The government's publication of a Brexit White Paper establishing a high level, if vague, overview of its vision for a post-Brexit Britain provides welcome clarity on its key negotiating objectives.
In practice, however, the extent to which the government will be able to deliver upon these goals will rely not only on the outcome of the negotiations, but more fundamentally upon the extent to which the UK is prepared to maintain and replicate agreed legal frameworks across the range of areas over which the EU currently retains legislative competence.
Enter the proposed “Great Repeal Bill”. Across a vast range of areas, from national security to the environment and from pensions to consumer protection, the Bill presents an opportunity for Parliament to reshape the United Kingdom’s legal, regulatory and political landscape for decades to come, to re-craft virtually every facet of British democracy and to perhaps even redefine society itself.
But disentangling the UK’s laws from those of the EU, dual-bodies of law which have effectively co-mingled, developed and operated in tandem since 1973, is likely to prove one of the most complex and contentious legislative tasks ever embarked upon by Parliament. That it may have only two years within which to complete the task should raise questions over the robustness of the democratic process.
As a practical matter, there is unlikely to be much time for the level of parliamentary scrutiny that such a fundamental re-writing of our nation’s legal and regulatory framework surely demands.
Is Parliament capable of meeting this task? Its limited bandwidth while it attempts to divide its time between Brexit and actually running the country will certainly pose difficulties. Allied to the meek and ineffective opposition provided by Jeremy Corbyn’s disjointed Labour Party, the prospect of an effective free-hand being granted to the government appears unavoidable.
Adding further complexity is the extent to which this process will be dictated by the progress of the exit negotiation. With decisions being made at the negotiating table in Brussels being delivered to Parliament as a fait accompli, to be codified into the law as a means of giving effect to the deal being struck by government negotiators, Labour MPs, terrified at the thought of being denounced as “wreckers” or “enemies of the people”, will likely face overwhelming pressure to wave government proposals through.
In many areas, MPs may not actually have a chance to demonstrate even the merest pretence of providing proper scrutiny. The sheer volume of legislative amendments required and the expedited timeframe in which to implement the agreed exit agreement will inevitably dictate the use of so-called “Henry VIII” clauses, allowing the government to subsequently amend the bill and, with it, many of the new laws enacted to replace their EU equivalents without further parliamentary scrutiny.
If a desired corollary of Brexit was the reclamation of parliamentary sovereignty as a means of recasting Britain as an independent, self-governing nation, it is perhaps ironic that doing so will require the wielding of virtually unchecked, unaccountable and, arguably, unelected executive power.