Brexit: correcting errors

14/09/2016

From the sound of it, Davis has come a long way, but he still has an awful long way to travel, not least in understanding that ambitions such as the "return of control" are unrealistic.

In part explored in my Monday piece, I develop the theme further in Monograph 12, published today, pointing out that "control" as such is not only unrealistic but also unnecessary and also unwanted.

In short, no one really cares about the origins of legislation – certainly not the origin of much of the technical regulations which govern the conduct of our trading relations with other countries.

People tend only to take an interest when things go wrong and start affecting them personally. Then they – quite understandably – want things fixed. But as long as it is EU law – or rules emanating from "higher" global bodies – it is almost impossible for MPs to effect remedies. It is that, as much as anything, which contributes to their (entirely justified) feelings of uselessness.

At an international level, however, there are remedies - mechanisms for suspending or removing treaty requirements where, for diverse reasons, a contracting party finds conformity difficult or politically inappropriate. Most common of these are the so-called "safeguard measures" and waivers.

Either, when used in accordance with defined procedures, permits a party to remove themselves from part of a treaty (temporarily or permanently) without prejudicing the application of the whole.

What is intriguing is that these mechanisms could be used for certain categories of administrative laws of domestic origin. Ministers, by a resolution from parliament (requiring a minimum number of MPs), could be called upon to suspend any parts of any law, or even the entire law, if it was shown to be causing unnecessary harm.

This then leaves it open for the law to be repealed or amended, before the expiry of the suspension (and any extension that may be allowed).

At international level, we already see such provisions, especially in the WTO agreements where waivers are a commonly used device. Generally, waivers are regarded as safety valves, which defuse conflicts which might otherwise result in a member withdrawing from the agreements as a whole.

For the UK, to restore an element of parliamentary control, there seems no reason why the formal device of a resolution should not compel the executive to apply for a waiver, or invoke safeguard measures, where relevant to securing a remedy for a proven injustice or to prevent unnecessary damage to business interests.

This might be especially appropriate if the UK adopts the Efta/EEA option as part of the Article 50 settlement. With Article 112 of the EEA Agreement permitting an Efta state unilaterally to invoke safeguard measures, which have the effect of suspending any of the Agreement provisions, a system which enabled the national parliament to trigger the Article (albeit at one stage removed), would do much to restore the balance of power between executive and parliament.

It would also resolve some of the inherent tension between the increasing scope of international law, and the national legislator. The latter is being progressively sidelined by strengthening relationships between the executive and international standard-setting bodies. The resolution mechanism would reverse that tendency and put parliament back in control.

The adoption of the Efta/EEA option notwithstanding, the inclusion of waivers or safeguard measures as a core part of the Article 50 settlement, and any subordinate or consequential agreement (such as a free trade agreement) should be a minimum requirement, with a resolution mechanism built-in to the Westminster parliament's rules, permitting MPs to intervene in the interests of their electors, when they judge it is necessary to do so.

In this, course, we need to appreciate that control is relative. That much was evident from the crash of the new fly-by-wire Airbus A320-111 on 26 June 1988 during Mulhouse–Habsheim Airport airshow. A suggested cause of the crash was that the fly-by-wire system, which has the ability to override pilot inputs, misunderstood the unusual air show flight path and thus prevented the pilots from increasing engine power in order to climb and avoid impact with the ground.

When MPs and others, therefore, call for controls over UK laws to be restored to parliament, that degree of control is going to be relative. Parliament has never had total control over the creation and promulgation of law, or control over its implementation and continued existence.

What matters, therefore, is not control, per se, but the degree of control where it matters. For MPs, one might argue, the control has to be such as to allow parliament as an institution readily to intervene in the interests of constituents, and in general, so that they can maintain effective yet accountable government.

Clearly, across the broad sweep of law making, there is little interest in the formulation of the raft of technical standards that subsequently become law. One cannot imagine even the most strident advocates of representative democracy manning the barricades because a remote global committee decides that the sugar content of jam should be 60 rather than 53 percent.

Where parliament then might express an interest is when that standard materially affects the ability of a UK business to trade, for no good reason.

But, in instances when defects in laws become apparent – usually only after they take effect – there must be a method of redress. Outright repeal is often difficult and slow, so we propose in our latest Monograph and adaptation of safeguard measures and waivers.

Using these mechanism the way we suggest, parliament can be brought back into the loop, and take an active part on the protection of UK interests in areas where it is at present excluded. Fortuitously, such a mechanism could have equally utility in redressing that balance of power between parliament and the executive, in respect of the promulgation of UK statutory instruments.

We argue that such mechanisms would satisfy the demands for a return of powers to Westminster, with the merit of not interfering with the processes of global standard-setting which are so vital to the development and expansion of international trade.

Nor is the extent of such mechanisms confined to trade matters. It could be of great use in the more contentious areas such as immigration and security, where specific issues are mandated by international agreements.

In any event, no domestic laws or international agreements can be allowed to stand in circumstances where they are beyond the reach of ordinary citizens and their elected representatives, no matter what damage they might cause, or how inappropriate they are or have become.

Had the EU been conscious of that principle, and allowed it to take effect, the UK might be remaining in the EU. But Brexit will not automatically redress the balance. We need to be more sophisticated in identifying where the problems really lie, and in devising effective remedies.