Labour tails Tory rebels
Calling the modern powers to revise statutes by regulations ‘Henry VIII clauses’ gives the whole Brexit exercise a spurious air of English antiquity, argues Mike Macnair
Last week, on December 13, the government suffered its first outright parliamentary defeat on the European Union (Withdrawal) Bill or ‘Brexit bill’, when Labour and other opposition parties backed an amendment proposed by former Tory attorney-general Dominic Grieve and other Tory ‘remainers’. Among Labour MPs, Frank Field and Kate Hoey voted with the government; other Labour ‘Brexiteers’ voted with their party to support the amendment.
The Brexiteer press duly denounced the 11 Tory MPs who voted for the amendment as ‘traitors’, ‘mutineers,’ guilty of ‘blackmail’ and so on, and Nadine Dorries called on Twitter for them to be de-selected: funny how de-selection is only an anti-democratic outrage when there is a threat of it happening to Labour rightists. These threats reached the point that they had to be included in home secretary Amber Rudd’s December 18 statement on harassment in public life, which was originally intended to target the Corbynistas, and the speaker John Bercow immediately followed Rudd’s statement with one focussing on the defence of the Tory ‘rebels’.1
Jeremy Corbyn said the defeat was “a humiliating loss of authority” for Theresa May.2 This is the small change of parliamentary rhetoric under a minority government. In reality, the defeat was bad publicity and inconvenient to the government’s plans for ‘time management’ in connection with Brexit. It ran slightly against the civil servants’, lobbyists’ and major political donors’ preferences for legislating through regulations to reduce public scrutiny. But a mass of Labour and other opposition amendments were defeated. The vote thus showed that Labour could be drawn in behind a Tory, if ‘remainer’, agenda, and cannot force the Tory ‘remainers’ to back any sort of Labour agenda.
Hence, more interesting are the underlying constitutional issues exposed by the vote - and, secondarily, the question why Labour winds up tailending Dominic Grieve, not setting the political agenda.
Henry VIII clauses
The essence of Grieve’s successful amendment was to prevent the government bringing a final ‘Brexit deal’ into force without a full parliamentary vote.
The background to this is the architecture of the ‘Brexit bill’. This is, in substance, designed to carry EU law across to English law en bloc, replacing the provision for the effectiveness of EU law under section 2 of the European Communities Act 1972, which is to be repealed. Left at this, the bill would leave the law as it stands apart from the competence of EU authorities to make new law for the UK. Parliament could then change whatever it thinks needs to be changed by passing new statutes.
The bill does not, however, leave it there. It goes on to make provision for both the ‘divorce agreement’ and any ‘transition deal’ and new UK-EU trade deal to be implemented by “statutory instruments” - regulations made by ministers - which are technically approved, or at least not-disapproved, by parliament, but in practice go through on the nod towards the end of the parliamentary day (ie, in the middle of the night to ordinary mortals). Moreover, the bill provides very extensive powers for further amendments to inherited EU laws to be made in the same way.
Such powers are conventionally called “Henry VIII clauses” after the Statute of Proclamations 1539 (repealed 1547) which authorised the king to make rules by proclamation, enforceable by fine or imprisonment, but not by capital or corporal punishment or forfeiture of property. Proclamations, unlike modern “Henry VIII clauses”, could not alter existing statute law.3 Calling the modern powers to revise statutes by regulations “Henry VIII clauses” thus gives them a spurious air of English antiquity even as it mildly damns them. (Similarly, calling the Labour Party’s ‘compliance unit’ secret delation procedures, modelled on the holy inquisition’s heresy procedures and the KGB, “star chamber” proceedings gives them a spurious air of English antiquity and damns them more mildly than is appropriate.)
There are broadly two justifications offered by the government for the very extensive “Henry VIII clauses” in the Brexit bill. The first is that there is an enormous mass of EU law which will need purely technical amendment (eg, to replace references to EU regulatory bodies with the new English equivalents which will have to be set up). The second is that all this will have to be done in a very short period of time between an agreement being reached (in the EU, agreements are always reached at the absolute last possible moment or afterwards) and the implementation date. There will therefore be insufficient time for parliamentary legislation.4
The excessive quantity of laws argument is unsound, because most of such technical amendments could perfectly well be made by general clauses requiring the courts to read the existing laws differently.
The shortage of time argument is similarly not exactly honest. Assuming that the government succeeds in its ostensible aim of reaching a deal for a two-year transition period, at the beginning of this transition period all EU law will apply as it does at present; and, again, a short act could simply tell the courts to proceed for the duration of the transition as if EU law was in force. The point of the transition period is precisely to allow time for ... a transition.
