decisions of the EU as a justification for being unwilling to address problems raised by its own electors and for failing to highlight our own role within the EU Council of Ministers in framing most EU law. So I have never thought that we should be surprised that the EU has never been popular in our country.
But where the lawyer and politician in me parts company with the views of my Brexit supporting colleagues is in the extent to which they appear oblivious to the extent to which Parliamentary sovereignty is not and has never in reality been unfettered.
The very same sources of English exceptionalism that they celebrate contain within them the implication that even the sovereignty of the Queen in Parliament may have its limits. When Sir Edward Coke defied the King, he argued that his sovereignty was limited by rules of natural law and not just the need to govern through Parliament. He developed the idea of an “Ancient Constitution” coming from the Anglo. Saxons, reinforced by Magna Carta and now being subverted. This was of course myth but it had great potency.
The Bill of Rights in asserting the primacy of Parliament, also contains the ethos by which that primacy might be limited. If the accusation against James II in the Bill of Rights is that he sought to “subvert the Lawes and liberties of the Kingdom” -rather the same accusation as I hear levelled against the EU, then what if it is the government of the Crown with a parliamentary majority that seeks to do so-what Lord Hailsham called ”elected dictatorship”? On this the Bill of Rights and my colleagues are silent. The drafters of the Bill saw parliament as the upholders of rights and liberties not its subverters. But the topic has not gone away. It was raised by Americans in their Declaration of Independence, by the Chartists in the 1840s and the Suffragettes. It can be argued that in deciding to hold the United Kingdom’s first nationwide referendum in 1975 on whether or not we should remain in the EEC, Harold Wilson was accepting that the nature of the constitutional change that was taking place required something more than just parliamentary approval, even if it also sought to accommodate Labour Party dissent. Nowadays we are told that the referendum only legitimated membership of a common market not a European super state. But the constraints on parliamentary sovereignty that flowed from membership of the EEC were apparent even then. It might however have been better to have asked the opinion of the electorate again at the various stages of Treaty change since.
The truth is that EU membership although more important than any other international treaty to which we have adhered is not exceptional. Over more recent British history, but particularly since the end of the Second World War, we have embarked on policies that have developed and changed our laws, not just through domestic mechanisms but also through international engagement. Notwithstanding our pride in our sovereignty, successive British governments in the last two centuries have sought to make the World a better, safer and more predictable place by encouraging the creation of international agreements governing the behaviour of states. When I was Attorney General, I once asked the Foreign Office to tell me as to how many we were signed up. They were reluctant to go back beyond 1834 but since then they said they had records of over 13,200 that the UK had signed and ratified. Many thousands are still applicable and range in importance from the UN Charter to local treaties over fishing rights. Over 700 contain references to binding dispute settlement in the event of disagreements over interpretation. And with the passing years these treaties, be they the UN Convention on the Prohibition of Torture or the creation of the International Criminal Court have dealt not just with inter-state relations , but state conduct towards those subject to its power. So important has been this treaty making that the Ministerial Code, until 2015, referred specifically to the duty of civil servants and ministers to respect our international legal obligations at all times. This was then deleted by the then PM David Cameron, probably in reaction to being reminded of this point too often. But the deletion could only be cosmetic in its effect. The Cabinet Office had to admit it made no difference to the obligation. It is part of Lord Bingham’s eighth principle of the Rule of Law. If it were abandoned we would be sanctioning anarchy on the international stage. UK governments have, despite some lapses been pretty consistent in observing its principles. We are after all still in the midst of commemorations of the First World War, which we entered explicitly to honour our international treaty obligations to guarantee Belgian neutrality-what a then German Chancellor was happy to describe as a “scrap of paper”.
But that has not prevented us agonising and complaining over its impact particularly in areas where it places constraints on the United Kingdom’s right to legislate at will on domestic matters.
I don’t want to get diverted this evening by the history of our adherence to the European Convention on Human Rights and its incorporation into our law through the Human Rights Act. But I do put it forward as an example of an international treaty that has brought in its wake intense disagreements as to its value.
