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.

In which Theresa May lies to the folk of Stoke

Here is a letter, signed by the Prime Minister, to constitutents of Stoke-on-Trent Central—the massively pro-Brexit constituency shortly to have a by-election:

Letter from Theresa May to voters in Stoke-on-Trent Central (from @LabourEoin’s Twitter)

It states:

Last week, Stoke’s two other Labour MPs and the Labour MP for Newcastle-under-Lyme all voted against my plan to deliver Brexit …

And here, from PublicWhip, are the votes:

  • Rob Flello, Stoke-on-Trent South, Labour: aye.
  • Ruth Meeth, Stoke-on-Trent North, Labour: aye.
  • Paul Farrelly, Newcastle-under-Lyme, Labour: no.

So, one out of three.

I suppose the question that remains is whether, when this direct lie has been exposed, the defence will be of the Paul Nuttalls “my girlfriend/press officer/aide done it” variety, or of the Kellyanne Conway “alternative facts” variety.

Either way, she has clearly learned a lesson from her new friend across the water: lie, lie, and lie again. By the time the reckoning comes, the seed you have planted will have already taken root.

Here’s an idea for MPs opposed to that visit

Here’s a thought. It’s protozoic at the moment, but who knows? It could flourish in the strange and pungent primordial soup that is world politics at present.

The so-called President of the United States  has been invited by our very own Theresa May over for a state visit and I, along with (at the time of writing) 1,845,812 other people, am very unhappy about this.  But it is clear that a concerted effort, and some novel protest techniques, will be necessary to overturn this. As she prepares the United Kingdom for its post-Brexit friendlessness, Theresa May is cosying up to quite a litany of odious and authoritarian world leaders, and the tiny-handed sociopath is a friend she dearly needs to prop up the fantasies of a powerful and autonomous Brexit Britain.

It is import to protest Trump, and not just for the benefit of Americans, the environment, or the wider world. As the Tory Party has capitulated to the hard right, we are hurtling towards a horrendous, morally-vacuous UK, establishing itself as a tax haven and friend of the oppressor. To protest against Trump is also to protest this direction for our own country.

The people can take to the streets—I urge you to do so—but what can our MPs—those at least who have a shred of decency, a backbone, and lack a propensity for conveniently-timed migraines—do to try and prevent this insult from happening? They could debate, call him a “wazzock” and a “demagogue.” Or they could take some action. They could attempt to pass an Act of Pains and Penalties.

Parliament is an old institution governed largely by custom rather than explicit rules—this, after all, was the issue at stake in the Article 50 case—and there are many functions and statutes which, though unused for a century or more, nevertheless have never been revoked. One of these is the ability to pass private legislation: acts affecting only specific individuals. An Act of Pains and Penalties is one type thereof which, basically, declares a named individual to be guilty of a crime (bypassing and supervening the courts) and imposes upon them penalties, short of death, as fits Parliament’s pleasure. A more serious type, the Act of Attainder, declares the subject “attainted”—stripped of their property, civil rights, and customarily, though not necessarily, their life. The last Act of Attainder to be passed was in 1798, and it is not clear to me whether Acts of Attainder have been abolished or not.  But Pains and Penalties lie, still, within the powers of Parliament: not that long ago, under the previous Labour administration, Harriet Harman raised the idea of passing such an act to strip the banker Fred Goodwin of his pension and knighthood, and the powers that be are not beyond unearthing antiquated and unrepealed statute and outdated common law when it suits them: especially when it comes to harassing refugees.

The consequence of a Bill of Pains and Penalties (or, going the whole hog, Attainder) against Mr Trump succeeding would be that any land that he personally has rights to in the UK would escheat (oh! these lovely antiquated words) to the Crown; but more importantly should he set foot on British soil he would be subject to any penalty that Parliament saw fit to impose; the traditional attainted penalty being that “you be drawn on a hurdle to the place of execution where you shall be hanged by the neck and being alive cut down, your privy members shall be cut off and your bowels taken out and burned before you, your head severed from your body and your body divided into four quarters to be disposed of at the [Queen]’s pleasure.” The pussy-grabber may have pronounced himself a fan of torture and appeared to be at best indifferent to politically-motivated killing, but I think we should probably fall a little short of this and see no need for full attaintion (attaintance? attaintment?): perhaps just a short jail term as a slap on his tiny, tiny wrist. Enough to discourage him from visiting, which would be the real purpose of the action.

It wouldn’t be passed, of course. The bill would have to be introduced to the Commons as a Private Member’s Bill and would therefore require an MP with both principles and backbone to do so—a pairing which the recent Brexit vote shows is in woefully short supply in that chamber—and, without government-appointed time, no Private Member’s Bill stands any real chance of becoming law. But, when the Speaker has already shown himself to be laudably independent-minded and principled on this matter, one has hopes that another MP might have the gumption to put such a bill before the house. Should a hundred of them support it then it could, at least, progress beyond the second reading.

Such an action on the part of those MPs who supported it would be a greater and clearer message to the government than a simple repeat of the talking-shop of (richly deserved) insults that was the last debate on Mr Trump entering these shores. Normally I would shrink at proposing the use of an antiquated mechanism that, were we to have a codified modern constitution, would almost certainly be precluded (as it is in the US itself). But when the gentleman in question is himself in violation of his country’s constitution both in action and mere encumbancy—it somehow doesn’t seem too egregious to attempt a process which is perfectly legitimate, but merely as medieval as his personal views.

So, who’s going to propose it? An MP of courage and conviction, un-leanable-on by the government. Caroline Lucas, perhaps, or the inimitable and awesome Mhairi Black. I suppose some old dinosaur like Ken Clark or Dennis Skinner might do the job too, but personally I would rather not see yet another old white man throwing their weight around, even if in opposition to another, far worse, old white and/or orange man.

Go on, Mhairi, Caroline! Make us proud that some, at least, in our legislature can take positive action to try to derail the government’s shameful and reprehensible cosying up to the vile creature currently squatting in the Oval Office.

  1. If a man who was unanimously elected, and who had thirty years experience in his field prior to his election, merits the epithet “so-called,” then I feel a man with precisely zero experience prior to his election, and whose vote deficit runs to the millions, certainly requires it.
  2. I signed the petition, of course, though its grounds were rather odd. Given that she has been married for seven decades to a man who routinely spouts the exactly kind of bigoted, racist, misogynist bile that Mr Trump does, and that she has never shown a hint of embarrassment at this, one wonders why Mrs Windsor would be expected to find Mr Trump so problematic.
  3. Some of the sources I looked at for this said that Acts of Attainder were discontinued as of 1870; however I think this is an error. The Forteiture Act 1870, which is the source, seems to abolish attainder upon conviction in a court; the whole point of an Act of Attainder is that it bypasses the court system.

The Act of Attainder (1536) against Henry Norris, one of those executed for purportedly conducting an affair with Anne Boleyn. From the Parliamentary Archives, HL/PO/PU/1/1536/28H8n43.