14:27, December 14 323 0 theguardian.com

2017-12-14 14:27:03
Most of the Brexit rebels are lawyers. Maybe experts are useful after all

The government’s EU withdrawal bill is one of the most significant pieces of draft legislation in decades. Rushed into parliament without a draft text, it bears profound flaws. Such complex legislation, with such critical implications for our constitutional future, should not be decided by a hurried command from ministers.

The precise wording of it matters because the implications affect us all, and the rule of law is threatened by uncertain laws. As the House of Lords constitutional committee said in September: “The executive powers conferred by the bill are unprecedented and extraordinary and raise fundamental constitutional questions about the separation of powers between parliament and government.”

It was not particularly surprising, then, to see that the majority of the Tory rebels in Wednesday’s dramatic defeat of the government had legal backgrounds.

As Anna Soubry MP stated: “Most of the so-called mutineers are lawyers – we understand the importance of statute.” She added: “We raised this with the prime minister in September. We said we don’t want to cause trouble. We don’t want to vote against the government. Dominic Grieve is not some headbanger.”

Separating fact from fiction has not been straightforward among all the noise of Brexit, but our constitutional system must survive the sound and fury of the moment. Those who have sought to portray objections to the bill as attempts to block Brexit just add to the toxic haze of avoiding hard truths.

On the face of it, clause 9 of the bill – the subject of the vote – was an extraordinary power grab. However ministers have sought to dress it up, the words contained a sweeping power which would hand the government the ability to legislate to implement any withdrawal agreement without any need for a further act of parliament. Worse still, the clause contains a “Henry VIII power” which means it can be relied on by ministers to amend or repeal provisions in acts of parliament – including the withdrawal bill itself.

What Grieve did was to ensure legal backing to the “meaningful” vote which parliament was told by the government it would get. As Grieve pointed out in an eloquent speech, the extensive power contained within clause 9 appeared to be contrary to its own stated policy as to how Brexit is to be carried out, and so MPs were being asked to surrender any control over how the government conducted Brexit without any good reason.

Ironically, parliament surrendered most of its control when it triggered article 50 earlier this year, which commits Britain to leaving the EU on 29 March 2019 unless something happens to prevent or alter that before then.

Grieve’s amendment was about legal process and proper order. Put another way, it was about the strength and stability of our laws, and our constitutional arrangements. It was about parliament having some say – even if not dramatic sway – while reducing the government’s power to do almost as it pleases. As the House of Lords constitutional committee pointed out, there is a need for “appropriate balance between the urgency required to ensure legal continuity and stability, and meaningful parliamentary scrutiny and control of the executive”.

That MPs and journalists should be up in arms about this makes no logical sense. Especially when the reason for Brexit postulated by so many was to allow parliament to “take back control”. The European parliament will approve the deal negotiated by Britain and the EU27. So too should our parliament. Last night, Tory lawyers-turned MPs were among those who took the lead to ensure our legal future was stable beyond the expediencies of the political moment, whether that future is inside or outside the single market, the customs union or – as article 50 dictates unless revoked – the EU.

Many lawyers, among others, foresaw the massive difficulties of legislation to disentangle Britain from over four decades of its relationship with the European Union. They are unsurprised by the calamity of this bill which requires significant rewriting. Judges, looking back at recent headlines denouncing them, foresee a plethora of difficulties if clarity is not provided on the scope of the words. Consumer groups, human rights groups, trade unions and, yes, many lawyers are concerned about the effect on our social, economic and legal rights as a result of the language in this bill.

This bill is not about remain or leave. It is about the appropriate provision for the legal order that will follow Brexit. Those advocating we leave – including the government – are seeking to present exceptionally complex issues as simple binary choices. Sovereignty is complicated, however, whether in the context of a national or international legal order. It does nobody any favours to pretend the answers are easy. Experts, it turns out, do understand a thing or two. And experts were among those who stepped up to a challenge last night to give parliament back some voice. Hats off, Dominic Grieve and your fellow rebels. Let there be more.

Schona Jolly is an international human rights and equalities lawyer and writer