The reality is rather different, though it cannot openly be said by government. (It has been said by some non-governmental Brexiteers.) This is that the government wants, in negotiations, to hold over the EU negotiators’ heads the threat of a walk-out of the negotiations and a no-deal Brexit implemented in a way which would cause maximum disruption to the economic interests of other member states. Such a no-deal walk-out would require the ability of government to make radical changes to the law very quickly.
The real government ‘beef’ about Grieve’s amendment is precisely this: that it reduces the government’s negotiating flexibility, because it would be problematic to actually get parliament to pass a violently disruptive no-deal Brexit.
What is striking about these arguments is their flat contradiction of the Brexiteers’ and Lexiteers’ claims that Brexit would increase democracy: thus, the idea of the 2009 electoral front “No2EU, Yes to Democracy”, and thus the ex-leftist plebiscitarists of Spiked.5 Michael Howard and Richard Aikens falsely claimed during the referendum campaign: “In the EU, the unelected European Commission creates laws for us, and our parliament can only rubber-stamp them.”6 But the Brexit process supposedly now requires that unelected British civil servants should create laws for us and “our parliament can only rubber-stamp them.” That is the meaning of the “Henry VIII clauses” in the Brexit bill.
It is also the meaning of the fact that other amendments to the bill, which would have attracted real scrutiny of the operation of the “Henry VIII clauses,” were rejected. The Tory rebels were prepared to make a demonstration on their own terms, and willing to draw Labour in behind them on those terms. They were not willing to actually fight for a constitutional principle of democratic scrutiny of laws if that would have involved them voting for a Labour initiative.
The “democracy” that these Brexiteer “democrats” want to promote evidently does not involve careful public scrutiny of the laws which are to govern us by our elected representatives. Rather, it means nothing more than the right to choose, between two groups of ‘professional politicians’, which of them should hold office. Insofar as it is to mean plebiscitary democracy, it is perfectly clear that it involves the claimed right to procure a plebiscitary outcome by fraud, by fooling 4% of the people for 2% of the time.
What do MPs do for their pay?
There is a third argument for the “Henry VIII clauses”, which is not in the explanatory notes to the bill. This is that a great deal of EU law was already introduced by “Henry VIII clauses” under the European Communities Act 1972 and following legislation.
In fact, in this context it is not unique.
The number of Acts increased between 1950 and 1970 but has since exhibited a broad downward trend. 25 Acts of Parliament were passed in 2016, 12 fewer than 2015. ...
The same (official) source reports that
Statutory Instruments (SIs) are a form of secondary legislation which can vary widely in scope. They are usually issued by Ministers under the powers granted by Acts of Parliament. In 2016, 1,242 SIs were made by UK authorities and 438 were made by the Scottish Administration.7
The number of SIs is now so high that lawyers probably can’t keep up; and that they approach the character of an Ottoman imperial firman or Roman imperial constitution, which could be a decision merely on an individual case.8
The other side of this coin is the question why direct parliamentary scrutiny is no longer taken to matter - MPs could get rid of or radically reduce the use of SIs if they chose, but they don’t. Why they don’t is surely connected with MPs’ attendance at debates and votes. As a standard parliamentary response to freedom of information requests puts it,
There are no official lists showing individual MPs’ attendance in parliament or participation in divisions or other parliamentary proceedings.
Members of Parliament are not obliged by parliamentary rules to attend the House at any time.9
Televising of parliament often shows near-empty chambers.
This convention is, of course, modern. 17th century parliaments did from time to time recall MPs who had disappeared, in order to make sure that the business was done.10
What are MPs doing with their time, given that they don’t have to attend debates and votes and are only called up for ‘important’ divisions? (Apart, that is, from boozing, and sexually harassing junior staff?)
As of June 2017 there were 118 ministers in Theresa May’s government, of whom 95 (the legal maximum) in the House of Commons.11 This is 30% of 317 Tory MPs. It is to be presumed that even the most junior ministers have some departmental responsibilities for their additional pay.
They and other MPs also have an extensive responsibility for representing individual constituents, where these have complaints which they bring to their MP which can’t be dealt with otherwise. The point at which this became a major part of MPs’ work is probably in the same period as the replacement of the multi-member constituencies which were normal in the ‘unreformed’ system with single-member constituencies, over the period 1832-1948.12 It is certainly helpful to the state bureaucracy for MPs to be tied up with this work, as a sort of ‘bureaucracy external complaints department’ and therefore have less time to scrutinise policy and legislation than their pre-reform predecessors.
Beyond these tasks, MPs keep themselves busy campaigning for re-election - staying in touch with the constituency, seizing opportunities for publicity, and so on - and manoeuvring for advantage within their parties which may get them higher up the greasy pole.