A reasoned examination tells one that its impact has been beneficial. Over the years it has produced a number of landmark decisions which have challenged and halted practices which were once considered acceptable in Western democracies but which would now be seen as wholly unacceptable by the overwhelming majority of the British public. Despite difficulties over the enforcement of some of its judgments, the Strasbourg Court can show that it has been instrumental in bringing about positive changes of attitude by public authorities with a long track record of serial human rights violations. Our support for the Convention and the Court has thus been a major achievement of British soft power on the international stage.
Yet for all this, my Party which supported its creation and the later right of personal petition is still hinting at a review, with the possibility of replacing the HRA with a Bill of Rights that might call into question our future adherence to the Convention. It is symptomatic of the discomfort a supra national court causes.
The EU too has had a major influence on rights. The legal order under the EU Treaties is of the greatest importance, since it provides the mechanism to ensure that the agreed rules governing the inter-action of nation states and European bodies are respected. As the product of an international treaty, the EU can only be effective and be seen to be legitimate if its own operations are considered to respect the letter and spirit of the Treaties that created it. Furthermore, the nature of the project has produced a requirement not only for there to be the supremacy of EU law over the national law of its member states in areas of EU competence, but also the creation of parts of that law by its central bodies without the need for any domestically generated primary or secondary legislation at all. It is obvious that such a source of law can operate abusively. It’s founders wished that EU law should further principles of democracy and the rule of law, including the principles reflected in the European Convention on Human Rights and other international treaties on social and economic rights to which all members are signatories, as set out in the preamble of the Charter of Fundamental Rights. But those general principles therefore need protecting . That is why they are now in a text in the Charter of Fundamental Rights which also covers the key obligations of member states in respect of the “Four freedoms” conferred on EU citizens in the Treaties.
It seems to me therefore to be rather ironic that the Charter should have been on the receiving end of so much vilification in the United Kingdom long before Brexit. I can see that criticism can be made of its use to claim rights that might be considered to fall outside the scope of the Treaties. I experienced this as Attorney General when I appeared in the Supreme Court for the Government in Chester and McGeoch in 2013 where an attempt was made to use the Charter to claim prisoner voting rights in EU elections. It is however noteworthy that this attempt failed. One can also see that the CJEU may be accused at times of applying the Charter and it principles in a manner which shows insufficient regard for the intention of the signatories. But the critics of the Charter’s existence ignore the point that without it and the general principles of EU law it embodies, the risk would have been much greater of seeing EU law being created or applied that did not respect the limits of the Treaties or interfered with fundamental rights and left individuals and legal entities without any means of redress. But recognition of these benefits has been lost in the repeated denunciations of the Charter as an alien document.
Furthermore on a practical level general principles of EU law have been the principal driver in recent years in promoting the development of equality law and social rights. It is due to EU law that there are rights to protection against pregnancy discrimination, to equal pay for work of equal value and to protection against discrimination at work on grounds of sexual orientation, religion and age. The Equality Act 2010 may be a piece of parliamentary legislation that would have been supported nationally in any event, but it owes its origins to changes brought about by EU law. It is noteworthy that despite some expressions of concern on the burden on business there has never been any serious resistance to these developments. And of course it is still happening. In the recent Supreme Court decision of Walker v Innospec, Mr Walker relied on a Framework Directive, interpreted in line with general principles of EU law of non-discrimination to disapply a provision of national law which restricted the extent to which same sex spouses could receive pension payments from pensions earned by their deceased spouse. At a political level I have not heard one word of criticism about this decision
Another example is the recent decision in Benkharbouche in the Supreme Court. It held unanimously that two provisions of the State Immunity Act 1978 were inconsistent with Article 6 of the ECHR, interestingly on the basis that those provisions went beyond what was required to give state immunity under customary international law. But the immediate disapplication of the legislation was because it also breached Article 47 of the Charter. Otherwise the court was left with only being able to make a declaration of incompatibility. At present I have not heard a word of protest at this decision either or of the fact that EU law has overridden a statute that appears on the court’s reasoning to have been unnecessarily restrictive in relation to our obligations under international law.
