The so-called “Great Repeal Bill”—the proposed legislation to transfer all EU law to UK law, and then create mechanisms for it to be progressively amended—has been published and, as many have pointed out (and expected), it represents a stunning power grab in the powers it grants ministers. Section 9, in particular, is deeply disturbing; and to illustrate this I want to suggest a scenario which I do not think is particularly extreme or unlikely.
Clearly, this bill will not pass without substantial opposition scrutiny and amendments. I want you to imagine that the combined forces of the Remainer MPs and those who desire to leave the EU but realize that to do so in the manner we are currently pursuing is suicidal. I want you to imagine that they force an additional provision that requires the final Brexit deal to be put to a referendum—a binding one, this time. I want you to imagine the wholly foreseeable circumstance that another year of plummeting standards of living, increasing prices, and demonstrations of exactly how utterly unprepared even the most ardent Brexiters have been for the process (EURATOM, anyone?) means that, by the time of the expected referendum, public opinion has turned decisively against Brexit.
And then Brexit Minister David Davis decides to invoke section 9. Here are the crucial parts:
9 Implementing the withdrawal agreement
(1) A Minister of the Crown may by regulations make such provision as the Minister considers appropriate for the purposes of implementing the withdrawal agreement if the Minister considers that such provision should be in force on or before exit day.
(2) Regulations under this section may make any provision that could be made by an Act of Parliament (including modifying this Act).
Subsections 9(3) and 9(4) limit the powers: they prohibit the creation of a new criminal offence, changes in taxation, making of retrospective provisions, and changes to application of the Human Rights Act 1998; and they limit the application such that new provisions cannot be made after Brexit day.
Now, it doesn’t have to require a foaming-at-the-mouth reality-denying Brexiter such as Davis to realize that the binding referendum enacted by our additional hypothesized provision would halt Brexit. Davis then, surely, would have a responsibility to issue a new provision, repealing the requirement for a second referendum, or removing the binding nature of it. The bill explicitly allows itself to be modified by arbitrary regulations of a minister, as long as the minister (and only the minister) considers the modification “appropriate for the purposes of implementing the withdrawal agreement.” Indeed, any braking, cautionary, or fail-safe provisions inserted to this bill as it progresses through the houses can, quite simply, be removed by the minister once the bill is passed as long as section 9 remains intact.
And it doesn’t stop there. Let us imagine that Theresa May is still Prime Minister (the most unlikely part of my scenario, I know), and has one of her regular hissy fits in which she threatens to tear up the Human Rights Act when it doesn’t let her do exactly as she wishes—in this instance because she foresees challenges to the withdrawal under it. Let us imagine that she realizes that she will never be able to pass a Finance Act implementing her proposed taxation changes to handle the economic disaster of withdrawal—massive reductions in corporation tax and bundling the consequent cost onto ordinary working people—and so decides to instruct the minister to repeal the Human Rights Act, and amend taxation accordingly. Well she can’t, can she? Subsections 9(3) and 9(4) prohibit this.
But they don’t prohibit the repeal of, um, subsections 9(3) and 9(4). And, once again, the bill explicitly allows itself to be amended.
Andrea Leadsom—she for whom “patriotism” is equivalent to “not questioning the government”—wants to criminalize speaking out against withdrawal? No problem: delete the corresponding restriction and then create the offence. Boris Johnson foresees public uprisings against this arbitrary use of power following withdrawal and wants to get out those unusable water cannon he squandered £320,000 on when Mayor of London? Again: no problem, as long as the removal of the sunset clause is done before Brexit. Cancel the Fixed Term Parliaments Act under the specious claim that the country needs a “stable period” following Brexit of one government lasting, let us say, 10 years? Easy as pie.
Anything the Brexit minister wants, as long as they “consider” it necessary for withdrawal, they can have. This is, quite simply, a recipe for arbitrary and unrestricted rule. Far from Brexit returning power to the people as its proponents banged on interminably about when they weren’t simply lying, it appears Brexit is, quite simply, to be enacted by fiat.
There is a word for this: autocracy.