The next parliament must take its duties more seriously

The defeat of the programme motion that would have steered the legislation implementing the new withdrawal agreement was a decisive event that led to the general election being called.

The timetable would have put the bill on an accelerated path so that it would come into effect before 31 October. This timetable, we were told (not coincidentally by MPs who do not wish the UK to leave the EU at all), did not allow enough time for such a complex and important bill.

But was that true? Was additional time really necessary? The text of the withdrawal agreement itself is unchanged from the version agreed by Theresa May, except for the protocol on Northern Ireland. 

If MPs had been using the time available to them, in the absence of almost any other business in the house, to analyse those terms (which they had felt sufficiently well informed of to vote on three times already), they would have known what to expect in the bill.

Surely if MPs, with all their staff and the resources of the House of Commons clerks and library available to them, were intent on acting in good faith to ensure that the terms of the deal were properly implemented –without using it as a vehicle to add amendments that would have wrecked the bill entirely by departing from the terms agreed with the EU – this could have been done.

But, of course, this assumes both good faith and the capacity of MPs to read into and understand complex legislation, not just in a condensed timeframe but at all.

The records of most MPs throughout the Brexit process to date, including within government, show a poor grasp of the technical issues at stake and little interest in investing the time and effort in improving their understanding.

This surely rebuts one argument in support of Britain’s EU membership: that parliament always has been sovereign and that we always had democratic controls and accountability over EU laws through parliament holding the executive to account for its actions in the European council.

The Brexit process has revealed such deficiencies in engagement with and understanding of EU laws and institutions, including among some of the biggest supporters of EU membership, that this cannot have been the case. And some specific recent examples of EU law-making illustrate this further.

What influence did parliament have over the UK’s position on the recent copyright directive? How many MPs would even know what the government’s position was on that controversial and damaging piece of EU legislation as it made its way through the secretive trilogue process?

What scrutiny did MPs give the Data Protection Act 2018, the 335 pages long UK implementation and gold plating of the GDPR? Or of MiFID II, or any of the hundreds of other complex laws and regulations that successive governments agreed in the EU?

Many of these bypass parliament altogether and are directly implemented as regulations, further embedded by rules and guidance from the FCA and other regulators. 

As to the EU treaties themselves, yes, time was devoted to them in parliament. But who, apart from a dedicated band of Eurosceptics, took advantage of that time to actively scrutinise the Maastricht and Lisbon treaties and their impact on our laws and constitution? Famously, Ken Clarke proudly boasted that he hadn’t read the Maastricht treaty, even though he was a cabinet minister when it was agreed and ratified.

It’s clear that decades of EU membership, and the associated but not always directly linked accretion of rule-making powers to the executive, has steadily removed both the powers of MPs and the incentive for them to involve themselves in the complex and serious matters that should be their concern

Instead of holding government to account, MPs have been relegated to seeking out policy areas where they haven’t been deprived of a voice and can still have a role.

Unable to play a serious role in matters of trade, regulatory policy, labour rights, environment, competition law and all the other areas where the EU assumes competence, MPs have been pursuing ever-narrower concerns and ever-greater intrusion into areas that should not be subject of government intervention.

When Brexit brought vital and complex matters back to the Commons, the incumbent MPs found themselves unable to cope, illustrated most starkly by the use of external legal processes by one MP to overturn the prorogation of parliament.

Bringing back control to parliament does not mean handing the Commons procedural powers to undermine the government without the counterbalancing checks and controls that attach to executive action. It means giving MPs responsibility for the laws and regulations that are passed in this country.

Of course, much modern regulation is too detailed and granular to be subject to parliamentary law-making processes. But surely this is an argument to reassess the vast numbers of regulations and the reach of the regulatory state, rather than require more direct involvement of the very institution that has shown itself to be ill-equipped even for the tasks that currently fall to it.

Indeed, if it’s too complex and voluminous for MPs to be able to oversee and be held accountable for it, what chance do people going about their lives and businesses have?

Simply put, the inability of MPs to process complex legislation brings into question our whole system of lawmaking and regulation. Many of them clearly had no capacity, intention or desire to engage with the detail, no matter how long the timetable was – and yet we’ve routinely let them nod through thousands of regulations.

Let’s hope that the MPs who are elected in December take their responsibilities as lawmakers more seriously and embrace the real work of reading and understanding the laws that they’re passing, and not simply continue to empower ministers and regulators to produce ever more rules that limit our freedoms and prosperity.

Written by Victoria Hewson

Victoria Hewson is a member of Lawyers for Britain.
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