I have to accept, of course, that there are some of my colleagues in Parliament who take the view that, at most, the only human rights that should be protected are those in the ECHR and even then, some wish any rights protection to be purely domestic and not subject to any international treaty obligation capable of interpretation by an international court. As a Conservative I have always been cautious about the ability or desirability to widen the scope of fundamental rights and some economic and social rights place positive duties on the state that may in theory be important aspirations but are in practise hard to fulfil and involve a difficult balance between competing policy areas. They ought in my view to remain in the realm of politics not law. But that said, it seems clear that there have grown up in the last half century areas of law particularly around equality and privacy that are seen as fundamental rights by an overwhelming section of the public. So much so indeed that the present Government has been at some pains to emphasise that in leaving the EU, it is not its intention to diminish any of these rights currently enjoyed by UK nationals through the acquis.
The process of Brexit
I hope I may be excused this morning rather lengthy piece of scene setting but it seems to me that it highlights the intense contradictions in what is sought from Brexit that are now being played out in Parliament.
On the one hand Brexiters celebrated the referendum result as the necessary step to restoring Parliamentary sovereignty and nationhood-in Boris Johnson’s words our “Independence Day”. But we were then immediately told that Parliament’s new found sovereignty should not extend to legislating for or even just approving the triggering of the Article 50 process, as the people had spoken and nothing more was needed. It was argued by some that the government had been turned into the agent of the people and was required to trigger article 50 irrespective of how this might conflict with previous statute law or the consequences it might have for the acquired rights of the Queen’s subjects.
Now this to me was revolutionary. It ran entirely contrary to principles of constitutional law that in the words of Professor Dicey and as cited in the Miller case, “the judges know nothing about any will of the people except in so far as it is expressed by an act of Parliament and would never suffer the validity of a statute to be questioned on the ground of its having been passed or kept alive in opposition to the wishes of the electors”. It also runs counter to the key principle as set out by Sir Edward Coke in the Case of Proclamations of 1610 that the “King by his proclamation or other ways cannot change any part of the common law, or statute law or the customs of the realm”-a straight echo of what Fortescue has said 150 years earlier.
In fairness to the Government, it did not seek to argue that the holding of the EU referendum of itself gave it authority to trigger Article 50. It sought instead to contend that it was entitled to do this under the Royal Prerogative because its action was confined to our international relations and the domestic changes that might follow UK laws enjoyed under UK statutes were an incidental consequence of it, that Parliament had not expressly or impliedly restricted. The High Court rejected this argument as “flawed at a basic level” in Miller. The Supreme Court was rather kinder, but still held that statutory authority was needed. I confess that I see this outcome as one small bit of silver lining to the Brexit cloud, as the impact of the Miller judgment is the biggest boost to Parliament against the growth in power of the executive in the last century and will be invoked, I have no doubt, in other cases. It has provided a degree of clarity on the impropriety of seeking to use executive powers to undermine and remove the benefits and rights conferred by a Parliamentary statute. In the case of Brexit the consequences concern the future economic wellbeing and quality of life of British citizens. It impacts on private rights in areas such as intellectual property and data protection and that is all before one considers the rights conferred by EU citizenship.
But a glance at the news headlines and the response in Parliament might not have left one with that impression. Both High Court and Supreme Court judgments were accompanied by the vilification of the judiciary of a kind one might more readily have expected from a country sliding into tyranny. The irony is that far from the judgment inhibiting the Brexit process it gave it a structure where previously there had been every appearance of chaos. Not surprisingly, Parliament approved the legislation giving the Government authority to trigger Article 50. Strongly as I and many other members may believe Brexit to be a mistake, it has always been clear that if an advisory referendum is granted of the kind that took place then denying the result would undermine Parliament’s legitimacy.
The consequence of that trigger is now however with us and as some of us predicted it is proving rather complicated and makes the original Government notion that withdrawal could be done by principally using prerogative powers look all the more extraordinary.
