MPS must be allowed to improve the Brexit Bill – but not thwart it

Labour has moved beyond fair scrutiny into actively weakening our country’s negotiating position

Shortly after the General Election, I feared the new makeup of Parliament would prove toxic for Brexit. The Government, I thought, wouldn’t be able to pass laws either to implement Brexit sensibly or prepare for a “no deal” collapse in talks. The EU, seeing our dilemma, would offer Britain a dreadful, take-it-or-leave-it deal as the only alternative to crashing out.

I’m not quite as pessimistic as I was, but last week the Government ran into the first roadblock that I was worried about. It was forced to postpone its most significant piece of legislation so far, the EU Withdrawal Bill, after MPS tabled as many as 300 amendments. The Government now faces a hard reality: how can it pass the laws needed to implement Brexit through a Parliament dead set against it? To navigate its way through, it must engage not only in negotiations abroad but with its own MPS. That must involve concessions.

There are plenty of reasonable concessions it could make. The simple purpose of the Bill is to transpose into UK law all of the EU rules we have been obeying for 40 years – and to do it quickly – so that we don’t face a legal vacuum in March 2019. Without it, MPS would have to debate and vote upon some 20,000 measures in the next 18 months – clearly impossible.

However, in order to achieve its aim, the Bill has to do some rather unpalatable things. It gives the Government all sorts of unusual powers, like the ability to rewrite huge swathes of regulation without parliamentary scrutiny. Doubtless many of these powers will be needed because of the unpredictability of Britain’s talks with the EU. Our Government cannot negotiate certain important matters, like whether and how to cooperate on drugs regulation for example, if Parliament has preemptively nailed down an answer. It needs legal room for manoeuvre.

At the same time, there are reasons to be very careful when handing the Government what is effectively, in the words of Tory MP and former attorney general Dominic Grieve, “a blank cheque”. Power cannot be trusted to police itself. Acknowledging this does not amount to betraying Brexit.

In judging Parliament’s behaviour, therefore, it is very important to distinguish between those MPS and amendments whose aim really is to sabotage Brexit and those that are simply doing what Parliament is meant to do: scour the Bill for risks, excessive power-grabs, contradictions and legal ambiguities. Though I don’t agree with all of his suggested changes to the Bill, it seems that Mr Grieve’s activities fit into the latter category.

Among the worries he and others have expressed is that the Government is giving itself more power than necessary while removing people’s rights to challenge that power. For example, the Bill hands ministers the power to amend legislation derived from EU law without any scrutiny from MPS. That might make sense when adjusting supervisory processes for banks, but a lot of other laws are being swept up in the same category. One example is the 2010 Equality Act, which outlaws discrimination in the workplace. This is a controversial area in which to let a government rewrite the law without oversight.

Then there are the ambiguities. For example, the Government said it intends to transfer various EU legal rights and obligations into British law. One example is the EU state aid regime, which stops states from bailing out industries on a whim. The EU test for whether state aid is allowed is whether or not it distorts trade and competition “between member states”. It is impossible to translate this straightforwardly into UK law, yet the current Bill seems to attempt exactly that. By what method remains unclear.

Just consider the problems arising from such legal ambiguities. The first danger is that post-brexit Britain faces a gamut of lawsuits from companies or individuals arguing over what exactly the law means. But there is another, political danger that should concentrate Tory minds in particular.

Imagine that Jeremy Corbyn were to win the next election and find himself presiding over this legal morass. Various protections, like state aid rules, that have for years insured against a return to untrammelled socialist excesses might disappear just at the moment that voters hand power to a genuine Marxist. Only yesterday, Mr Corbyn was boasting that he is, as Phillip Hammond warned, an “existential threat” to Britain’s economic model. Should we really, for the sake of Brexit fervour, remove various safety features designed to check government power just as Mr Corbyn gets close to it himself?

But, while many MPS, including Mr Grieve, think Parliament should get a final vote on the Brexit deal, Labour’s policy goes further. Shadow Brexit secretary Keir Starmer has made it clear any deal Britain negotiates with the EU will always in his view be preferable to no deal. Labour will never, he says, vote to endorse a “no deal” Brexit.

There are two problems with this. The first, obvious one is that it sends the message that the EU can dictate whatever terms it likes, because our Parliament will swallow anything rather than let the Government walk away from the table. This is deeply unhelpful. The second problem is that Labour seems to assume that if Parliament rejects “no deal” it will effectively stop Brexit. In fact, since Article 50 has already been triggered, we have no idea what such a vote would do, but it would likely add to the legal chaos and ensuing economic shock caused by crashing out.

In reality, Labour’s position is entirely self-serving. It is using parliamentary procedure to state, pre-emptively: “Don’t blame me.” The party voted to trigger Article 50 and has been ambiguous about Brexit, but at the end of the process, it wants a chance to disown the whole thing. This would be legitimate party politics but for one shameful fact: it actively damages Britain’s negotiating position just when we need to show strength.

Brexit is a task of great complexity. There are bound to be corrections and amendments needed along the way. MPS should not be pilloried for doing their job. But those MPS who use their leverage to send political messages that damage Britain’s negotiating position should think long and hard about whose interests they are serving.