10/09/2017
Deducting the time needed to approve and ratify any agreements, we have effectively just a year left to conclude our Brexit negotiations. But,
writes Booker, only those who have spent years giving serious study to how the EU actually works have any real idea just what a shambles we are making of them.
After last year's referendum, Booker warned that extricating ourselves from the EU was like a game of snakes and ladders. Although everyone had at last woken up to the need to invoke Article 50 (which he first wrote about in 2012), doing so only landed us on square one of the board.
There were 99 more squares for us to navigate, with a few helpful ladders but many dangerous snakes. Only by using the ladders and avoiding the snakes could we get safely to square one hundred.
Since then, almost everything those responsible for our Brexit policy have done has involved dismissing the ladders and picking on every snake they could possibly find. Which is why, when they come up with all those vapid little "position papers", on issues like the Northern Irish border, Michel Barnier and his colleagues stare at them in ever more pained and astonished disbelief.
As the clock ticks down, it is clear the UK negotiators haven't the faintest practical idea of how to achieve what they say they want. We are risking total chaos, with the EU's borders being slammed shut, much of our trade crashing to a halt and no one having any idea of what to do next.
We are paying the price for the past 40 years, when our political class â and its attendant media circus â almost wholly switched off from trying to understand the real nature of the form of government we have become enmeshed with since 1973.
And this, says Booker, is yet again borne out by all the angry protests in the
second reading debate on the European Union (Withdrawal) Bill. MPs, particularly those in Labour, who argue that ministers are making an "unprecedented power grab", by taking on "Henry VIII" powers to make law by ministerial fiat, without giving any say-so to Parliament.
From reading
the Bill, however, it is clearly evident that what Ministers have in mind is no different from the provisions of European Communities Act which allows ministers to implement regulation in the UK.
In this case, though, the EU regulation is being converted into UK law which gives us regulatory continuity. However, as I've pointed out in several posts, it isn't as easy as that. The repatriated law must be adapted to make it workable, which in some cases will require considerable amendment.
Thus, there are additional powers built into the Bill to enable the appropriate amendments to be made and, in an attempt to soothe fevered breasts, the government has made a small concession by including a two-year sunset clause to these powers.
The intended functioning of the Act is explained in detail in
this publication. The Government, it says, "understands that there will be concerns on the breadth of the correcting power and the level of Parliamentary scrutiny", but puts "three principal reasons" why it has taken its approach.
The first is that, given the two year timetable for exit, it needs to be able to "act quickly and flexibly to provide a functioning statute book". Then it argues that making all corrections on the face of the Bill, at this stage, would not be practical and finally it claims that it needs the powers in order to deliver a functioning statute book for day one post-exit.
In order to deal with these issues, the government has decided to take the simplest route by adopting the existing systems with very little change. But, despite that, it is more than a little rich for politicians, who have been content to tolerate those systems for the forty-odd years we have been in the EU (and its predecessor organisations) to now start complaining about them.
As Booker writes, "how do those politicians think we have been routinely putting 20,000 Brussels laws into UK legislation for the past four decades?" It is, "by using precisely those same 'unprecedented' powers laid down in Section 2 of the very Act now being repealed".
"Yet again", he concludes, "we are seeing how the mesmerising spell of the EU has so turned their brains to jelly that the suicidally unworkable way we are trying to leave it could be heading us for an as yet scarcely imagined catastrophe".
That said, the system that has been in force for more than four decades is indeed terrible and is long overdue for change. In particular, the "negative assent" process for most regulations â where the law comes into force automatically unless there is a majority vote against it â is so laborious that it all but prevents any regulation being rejected.
The current procedure involves "praying against" a regulation(Statutory Instrument, or SI), leading to a pointless "consideration motion" which does not bind the government and does not automatically lead to a debate. And an absurd part of that system is the inability of MPs to introduce amendments, so that regulations either have to be accepted as a whole, or rejected in their entirety. This "nuclear option" effectively ensures that the government gets its way.
But, recognising the inadequacies of the system, the
Hansard Society has produced a report recommending fundamental improvements, covering the whole of the regulatory system involving delegated legislation.
Specifically, the Society argues that the process should be managed by a new scrutiny committee under the control of MPs not whips, with the chair and members elected in the same way as other select committees. It also wants thematic sub-committees, to deal with specialist areas, and the provision of administrative, legal and research support via a committee secretariat.
It also wants regulation to be subject to strengthened scrutiny procedures, enabling the scrutiny committees to turn over to the whole House for further consideration of those SIs of concern. Any SIs reported to the House would have to be debated and voted on. Members would be granted a "conditional amendment" power, alongside procedural hurdles designed to ensure that Ministers cannot ignore MPs' concerns.
As yet, I have not seen any opposition amendments and the
Parliament website is a frustrating closed loop, offering access to amendments which do not seem to be available. However, with the debate set to continue on Monday, Keir Starmer is says he is set to deposit amendments to the Bill.
One wonders how many of the opposition's voluble protests are just showcasing and how serious they are about improving a system that they have shown no interest in until now. The detail and extent of any amendments offered will be an important test. But if this is opposition for the sake of it, we will be no better off and a huge opportunity will have been lost.
