The Rough Wooing
The Westminster Parliament EU (Withdrawal) Bill provides invaluable illumination of the British problem of Brexit, and is a surprisingly transparent demonstration of Parliament’s limited power over the process. It is clear from the drafting of the EU (Withdrawal) Bill, that the United Kingdom does not possess the resources, expertise or capacity to undertake Brexit; save by falling out of the EU, mid-air, in freefall; and without a parachute.
The British Parliament does not posses the capacity to manage Brexit; the British Civil Service does not posses the skill, knowledge or expertise to oversee Brexit; the British Government, the political parties and the politicians do not posses the talent, competence or wisdom to provide the judgement to lead Britain out of Europe. These are the facts; and we know these are facts because it is only because they are facts that the EU (Withdrawal) Bill is drafted as it has been drafted (or could be conceived as it has been drafted), and presented to the public in this crass form. The EU (Withdrawal) Bill tells us candidly that the British Government and Parliament is out of its depth, and has given up attempting to use conventional means of Government, or rely on our established system of deliberation and vote; or on our essential parliamentary values to implement Brexit. Bexit will be achieved instead by arbitrary rule.
The EU (Withdrawal) Bill is a slapdash hodgepodge; a Bill thrown together like a hastily overpacked suitcase for a sudden emergency exit; it marks the surrender of sense and reason, and the despairing Government determination to fix the unfixable, through resort to very traditional, recondite, devious Parliamentary devices (Orders in Council, Statutory Instruments); the use of so-called ‘Henry VIII Powers’; that have been used by Crown or Governments, usually in desperate moments in our often abrupt, usually cynical and too often violent history; when authority has wished either to avoid scrutiny, or enforce arbitrary rule; this applies in both our recent and distant Parliamentary past. These devices were not designed to do anything on the scale of EU withdrawal; or for purposes so inextricably linked to our most essential liberties; they are not workable in the modern world, or for such vast enterprises; but they are the only ‘fix’ our intellectually bankrupt Government and Parliament can conjure at this moment, when they are bereft of sense or authority. In this invocation of a European ‘settlement’ the British people – as always – are the last to find out where they stand, but be in no doubt; the ordinary British people (the pensioners, the poor the payers of PAYE – the “mugs”) will pay the price. The EU (Withdrawal) Bill is a template for all the worst excesses, the most egregious anachronisms of deficient British Government. The EU (Withdrawal) Bill is a living fossil; and when enacted, this dinosaur is coming uninvited, unwanted but forcibly, somewhere close to you and your life, sometime soon.
Statutory Instruments are a form of ‘delegated legislation’. Henry VIII was a creative exponent of the species in Parliament. Lord Judge, the Lord Chief Justice of England and Wales, in a speech at the Lord Mayor’s Dinner for the Judiciary (13th July 2010) said the following:
“… my deepest concern at the moment is directed to the increased use of what are described as Henry VIII clauses.
Henry VIII was a dangerous tyrant. The Reformation Parliament made him Supreme Head of the Church, the representative of the Almighty on earth – which is as we know hardly an encouragement to modesty and humility: that Parliament altered the succession at his will: it changed the religion backwards and forwards at his will depending on which religious book he had read most recently: they were a malleable manageable lot. And there is a public belief that the Statute of Proclamations of 1539 was the ultimate in Parliamentary supineness. The Act itself was repealed within less than 10 years, immediately on his death in 1547. But it had allowed the King’s proclamations to have the same force as Acts of Parliament. That is a Henry VIII clause. It is perhaps worth emphasising that this famous Act, and this supine Reformation Parliament refused to, or was not persuaded to, agree that proclamations alone could prejudice any inheritance, office, liberty, goods, chattels or life. It was subject to those limitations.
You can be sure that when these Henry VIII clauses are introduced they will always be said to be necessary. William Pitt warned us how to treat such a plea with disdain. ‘Necessity is the justification for every infringement of human liberty: it is the argument of tyrants, the creed of slaves’.” (Excerpts quoted from, “Henry VIII clauses Fact sheet”: Standing Committee on Justice and Community Safety; Australian Capital Territory Legislative Assembly, November, 2011; Stephen Argument)
Henry VIII clauses are the argument of tyrants, the creed of slaves.
