Why there’s a bigger spectre than Brexit

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This is an opinions article by The People’s Challenge

The Politico article of Oct 23rd entitled “5 reasons why no deal could mean no Brexit” published in Languedoc Living, says that a spectre is hanging over Westminster, threatening “no deal, no Brexit”.

There is a spectre, but it isn’t hanging over Westminster.

Subsequent developments – the amendments tabled to the EU (Withdrawal) Bill and parliamentary debate on them have shown this. The spectre is hovering over the UK, rising out of Whitehall, considering when and how to suck the soul out of the country. Its divisive work is well under way.

The government is attempting to fool the UK (and to do the same to Parliament) into believing that it is for Theresa May and her acolytes to allow Parliament to have a meaningful vote on the exit deal, and indeed to control whether Parliament is allowed to decide if the UK leaves the EU or stays in.

It is not for the government to say what Parliament is allowed to do.

Although Theresa May & Co are apparently working hard to make it otherwise (see below), the UK is still a democratic parliamentary democracy.

Article 50 says that the decision to leave has to be in accordance with the leaving country’s constitutional requirements. That means that a decision to leave must be made by Parliament, NOT by the government. The court proceedings in which The People’s Challenge was involved forced the government to put the decision to trigger article 50 to the Parliamentary vote.

If the government tries to take the final “Leave” decision by itself, it will not be in accordance with the UK’s constitutional requirements. It will not be valid.

Furthermore, the vote in Parliament has to be about a known quantity in terms of a deal, or indeed the absence of one. This is part of what a “meaningful vote” is. Parliament cannot be required to vote on a deal which is not known, nor can it vote after the fact.

Thus it is not possible for the UK to “fall off the cliff” at the end of the Brexit negotiations – Parliament would have to push it. And if Parliament refused to do this, Article 50 would automatically lapse, and the UK would revert to the status quo ante, i.e. it would remain in the EU on the existing terms until such time as it decided to do otherwise. See the “Three Knights Opinion” for a fuller explanation of Parliament’s role.

Also, the Members of both Houses take an oath before taking their seats to act in the best interests of the country (see para III-6 of the MPs Handbook) .  Thus they are sworn to take careful interest in all the information emerging on the horrendous complexity of an orderly exit from the EU, the ever-mounting costs involved and the chances of retaining the elements (Single Market and Customs Union membership, for example) the UK wants and needs.

Brexiters keep pushing the idea that Brexit “must” happen, that if not there will be “revolution”.

But facts are facts: the costs of Brexit are going up all the time, the economic impact is already being felt, and the most significant benefits talked about by Brexit referendum campaigners evaporated almost immediately after the result. For example, far from there being “an extra £350M a week for the NHS” post-Brexit, people are now saying that the UK can have Brexit or the NHS, but not both.

Undeniably, things are not as they might have appeared before the 2016 referendum. And as David Davis (speaking in 2012) said, “If a democracy cannot change its mind, it ceases to be a democracy”.

Given the picture which is emerging, there is a need to focus on why Brexit continues to be seen as a good idea. We now know that it will cost a vast amount of money, we will lose many things we want to keep, and not gain things we were promised, like that NHS money, like being a global player in our own right with snazzy new trade deals worldwide. Even at the stage when we can try for them, the world is going to be far more interested in talking to the EU.

That’s what’ll happen, and why should we “get over it” and “deal with it”, unless leaving the EU actually is “What is Best for the UK”? “Because the referendum said so” is not the entirety of the answer.

But there’s a real threat of another cost that’s even higher. It’s a threat to UK democracy. Before you dismiss this as scaremongering, please read on.

Part of the government’s proposed legislation to prepare for Brexit involves obtaining the so-called “Henry VIII powers” and deleting the Charter of Fundamental Rights.

What are these two elements, and why are they so dangerous?

The parliamentary website gives this definition of Henry VIII powers:

“The Government sometimes adds this provision to a Bill to enable the Government to repeal or amend it after it has become an Act of Parliament. The provision enables primary legislation to be amended or repealed by subordinate legislation with or without further parliamentary scrutiny.

Such provisions are known as Henry VIII clauses, so named from the Statute of Proclamations 1539 which gave King Henry VIII power to legislate by proclamation.”

But the Henry VIII powers sought in the EU (Withdrawal) Bill enable the government to amend/repeal not only that Bill, but any and all legislation including the Acts of Parliament which establish our democratic rights and Parliament’s Sovereignty.

This is clearly not the same as what the Government “sometimes” does as explained above.

For instance, the government could use the powers in this Bill to extend the period between General Elections or amend the authority, and restrictions placed on that authority, which Parliament has given the government in relation to the UK leaving the EU.

Next, it is not necessary to delete the Charter of Fundamental Rights in order to transpose EU-derived legislation into standalone UK law. The most cursory of sanity checks confirms this.

The only conceivable reason for deleting the Charter is to remove the protections it gives. The government can then, without parliamentary supervision and control, reduce or remove legislative and regulatory provisions which protect ordinary citizens.

As Harriet Harman said (while she was talking about women’s rights, her point is valid across the piece), “You should never be complacent about rights which have been really hard-won. There are always people who want to turn the clock back”.

So why is this combination of Henry VIII powers and loss of fundamental rights so dangerous and sinister?

Deleting the Charter of Fundamental Rights from the UK’s Statute Book removes basic protections for ordinary citizens. This includes essential elements needed to protect some of the most vulnerable people in our society.

Once that happens, those seeking to tear down hard-won legislation and regulation protecting us from discrimination on the basis of race, colour, creed or gender can do so without parliamentary oversight and control, simply by using the Henry VIII powers contained in the Bill.

They can even roll back the Bill of Rights of 1689, where (for example) regular parliaments, free elections, and freedom of speech in Parliament are enshrined, to suit the government’s own interest. In effect they can impose an elected (at least in the first instance) autocracy.

This is a power-grab of monumental proportions.

The government says it won’t abuse the powers it seeks to grab, but why is it trying to grab them? Given the government’s penchant for secrecy and sleight of hand, why should any of us rely on its assurances?

Furthermore, future governments could retain these powers and would not be bound by any assurances given by individuals in the present government as to how they are to be used.

This government is getting into the habit of trying to take these powers: the proposed Trade Bill relies on extensive use of Henry VIII as well. Being outside the EU without a Charter of Fundamental Rights also gives the ability to trade freely with countries not unduly concerned with fundamental rights.

No prizes for predicting whether it will be after Henry VIII powers in the other Brexit-related Bills. But if it once obtains them in the form they take in the EU (Withdrawal) Bill, it’s “game over” – the government can ride roughshod as and where it chooses though the whole body of UK legislation.

We not only live in interesting times, they are also very disturbing times for anybody who is concerned about the state of democracy in the UK.

The imbalance of power between the UK’s Sovereign Parliament and the appointed government, which the latter is trying to reinforce, represents major interference with the checks and balances in the UK system evolved over many centuries of (often painful) experience .

Even something as important as Brexit is only the tip of a “Titanic” iceberg.