“The Ayes three hundred and nine, the No’s three hundred and five,” pronounced the Speaker, and a portion of the House erupted while the Brexiters sat stony-faced like Scrooge at a picnic.
The Government’s Brexit steamroller had been stopped for the first time.
Early on Wednesday morning, David Davis had written to Conservative MPs asking them to support the Prime Minister in the vote over Clause 9 of the Withdrawal Bill. At stake was – if you believe Dominic Grieve, who tabled Amendment 7 to that clause – the coherence of the Bill and the sovereignty of Parliament, or – if you believe the Government – the safe passage of Brexit. The Government always says this, and it is inflammatory nonsense. Facts will defeat Brexit before MPs do.
Dominic Grieve spoke truly about the sovereignty of Parliament. Theresa May had repeated ad nauseam that Parliament would have a “meaningful vote” on the final Brexit deal, but had obscured the timing of it and had boxed rather too clever on the meaning of “meaningful.” So, yes, this was about sovereignty, but it was also about trust, and it turned out that a tranche of her own MPs do not trust her.
Eleven rebelled. The amendment was won by four votes. This means that MPs will be able to vote on the final deal with the EU before it is signed (which is one part of the meaning of “meaningful”), and that their vote will be written into law. The Government had repeatedly said that that was what it intended. This was far from the truth.
Behind the legal phrases and the dry-as-dust abstractions of the Withdrawal Bill loom the Henry VIII powers, which I wrote about in The height of pavements (10 September). They are called that because they are essentially undemocratic and are ascribed – perhaps unfairly – to the monarch we love to deplore. They give a Government minister powers which properly belong to Parliament and allow her or him to exercise them in secret and without redress. Legislation passed in this manner is called “secondary legislation,” which is itself sleight of hand since it implies that it isn’t anything to worry about.
Clause 9 of the Bill invoked these powers in relation to Britain’s departure from the EU. It said, “A minister of the Crown may by regulations make such provision as the Minister considers appropriate for the purposes of implementing the withdrawal agreement if the Minister considers that such provision should be in force on or before exit day.”
“Regulations” is the important word. It means, not by statute. It means, not following debate in Parliament. It means it can’t be challenged. (Theoretically it can. But there has been one successful challenge in 38 years, so don’t hold your breath.) This was how the Government proposed to legislate for the most profound change that will affect Britain for generations.
Dominic Grieve’s remedy was brief and to the point. He proposed to add the words, “subject to the prior enactment of a statute by Parliament approving the final terms of the withdrawal of the United Kingdom from the European Union.”
This quiet formulation contains a lethal bite and the Government was mortally afraid of it. It was afraid of two words: “prior” and “statute.” “Prior” meant that whatever Grieve was asking for had to be done before the Minister pushed through any of his regulations. “Statute” meant that what he was asking for was a separate Bill, an entirely independent piece of legislation.
In a written statement on Wednesday, before the crucial vote, David Davis promised that the Government would not use the Henry VIII powers to implement any parts of the Withdrawal Bill until after the Commons had voted on it. He said that vote would “take the form of a resolution in both Houses of Parliament and will cover both the withdrawal agreement and the terms for our future relationship [with the EU].”
The trouble with this is that (a) Davis’s promise is not binding – Grieve wanted a legislative guarantee that the secondary powers would only be used after the vote – and (b) that a statute and a resolution are not at all the same thing. “A resolution would simply involve a yes/no vote on whether MPs approved the withdrawal deal, whereas statute means a bill – which would be amendable.” (Guardian, Politics Live summary, 13 December).
“The government is also promising a bill,” the Guardian summary explains, “but Davis says in his written statement the resolution would come first.” (My italics.) “Under his plan ministers would be able to start using sweeping Henry VIII powers …using a simple, binary vote. Under Grieve’s plan the bill, which would give MPs the chance to rewrite bits of the withdrawal plan, would have to come first.”