From a Scottish perspective the reference to Henry VIII powers is especially telling. Henry VIII preceded both the Union of Crowns and Union of Parliaments, but notwithstanding the limits of his jurisdiction this was no bar to his determination to extend the exercise of his arbitrary power to Scotland. Henry VIII’s idea of negotiating with Scottish interests was to invade Scotland with an army; and the Scots, in the laconic, dry humour of the cruel times that followed, described his Tudor political methodology as the ‘Rough Wooing’. We need little sense of imagination to ‘catch the drift’ of the Rough Wooing’s likely content. The present British Government and Westminster Parliament may have no power to manage or control Brexit; but the point of the EU (Withdrawal) Bill is to demonstrate that they still have absolute power over their natural, captive vassals in Britain; including Scotland and the Scottish people. The EU (Withdrawal) Bill uses a different methodology to Henry VIII’s preferred activities; but you may nevertheless expect to receive some very Rough Wooing.
Appendix (for those who wish to undertake the soul-destroying prospect of reading the EU Withdrawal Bill, in search of illumination):
The EU (Withdrawal) Bill is unreadable. This is not unique to this UK Parliament Bill, but in this context standard drafting procedure in Parliament does not serve the most basic requirements of democracy; and we urgently require an informed democracy. The EU Bill therefore merely highlights the longstanding, deeply dysfunctional nature of our democratic institutions. The Bill is drafted using a spare form of abstract legal esotericism that may serve some lawyers, and provide somewhere convenient for the drafters to hide, but it is no service at all to the public. Of course, it is not intended to inform the public, because the last thing either Parliament of Government clearly wants, or can cope with, is an informed public.
In the ‘Newspeak’ terminology of Government apologists the Bill has three principal purposes; to repeal the European Communities Act 1972; to convert all EU law into ‘UK law’ (the metaphysical status of a single ‘UK Law’ is not entirely clear, but let that pass); and to create the powers required for the Westminster Parliament to change all these laws post-Brexit. It is perhaps appropriate that the Daily Telegraph (online, 13th July), eager to insinuate itself as the frankly improbable honest-broker of impartial judgement on Government intentions, inadvertently describes the purpose of the conversion process from EU law to UK law as being “to prevent a black legal whole (sic) after Brexit”. The wish was father of the thought; the EU (Withdrawal) Bill is indeed best described as a “black legal whole”. Even the Telegraph is obliged to acknowledge that “there are concerns that under so-called Henry VIII clauses, the Government will have sweeping powers to repeal legislation without parliamentary approval”.
From a Scottish perspective the importance of this Bill may be approached by following the impact of the Bill on the Scotland Act 1998. If Parliament wished to aid public understanding of its intentions it would provide a fully redrafted (‘pro forma’ post-enactment) copy of the proposed, amended Scotland Act 1998. What the Bill actually provides (following standard Parliamentary convention that frankly serves a quill-pen age now long gone), is only the bare changes to wording. This requires the reader to sit with both the EU (Withdrawal) Bill and the Scotland Act 1998, and then try and figure out the (perhaps deep) implications of every single word change. Even this is not enough. Take for example EU (Withdrawal) Bill ‘Devolution’, Section 11 ‘Retaining EU restrictions in devolution legislation etc.’ , section 11 (1) (b) [p.7], which requires the redrafting of the Scotland Act 1998, Section 29 (4) (a/b) [p.14]. Resort to the original Scotland Act 1998 does not actually provide the precise answer: the original drafting of the relevant clause has already been redrafted (22nd April, 2011) for the Treaty of Lisbon, and requires the wording of that amendment to be incorporated. I am reciting here the mere tedium, or is that rather reciting the (deliberate?) disincentives thrown as obstacles in the way of purposive public reading?
More usefully for us, the EU (Withdrawal) Bill 11 (1) (b), makes clear that the Scotland Act 1998, Section 29 (4) (a/b) is effectively redrafted as follows:
(4) (a): “an Act of the Scottish Parliament cannot modify, or confer power by subordinate
legislation to modify, retained EU law”: and (4) (c): “… also does not apply so far as Her Majesty may by Order in Council provide”.
The EU (Withdrawal) Bill is little more than a UK Government executive ‘ground clearing’ exercise (roughly on the scale of Scipio Africanus’ ‘ground clearing’ exercise in Carthage, which left not a single stone standing upon another), in order – we may reasonably surmise – for the British Government to govern by Statutory Instrument or Order in Council; effectively to govern, at its convenience, by arbitrary rule.