David Davis MP, the Secretary of State for Exiting the European Union, has made a statement to the House of Commons concerning the Brexit process. He has done so amid mounting cross-party concerns about the involvement of Parliament in that process — concerns that his statement are likely to do little to assuage.
To the extent that it has any substance, the Secretary of State’s statement concentrates on the Great Repeal Bill. I have explained in another post why the title of that Bill is hopelessly misleading. The only thing the Bill will repeal is the European Communities Act 1972. Its repeal, which will only occur once the UK has left the EU, will be legally irrelevant: by the time the UK exits the EU, it will by definition have ceased to have relevant Treaty obligations, and the ECA will therefore not give effect in the UK to any EU law anyway. Meanwhile, far from repealing EU law, the Great Repeal Bill will in fact preserve all EU law (or at least all the EU law whose retention makes sense once the UK has left the EU) by converting it into UK law.
A question then arises about the political strategizing behind the emphasis that the Government is placing on the so-called Great Repeal Bill. The answer appears to be that the Bill, at the present stage, is nothing more than a distraction. The intention, it might be inferred, is to placate Parliament by seeking to convince it that it is being offered a meaningful role in the Brexit process. But the Great Repeal Bill only becomes relevant once the UK has left the EU. Parliament’s involvement in the enactment of that Bill will not (assuming the Bill is in the terms envisaged by the Government) give Parliament any opportunity to shape the negotiating strategy adopted by the Government or to pass judgement upon the fruits of that strategy’s implementation. As a result, the Great Repeal Bill addresses questions that, at this stage in the process, are far from pressing. It determines how the very final stage of the UK’s exit from the EU will be legally orchestrated, whilst telling us nothing about what the process will consist of or what the Government will be seeking to get out of it. Nor does the Government’s undertaking to introduce the Bill into Parliament tell us anything about the role that the Government envisages for Parliament in relation to the Brexit process. Against this background, it is difficult to escape the conclusion that the Great Repeal Bill is — at least in part — a smoke-and-mirrors exercise.
The question whether the Government has the legal authority to trigger Article 50 has so far occupied centre-stage in this context. That question is fundamental, and will be answered shortly by the courts. But there are broader, yet equally fundamental, questions about the role that Parliament should play throughout the negotiation process. Those questions go essentially unanswered both by the statement made by the Secretary of State to the House of Commons and by his answers to MPs’ questions on this point. The House of Lords Constitution Committee issued a report in September on these matters. It declined to take a position on the legal question whether the Government can trigger Article 50 without legislation, but reached the firm conclusion that Parliament should play a “central role”, not only in the triggering of the Brexit process, but in the “subsequent negotiation process” and “in approving or otherwise the final terms under which the UK leaves the EU”. That seems self-evidently correct. Indeed, the contrary view — that Parliament should not be closely involved in a process that will profoundly change the United Kingdom’s legal, constitutional and economic circumstances, bequeathing a legacy that will last for generations — is little short of absurd.
To the extent that the Secretary of State has an answer to this charge, it appears to consist in the assumption that the referendum invests the Government with a specific mandate to determine what the UK’s negotiating position — and, ultimately, the terms of Brexit — should be. But that view, of course, collapses as soon as the vacuity of the “Brexit means Brexit” mantra is confronted. And herein lies the danger of referendums. They purport to supply democracy in its very purest form. But they are open to misuse, particularly if they are considered to amount to a blank cheque that invests the Government with open-ended authority to act without reference to normal democratic processes. The Government’s view appears to be that those insisting upon close parliamentary involvement, including in relation to the shaping of the UK’s negotiating position, are acting undemocratically by thwarting the clear wishes of the people. But this overlooks the fact that those wishes amount to little more than a highly general view that the UK should exit the EU. To attempt to shut out Parliament on the ground that the referendum undercuts the democratic case for its involvement is as intellectually deficient as it is constitutionally dubious.