The Great Repeal Bill will become the Great Self-Rewriting Bill

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.

Nice continent you’ve got here…

Not content with using the livelihoods of four million Europeans living in the UK as a bargaining chip, Theresa May appears to have upped the ante and decided to threaten withdrawal of security co-operation with the EU as a negotiating stance in her Article 50 letter. It brings to mind an image of an inept gangster, wandering through the EU, saying in loaded terms and a dodgy fake Italian accent: “Nice-a continent you got-a here. Would-a be a shame if anything were to happen to it…” [“Accidentally” pushes Luxembourg off a cliff.]

Just as with her refusal to guarantee the position of EU citizens in the UK, Theresa May was attempting the posture that she is negotiating from a position of strength. The threat has also spectacularly backfired: partly because, of course, we are not negotiating from a position of strength at all: the EU will offer us terms and we will accept them or face the economic suicide of trading solely under WTO rules; and partly because it is a staggeringly callous threat to make: to endanger not just the livelihoods but the actual lives of the entire EU—and of course her own citizens, as a withdrawal of co-operation would be mutually imperilling.

For the record, here is the relevant passage of the Article 50 letter:

The United Kingdom wants to agree with the European Union a deep and special partnership that takes in both economic and security cooperation. To achieve this, we believe it is necessary to agree the terms of our future partnership alongside those of our withdrawal from the EU.

If, however, we leave the European Union without an agreement the default position is that we would have to trade on World Trade Organisation terms. In security terms a failure to reach agreement would mean our cooperation in the fight against crime and terrorism would be weakened.

David Davis has been rolled out to claim that this was not a threat, but the Sun certainly thought it was, triumphantly declaring YOUR MONEY OR YOUR LIVES—the Sun, it would appear, approves of threatening the lives of Europeans, though imagine the raging indignation they would have manufactured should the threat have been the other way round.

Here’s the thing though. That certainly looks like trade-with-menaces. It certainly sounds like Donna May is accidentally-not-accidentally nudging Luxembourg towards that cliff-edge. If that wasn’t the intention—and given the nine months that the government has had to draft the letter—then one despairs at the skill of our negotiators, carelessly making assertions that read, for all the world, like a direct threat. If a simple six-page letter can contain such a thoughtlessly worded passage, what hope for the detail of the negotiations? And what hope for the many, many further negotiations that Great Global Britain will have to make?

An awkward conversation

“Hi, this is Recep Tayyip Erdoğan. Could I speak to the Foreign Secretary please?”

“Ah, yes. Ah. That would be me. Boris. Fluster, fluster, affable grunt.”

“Boris Johnson?”

“Um, yes. The very same.”

“Boris Johnson, the journalist who first came to national attention for being sacked from The Times for making up quotes?”

“Yes, well, um, fluster, fluster. These things happen. But I’m very affable, and so let’s just forget about that, shall we? Thoroughly honest chap now.”

“But weren’t you also sacked by Michael Howard for lying about one of your many affairs?”

“Um, well. You know. Matters of sex. Keep it private and all. Not in the public interest.”

“Speaking of sex, didn’t you write a poem about me having sex with a goat?”

“Well, um, you know, defence of freedom of speech and all that.”

“Well you didn’t seem so keen on freedom of speech when you discussed with your friend Darius Guppy—a convicted fraudster and self-confessed ‘potential psychopath’—having a journalist beaten up for taking too close an interest in his dodgy dealings.”

“Ah, well, bluster, bluster, that was all a very long time ago…”

“Ah.” [Long pause.] ”So, do you think that freedom of speech extends to politicians blatantly lying to their voters? Because your fellow Brexit campaigner Penny Maudant repeatedly stated on the Andrew Marr show that there was nothing the UK could do to stop us, Turkey, joining the European Union despite the fact that the Treaty of Europe clearly states that accession to the union must be approved by all member states, and you condoned this and repeated the inference that Turkey’s accession was a certainty.”

“Well, um, I’m sure there’s some explanation which, if I fluster charmingly and affably you’ll think I’ve made when I’ve actually said nothing.”

“I’m afraid I don’t see your charm, Mr Johnson, nor your aff. Perhaps it’s just an English thing. Maybe you could clarify something for me. We’re not in the commonwealth, so I was wondering, do we count as piccaninnies or not?”

“Ah, um. Well. How about if I just flick about my blond hair amusingly?”

“I think we’re probably not, because wasn’t your great grandfather Turkish?”

“Um, well, yes the old boy was now you come to mention it.”

“And didn’t you once make a documentary lauding Turkey’s desire to join the EU?”

“Well now, yes. But, you know. Things change. Um. Realpolitik and all that.”

“You mean you thought you could get to be PM if you hung all your principles, your colleagues, in fact your entire country out to dry?”

“Oh, now, I say …”

“I don’t think I want to talk to you any more, Mr Johnson. I think you’re dishonest, dishonourable, bigotted, and solely interested in your own advancement. I think you’re a really nasty piece of work, in fact. I mean, you’re not in my league, that’s true. But for a British politician, you really are a quite a shite. So. I wanted to negotiate our post-Brexit trade deal. Perhaps you could put me through to Dr Liam Fox, I understand he is the Secretary of State for International Trade.”

“Phew, yes. That’s me off the hook.”

[A pause.]

“Hello?”

“Hello, am I speaking to Dr Liam Fox, Secretary of State for International Trade?”

“Um, well, he’s not available at the moment. This is a highly experienced trade negotiation consultant acting for him.”

“Ah. Could I have your name please?”

“Why, yes. It’s Adam Werrity.”

“Ah. And exactly how long have you been a highly experienced trade negotiation consultant?”

“Oh, since Wednesday.”

[Click.]