The point of all this information about MPs’ work is that the tendency towards bureaucratisation of the legislative process is the other side of the coin of the professionalisation of the role of the elected representatives. As Friedrich Engels commented in 1891:
Nowhere do “politicians” form a more separate, powerful section of the nation than in North America. There, each of the two great parties which alternately succeed each other in power is itself in turn controlled by people who make a business of politics, who speculate on seats in the legislative assemblies of the Union as well as of the separate states, or who make a living by carrying on agitation for their party and on its victory are rewarded with positions.
It is well known that the Americans have been striving for 30 years to shake off this yoke, which has become intolerable, and that in spite of all they can do they continue to sink ever deeper in this swamp of corruption. It is precisely in America that we see best how there takes place this process of the state power making itself independent in relation to society, whose mere instrument it was originally intended to be.13
There is no way out of this dynamic towards bureaucratic rule, fraud, and lack of democratic scrutiny of the laws (all in the name of ‘democracy’) which does not overthrow the right to have a political career. This paper has focussed on this issue in relation to reselection of Labour MPs; but the issue is in itself a fundamental constitutional question.
This point, in fact, is almost sufficient to explain why Labour winds up tailending Dominic Grieve. Labour MPs are almost entirely socialized into the routines of parliamentary careerism (aka, “parliamentary cretinism”). What matters is “who loses and who wins, who’s in, who’s out”.14
What matters, therefore, seems to Labour MPs - the left included - to be seen to inflict a defeat on the government - even if this token defeat depends on following a Tory lead. The idea is that this defeat, showing up Tory divisions, will point towards the government falling and towards Labour winning power in a general election. The game is an electoral game aimed at winning governmental office, rather than a real battle for political democracy.
Not quite the whole story. The professional politicians are linked to the käufliche presse (Kautsky), the advertising-funded media as an instrument of corruption. That Labour fails to develop its own independent media is part of the same dynamic: the MPs become dependent on the corrupt media for their own and their party’s electoral campaigns; hence, the party cannot set its own agenda, but responds to media agendas.
The resulting logic is ever towards the ‘centre’ - as this ‘centre’ is defined, in rightward moving terms, by the Tory Party, which does have a real agenda of class war in favour of its landlord, banker and small-business backers, carried on behind a variety of forms of deception and political sleight of hand.
Thus, for example, the pretence of “austerity” is accompanied by large-scale Keynesian money-printing for the benefit of banks, landlords and speculators, and concealed drives towards privatisation of the NHS through ‘reforms’ and of education through ‘academisation’ of schools, the fees scam in universities, and so on. The quickness of the hand deceives the Labour and leftist anti-austerity eye. The latest version is the pretence of ‘democracy’ in Brexit - and in its Tory opponents. Hence Labour as a tail on December 13.
1. http://www.bbc.co.uk/news/av/uk-politics-42405698/you-are-never-mutineers-bercow-urges-mps-to-uphold-principles (Dec 18).
2. http://www.bbc.co.uk/news/uk-politics-42346192 (Dec 13).
3. Adair ‘The Statute of Proclamations’ 32 Eng. Hist. Rev. pp34-46; ML Bush, ‘The Act of Proclamations: a reinterpretation’, 27 Am. J. Leg. Hist, pp. 33-53 (1983).
4. https://publications.parliament.uk/pa/bills/cbill/2017-2019/0005/en/18005en.pdf and https://publications.parliament.uk/pa/bills/cbill/2017-2019/0005/delegated%20powers%20memorandum%20for%20European%20Union%20(Withdrawal)%20Bill.pdf.
5. Eg. http://www.spiked-online.com/newsite/article/guess-what-when-you-attack-democracy-you-piss-people-off/20668#.WjqFRt9l9aQ.
6. ‘The EU’s court is picking apart our laws’ Telegraph June 22 2016. False because EU laws have to pass both the Council of Ministers (elected politicians) and the EU parliament (elected politicians).
7. http://researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7438 (April 21 2017).
8. Keeping up with the SIs: ‘When laws become too complex’ https://www.gov.uk/government/publications/when-laws-become-too-complex/when-laws-become-too-complex (April 16 2013). Firman: Wikipedia has a convenient short account. Roman imperial constitution: Justinian Institutes Book 1 [title] 2 [sect.] 6 (distinguishing general constitutions from particular rewards and punishments).
11. http://researchbriefings.parliament.uk/ResearchBriefing/Summary/SN03378 (Aug 10 2017).
12. Rough picture in https://en.wikipedia.org/wiki/List_of_multi-member_constituencies_in_the_United_Kingdom_and_predecessor_Parliaments.
13. 1891 postscript to The civil war in France https://www.marxists.org/archive/marx/works/1871/civil-war-france/postscript.htm.
14. Shakespeare King Lear Act v, sc. 3; Lear: and hear poor rogues/ Talk of court news; and we’ll talk with them too- / Who loses and who wins; who’s in, who’s out -.