It emerges with stunning clarity from this explanation just what a sack of weasels this government is. It wanted to present Parliament with the take-it-or-leave-it option that it loves because it removes MPs’ freedom to think, and then rush the result into law by an archaic route that cannot be scrutinised. It called this manoeuvre “granting a meaningful vote” when it was the opposite of meaningful, pretended it would not do what it had every intention of doing, and perverted the natural uses of language to conceal what it was up to.
Naturally this was all about control, and not just control of the final process. Ken Clarke, in a masterly speech, pointed out that the amendment would affect “the tenor of the negotiations.” It would force the head of government to ask herself, as every other political leader in Europe would be asking, “Can I deliver to the House of Commons what I am thinking of conceding?”
It is obvious that any such consideration would not suit Theresa May’s book. However, until about half an hour before the division the Government still thought it would win. Then it was realised that the Whips had miscalculated, panic set in and a concession was hastily offered. It was insufficient, and much too late.
Theresa May had had a bumpy week. She had managed, somehow, to turn around the disaster with which the DUP presented her when it interrupted her lunch with Jean-Claude Juncker. The proposal on the Irish border concocted late on Thursday night was a fudge, but the EU accepted it in the cause of moving the talks on. Then David Davis, demonstrating a boast he had just made about not needing to be clever, announced that the agreement which Theresa May had just signed in Brussels was not legally binding.
The EU moved like a cat sighting a mouse. If the British Government regarded it as not legally binding, said Barnier, it would be made legally binding straight away.
Davis re-interpreted himself. It was his second narrow escape in a week. May, taking stock, might have thought that things could be worse: she hadn’t had to replace Davis, with luck she wouldn’t have to sack Boris for Irangate, and it was unlikely the inquiry looking into Damian Green and his computer would want to rock the boat. No wonder, with all this, she wasn’t thinking very hard about the steely resolution of Dominic Grieve and Anna Soubry.
The result was that, for the second time in ten days, she had to go to Brussels in sackcloth to endure the smiling company of Europeans whose overall grasp of the situation is far better than hers and whose patience she and her rabble of ministers are now close to exhausting. It is difficult to see what cards she has left to play.
And she will need cards. Stage two of the talks is going to be for grown-ups, and it’s not apparent that we have any. The EU wants to know what we mean by “Brexit.” Parliament will want to know, too. As Jonathan Portes points out in the Guardian (15 December), the drama involving the Brexit vote is not over. Wednesday’s passionate debate will lose much of its purpose if the deal voted on does not include the future relationship with the EU.
Portes asks why Parliament would want to reject the deal now agreed on any of the three initial topics (citizens’ rights, financial settlement, border), or the transition arrangement which is yet to be negotiated. He finds no reason, either because no further movement is possible, or MPs are content with the terms, or voting against the border settlement would solve nothing. But Parliament will certainly want a say on any post-Brexit economic integration with the EU, or a trade-off between single market/customs union access and the ability to negotiate free trade deals. Yet this is not something Parliament will be able to vote on when it gets its “meaningful vote,” says Portes: “by then it will be too late.”
The extreme tightness of the schedule for completing the talks was the only objection the Government was able to advance against Grieve’s amendment: his statute would take up time. Never mind that the main cause of the shortage of time are the weeks wasted by Mrs May’s election. Trade talks normally take years: these have no chance of being completed before 29 March 2019, although the EU thinks it may be possible to reach “heads of agreement.” Even that would be tight, and Theresa May has been trying to remove any flexibility with her foolish plan, now abandoned, to “enshrine” the time and date of Brexit in law.
And the Cabinet has still not met to discuss what its aims are.
Before the Government tables anything in Brussels for the phase 2 negotiations, says Portes, Parliament should insist on a proper debate on the future relationship. “Let’s settle the things we didn’t and couldn’t decide in the referendum. These are vitally important questions…”
As you approach the rapids, the water runs faster.
MPs will need to paddle very hard.
But we have to give them the paddle.