Revealed: the hidden political chicanery behind Brexit

Activists wave European Union and Union flags outside the Houses of Parliament in Westminster Photo: PA / Victoria Jones - Credit: PA Wire/PA Images

AC GRAYLING reports on the scandal of the behind-the-scenes parliamentary machinations being used to enable Brexit

In previous articles I have set out details of the inconsistencies, deceptions and failings of the UK government and parliament in relation to the Brexit process. For example: the prime minister rejects calls for a second referendum. Yet if her government loses a ‘no confidence’ vote in the House of Commons, it is protected by a requirement for a second ‘no confidence’ vote two weeks after the first to see whether anyone has changed his or her mind. The principle is that a second vote establishes whether the resolve expressed in the first vote is genuine, and has withstood the effect of second and wiser thoughts. To refuse the country a second referendum on Brexit, the demand for which rests on the same principle, is therefore a hypocritical double-standard.

Thus it is that the government can insist on second thoughts in hopes of own survival, yet the whole country is not allowed to have second thoughts regarding its survival, even when public opinion and demographics (to say nothing of the exposure of lies, breaches of electoral law, and suspicions of foreign interference) have undermined the credibility of the first referendum (and moreover a first referendum in which only 37% of the electorate voted Leave; don’t forget that it takes 40% of trade union members to back a strike otherwise the strike is illegal; and 66% of MPs to vote to have a general election – a nice high bar to protect their jobs.)

I want now to tell you of an even worse deception by the government, a trick it has played on the people of the UK which is so unconscionable that it cannot be allowed to stand without consequence.

In 2011, the eurosceptics in the Conservative Party persuaded the coalition government of Cameron and Clegg to pass into law a European Union Act imposing a ‘double lock’ on the UK in relation to any changes in the treaties of the EU. The intention was to prevent the UK being integrated any further into the EU without having to pass a very high bar of acceptance in the UK itself. This was the ‘double lock’: no acceptance of changes to EU treaties without both an Act of Parliament and a referendum of the people. Allow me to quote the relevant provisions of the European Union Act 2011 (where ‘TEU’ means ‘Treaty of the European Union’ and ‘TFEU’ means ‘Treaty on the Functioning of the European Union’):

(1) A treaty which amends or replaces TEU or TFEU is not to be ratified unless—

(a) a statement relating to the treaty was laid before Parliament,

(b) the treaty is approved by Act of Parliament, and

(2) The referendum condition is that—

(a) the Act providing for the approval of the treaty provides that the provision approving the treaty is not to come into force until a referendum about whether the treaty should be ratified has been held throughout the United Kingdom or, where the treaty also affects Gibraltar, throughout the United Kingdom and Gibraltar,

(b) the referendum has been held, and

This Act should apply to the withdrawal of the UK from the EU, given that a withdrawal alters the EU treaties and their effect on the UK. Therefore the ‘double lock’ that the eurosceptics had introduced to block further integration applies also to changing such treaties to effect an exit of the UK from the EU.

The Brexiters were horrified when they realised they had locked themselves in while trying to lock the UK out of further integration. The 2011 Act looked as if it was going to turn back and bite them, making it as hard to leave the EU as to change the UK’s relationship with the EU in any other way.

They had enacted a ‘double lock’ against themselves without realising it. After the 2016 referendum, any deal reached with the EU on arrangements for leaving it should, by the terms of the 2011 Act, trigger the requirement for a further Act of Parliament and a further referendum. This referendum would be the second referendum (the Peoples Vote) for which we are now campaigning as both a necessity and our right, to give our judgment on the Brexit process and the deal or no-deal emerging from it.

But what the Brexiters and government have done, quietly and without drawing attention to the fact beyond the purlieus of Westminster, is that they have repealed the 2011 Act so that those protective provisions no longer apply. They have started a process of changing the UK’s relationship with the EU and then, after doing what should trigger the 2011 Act’s provisions, repealed that Act so that it cannot stop their Brexit.

Surreptitiously junking the ‘double lock’ so that it cannot interfere with Brexit, after the process has started which should bring the Act’s provisions into force, is a dishonest expedient. It is a scandal. It violates the constitutional morality of our state.

It gets worse. The Act which repeals the ‘double lock’, namely the European Union (Withdrawal) Act 2018, has given ministers extraordinary dictatorial powers not seen since the days of Henry VIII, and they used it to open the ‘double lock’ that was inconveniencing them. Section 23(8) and Schedule 9 of the 2018 Act respectively ‘allow for the repeal of the entirety of the 2011 Act’ and, through the provision of s.25(4), gives the secretary of state discretion to decide at which time this would occur. So they could keep the 2011 Act in suspended animation in case it might be useful, by not implementing its repeal. In the event, and probably because of the growing swell of demands for a People’s Vote, the secretary of state hastily chose to implement the repeal with a stroke of his pen on July 4, 2018; on that day Regulation No.808 was signed (note! – Regulation No.808 was signed – no further debate or parliamentary oversight) abolishing the double lock.

In the House of Lords on March 19, 2018, Baroness Wheatcroft had invoked the 2011 Act to secure a ‘confirmatory referendum’ on the terms of any exit deal negotiated by the UK government with the EU – the precise point and meaning of the 2011 Act. She argued that ‘the people, and young voters especially, deserve the right to vote on their futures’ in the light of any such deal.

Wheatcroft and the amendment’s proposer Lord Wigley were persuaded to withdraw this amendment in hopes that the House of Commons would incorporate a version of the referendum lock in the Act. Of course the House of Commons did not. There are hardboiled Brexiter forces in and behind the scenes in parliament desperate to make Brexit happen.

One can only imagine the discomfiture of the Brexiters when they discovered that their clever ploy to interfere with the UK’s relationship with its EU partners threatened to lock them in instead of the EU out; but then, if you have your hands on the levers of power, in the deeply unsatisfactory and dysfunctional arrangements in our politics and constitution, you can just scrap inconvenient legislation at will, before anyone notices. This happened here.

Did you know any of this? Was the public informed? How many of us know what rights, protections, laws, provisions, are scrapped in the silence that cloaks what Westminster and the internally squabbling political parties stuffed with careerists is doing?

I repeat: this is a scandal and a disgrace, and you can judge the quality of our political order by this gross act of chicanery and expediency. When the Brexit debacle is over, we have to get to grips with our constitution and take it away from ready manipulation at the venal hands of politicians. We want to be ruled by laws and transparent institutions, by consistency and clarity, not by invisible political machinations. Repeal of the 2011 European Union Act is an egregious example of this latter.