Having just spent four months considering the EU Withdrawal Bill I have to start by applauding the skills of the Parliamentary draughtsmen and women who put it together. I don’t think I have ever seen a piece of legislation that conferred such power on the executive to change the law of the land by statutory instrument and where the entire structure was so closely interwoven that the same end could often be achieved by different routes. It is the dream of every Government but, as Lord Judge has identified, it also constitutes the biggest threat to the integrity of our Parliamentary democracy. Yet with Article 50 triggered it is also vitally necessary that it is enacted. Only an anarchist hellbent on celebrating chaos on the morning of the 30th March 2019, would wish to see it fail.
The principal problem is that the Government did not know and still does not know exactly what it needs from this legislation or indeed what it wants from Brexit itself. It claimed its intention was to convert and entrench EU law into domestic law to ensure legal continuity.
But a detailed reading of the Bill suggests something rather different. Thus EU Directives implemented by either primary or secondary legislation, to be known as “EU derived domestic legislation” (clause 2) ; EU Regulations referred to as “direct EU legislation” (clause 3) and directly effective provisions of EU law (clause 4) are indeed retained in so far as not replaced by primary UK legislation. But at the same time, the Government is then excluding the Charter of Fundamental Rights which is not to be part of domestic law after exit day (clause 5(4)), nevertheless allowing general principles of EU law to survive, along with the ability to make continued reference to the Charter, in so far as it is necessary to interpret retained EU law. The principle of the supremacy of EU law continues post exit day but only as regards laws enacted prior to exit day or modified after exit day, where the modification clearly intends to preserve that supremacy (clause 5(1) to 5(3)). But Schedule 1 Clause 3(1) made clear that from exit day there will be no right of action in domestic law for any failure to comply with any of the general principles of EU law. These general principles are nowhere defined. Clause 3(2) then states that after exit day “ no court may disapply, quash or decide that action is unlawful because it is incompatible with general principles of EU law”.
The Government thus intends to reduce both the Charter and general principles of EU law to no more than interpretative aids to retained EU law. The protective rights previously provided to challenge any abuse arising from the operation of EU law evaporate, leaving only the possibility of a challenge under the Human Rights Act. Only as the debate on the Bill has progressed has the government provided a justification for this, explaining that it would be wrong, as we are leaving the EU, to allow any element of judicial supremacy inherent in the way EU Law has operated to survive, as it offends the parliamentary sovereignty we are supposedly restoring. The alternative of allowing our own Supreme Court to fulfill this role, after exit day and pending replacing EU Law with domestic law has been dismissed.
It is the anomaly of the result that troubles me. One of the principal complaints concerning EU law is that it was either forced on Parliament, which has been obliged to enact statutes or statutory instruments, as necessary, to meet the EU ‘s requirements or worse, has been directly imposed on us by the Commission acting on the authority we surrendered to the EU in the Treaties. Furthermore to try to maintain predictability we are preserving its supremacy in relation to pre Brexit enacted primary domestic legislation. As noteworthy we are treating all Direct EU legislation as Primary for the purposes of the Human Rights Act (Schedule 8,Clause 19) even though a lot of it has the character of secondary legislation and is technical-there are 615 implementing regulations in the area of the environment, consumers and health protection alone. Implementing regulations are made by the EU Commission using delegated authority to implement EU measures and can therefore be argued to be similar to secondary legislation in the UK. Clause 19 of Schedule 8 has the consequence that at most such implementing regulations can be subject to a declaration of incompatibility. It may be many years before it is all replaced with new domestic laws. In the meantime those subject to retained law, have very limited means to challenge it. In a remarkable arrogation of power, Clause 1 (2)(b) of schedule 1 leaves open the possible creation of a right to challenge retained EU law for being invalid at the date of exit but only if the challenge is “of a kind described or provided for in regulations made by a Minister of the Crown”. I can think of no other example of an important legal right being created or denied in such a fashion by the executive.
The Bill also provides for some of the most extensive Henry VIII powers ever seen. In fairness to the government this is inevitable in order to bring Brexit about within the time constraints under which we are operating. There are also sunset clauses for the use of Statutory Instruments. But it does mean that important primary legislation such as the Equality Act could be amended by this method within the permitted period. Last but not least, there was Clause 9, which allowed the Government to start enacting Statutory instruments to take us out of the EU in furtherance of a Withdrawal Agreement even before we know what its is, including changing any part of the Withdrawal Bill itself.
