(A version of this piece appeared yesterday in Prospect magazine).
It is mere machinery, the proposed ‘Great’ Repeal Act.
It moves the debate on, as Faisal Islam wittily quipped, only from ‘Brexit means Brexit’ to ‘How Brexit means Brexit’. But it leaves unanswered the What: it tells us nothing about the shape our relationship with our European neighbours will come to take.
One might, warming to this theme, come to see it as a purely technocratic exercise in advancing to today a step that would otherwise be taken tomorrow. The European Communities Act 1972 – which translates into our domestic law the rights and responsibilities we derive from the United Kingdom’s membership of the EU – would need to be repealed anyway. And the Repeal Act won’t take effect until we leave the EU. It does nothing now.
All of this is right. And yet it misses the true import of what Theresa May announced.
Writing on the Friday following the Referendum I expressed the view – one from which I have not shifted – that hopes for our remaining in the EU rest largely on how events are sequenced.
Voters, when they entered the booth on the 23rd of June, and in their unwritten ledgers of Leaving and Staying, priced up present resentments and discounted future costs. The passing of time, ran the argument, would cause them to re-mark their concerns to reflect the reality of life outside the EU. When investment stalled, and jobs were lost, and public finances were hit, and the promised NHS savings were reversed, voters would revisit their ledgers. Public opinion would turn.
This may yet happen. And those who have fought and won the fight to Leave know it. It is this that spurs their sense of urgency. That is why we must Leave now and the consequences of acting precipitately be damned.
Only when you see the battle to Brexit in these terms can you begin to understand why Leavers have argued for exactly this solution: a Repeal Act, adopted by Parliament now, authorising a repeal of the European Communities Act later, with that later being a point in time to be determined by Executive Order. Now the result of the Referendum provides an impetus for Parliament to act. Now a narrative around the damage that would be done to democracy by ignoring the expressed will of the people might cause Parliamentarians to decontextualize the result from the circumstances in which it was obtained and the opacity of what it means. But later? Later, who knows.
So repeal now, prospectively, and place the means of delivering that repeal beyond Parliament, in the hands of the First Lord of the Treasury: the Prime Minister. Parliamentarians are amenable to the pressure of the electorate. But with her moderate flank left unprotected by an opposition party shamefully absent from the most important event in the life of our nation, the Prime Minister is accountable only to her own Conservative MPs. A future change in the tides of democratic opinion could not rescue her from the demands of her own Party.
And yet, and yet, all is not lost. The Great Repeal Act is also a mighty throw of the dice by Leavers.
There is a world – a world that at the end of last week seemed possible or even likely – in which MPs had no opportunity to vote on Brexit until it was too late. Article 50 would be triggered, negotiations would ensue, we would agree terms of separation with our EU partners, our membership of the EU would cease and then, and only as a tidying up exercise, would MPs formally be asked to repeal what had already become the empty vessel of the European Communities Act. The array of rights that it had conferred upon citizens of the United Kingdom would have dissipated already. It was this world that the Article 50 challenge – which will be heard in the High Court later this month and the Supreme Court in December – was designed to head off. Triggering Article 50 amounted to a functional repeal of the European Communities Act, ran the argument, and a member of the Executive can’t repeal an act of Parliament.
But to deliver her Great Repeal Act Theresa May will have to persuade MPs to support it. To vote for an Act they cannot know the effect of.
It is true that the Great Repeal Act is a leap into the unknown. But to say this is to fail to do justice to quite how big a leap it is. There can hardly be an aspect of our national life that the EU does not touch upon. It is this that caused Theresa May to announce that alongside the repeal there will be a separate measure adopting as domestic law everything we currently derive from the Treaties. But even this does not do: for there is much of our law that must change when we leave: our membership of the Customs Union, our system of Value Added Tax from which we derive almost a quarter of all tax receipts, reciprocal healthcare and pension arrangements, and so on. What is to happen to all this?
So she will have to persuade MPs to support this leap into the unknown – and Peers too. If the Act takes the shape I understand it to, I believe the Salisbury Convention, which prevents the House of Lords from withholding consent to a measure promised in an election Manifesto, would not apply. And, although they are not a representative set, the members of the House of Lords I have spoken to are adamant that such an Act would not pass the Upper Chamber.
Most importantly of all is the opportunity the Great Repeal Act gives to an MP to table what a responsible Government would offer us anyway.
The binary formulation put to the electorate in the Referendum: “Should the United Kingdom remain a member of the European Union or leave the European Union?” skated over the many parallel universes offered up during the campaign: lower and not lower immigration, inside and not inside the single market, money spent and not spent on the NHS, retained and not retained regional investment and agricultural subsidies, and so on. Without clarity as to what the question we put to the electorate meant, how can we interpret the answer they gave us?
Even if, at this early stage, MPs and Peers feel unable to resist a prospective repeal of the European Communities Act, they may be persuaded to adopt a measure that gave the electorate the chance to choose between the relationship we have with the EU, and that which our Three Brexiteers manage to negotiate for us. A referendum on that deal: that would be what taking back control from an unelected Executive really looked like.