The complexity of what is being attempted creates uncertainty as to how the law will operate. It is not what Lord Bingham recommended in his first principle of the Rule of Law that : “the law must be accessible and so far as possible intelligible, clear and predictable”. One area in particular looks problematical. It is not clear what weight should be given to post exit CJEU authorities by our courts, assuming an intention by the Government to mirror areas of EU law to maintain compatibility, if this is what is wanted. I don’t find it surprising that members of the senior judiciary have expressed concern over having to make rulings on issues that may have great political sensitivity, as well as economic consequences, if the choice facing a court is between regulatory consistency or divergence between the UK and the EU.
It is on these matters that the debate both in Committee and at Report has been focussed. As a government backbencher I have at time been torn between logic and loyalty, so I do worry that we might have done more to improve the Bill, if we had been more rebellious. But politics is the art of the possible. But I don’t think the changes achieved in the Commons have been negligible.
Firstly we have stopped the mischief of Clause 9 in its tracks. I am sorry that this required me along with eleven Conservative colleagues to vote against the Government. It has inevitably appalled some of my colleagues and constituents, but I have no regrets on the matter. It has ensured a much needed preservation of Parliament’s role at the end of the Brexit process and compatibility between what the Government has promised-namely statutory approval of any Withdrawal Agreement and any SI powers that will then be used to implement it. I am entirely unpersuaded by the suggestion that the Clause 9 powers were needed now because of time constraints. If there is an exit agreement and insufficient time to implement it then a short Article 50 period extension will be in every one’s interest. This was why it was also important to curb the Government’s enthusiasm to put an obligatory date of departure in primary legislation without a swift way of altering it if necessary.
Second, I am grateful that the Government listened to the concerns expressed around the extent of the powers to remedy deficiencies in Clause 7, which was too extensive. The new wording is a significant improvement and a safeguard against this clause being used abusively.
Next, we have achieved an important step for parliamentary scrutiny in the amendments enabling a bespoke process to be set up for the SI’s that will be made under the legislation. The intervention of the Procedure Committee was key in getting this and I am very grateful for its work and that of its chairman Charles Walker. It does not reach the level of change sought by the Hansard Society and I am convinced that we will have to return to this issue in future to get a fundamental change to the Commons’ powers in this area. But it is a step in the right direction and should prevent the negative procedure being used in cases where it should not.
I am disappointed that I was not able to do more to persuade the Government to move further on the issue of the use of “General principles of EU Law to bring challenges to the operation of retained EU Law. I think it would be useful as a stop gap until Parliament and Government can consider what long term protection might be needed for rights, such as Equality Rights which will be left unprotected after exit. The logical approach, in keeping with our national tradition would be similar protection to that provided by the HRA, but this Bill is probably not the place to consider this. But the Government did move a little and its Amendment 1 and 2 at Report opens the door to some post exit challenge and concedes the principle of allowing this. I look to the Upper House to apply its skills to this issue.
With the help of my colleague Oliver Letwin I believe we have also persuaded the Government to bring forward amendments in the Lords to provide guidance as to how retained EU law is to be interpreted in our courts. This should help address the judiciary’s concerns on this issue.
Of course this still leaves hundreds of proposed amendments that were either rejected or never put to the vote. The Labour opposition sought to use the Bill to try and define the terms of Brexit and go much further than I attempted in the preservation of rights under EU law. The members from Scotland and Wales were rightly concerned about the return of powers from Brussels and the way Clause 11 prevents the devolved legislatures enacting any any laws thereafter to modify retained EU Law even if it falls within their area of competence. The Government promised amendments at Report which it says it did not then have time to prepare. This is indeed unfinished business. I deliberately refrained from tabling amendments on this but I am convinced that the government needs to show greater flexibility and appreciation of the realities of devolution-the view too of Scottish Conservative MPs. Most of the powers being repatriated could be safely left to the devolved administrations or to joint operation.
I want to put on record my thanks to the Commons clerks and particularly Liam Laurence Smyth for making the Committee and Report stage amendments accessible. With 500 amendments this was a nightmare of a Bill. For the first time as a Backbencher, after years of frustration with big legislation, the digital world enabled us to find them when needed, understand the groupings and when votes would be taken. If nothing else comes out of the Withdrawal Bill, this improvement to our procedures is very welcome.
Looking ahead, it is curious that the Bill may turn out to be largely redundant by the time we come to leave the EU. Assuming a Withdrawal agreement is reached by the autumn we will be going through another major piece of legislation in ten months time that is in practise going to replace most of what we are now doing. That of course is on the basis that Parliament approves such a deal first.
It is impossible to predict how the politics of this will play out in the intervening period but we can see what some of the major issues are likely to be.
As the Stage 1 negotiation showed, the idea that the referendum vote is giving us sovereign autonomy is misplaced. The issue of the UK-Irish border has at least in theory circumscribed the nature of our post exit relationship with the EU, unless we renege on the assurance we provided our EU partners that there would be no customs checks requiring a physical border. The fudge that enabled stage 1 to be completed must be followed by a detailed Treaty on the assurances we gave in respect of the Border. I find it hard to see how this will not mean staying in a customs union, making Liam Fox’s work redundant. I detect growing acknowledgement in Government that this is the case,
The Prime Minister has also recognised the importance for us as well as for the EU, of continuing to participate in areas of justice and home affairs including the European Arrest Warrant and the Schengen Information System. Then there are the agreements to manage Asylum applications contained in the Dublin Framework which have underpinned attempts at creating some order, in a complex and difficult field and enabled us to return a significant number of asylum seekers to other EU countries. Equally important are the civil law measures which include matters as diverse as high value commercial litigation and contact arrangements for children. The recast Brussels Regulations have created rules to ensure uniformity and certainty for litigating parties including the mutual recognition of judgments and their enforceability in member states including the use of injunctions. They have been of the greatest benefit in making the UK an attractive place to litigate.
The Government has shown every intention of wanting to remain in these arrangements and the possibility of doing this is reinforced by the fact that other non EU states have been able to participate in some of them. It is arguably, very much in the interests of the EU that we should continue to do so. But it is inevitable that this must shape the negotiations. And we risk in these areas ending up as observers. I see this as one of the most serious side effects of Brexit. As an example we have rightly indicated our concern about how EU Data Sharing law has been developing. We are enacting primary legislation to give effect to the new General Data protection Regulation of the EU, to which we have provided input, in a Data Protection Bill. But once outside the EU our ability to contribute to further changes will be gone. Although we will still be required to observe those changes in all data exchanges with EU countries and ultimately it will be the CJEU that will determine what is permissible and what is not. I wonder how all this will play out with the public when it becomes clearer how this will work.
We are also at sea as the the bespoke deal for our future commercial relations. If the PM can achieve what she set out at Lancaster House it would be a great achievement. The evidence suggests this will not happen. What will we then do to preserve market access for goods and services?
And finally there is that Transitional deal which is likely to be our short term destiny from March 2019. No change at all for a time, not even I now sense in agriculture and fisheries. Instead what Boris Johnson characterises as “vassalage”. It makes Mr Farage’s recent intervention in favour of a second referendum seem perfectly understandable. An attempt to return to the purity of his vision. The cliff edge followed by untrammelled sovereignty- at least for the length of time it takes for gravity or the sudden appearance of a pair of wings to determine where we are going.
“Taking back control’ is a powerful idea in conditions where the decline in general confidence in institutions both national and supra national has become such a marked phenomenon. But in an increasingly interdependent World what constitutes the benefit of exclusive control becomes hard to identify. The risk is that it is largely a mirage that leaves individuals in practice fewer opportunities to enjoy a good quality of life. It is also a uniquely disruptive form of change that precipitates the very reverse of “quiet government”, which we have long been enjoined to pray for and which the United Kingdom has traditionally aspired to deliver to its citizens. It should be no surprise therefore that in this atmosphere of crisis the principal change is the accrual of more power to the Executive. But that makes it all the more important that MPs, including ex attorneys general, should be vigilant that we don’t lose the very things which are the most valuable legacy of our forebears.
Dominic Grieve QC MP