When she called the election to replace the parliament that was formally dissolved this week, Theresa May offered an overriding justification. Parliament, she said, was failing to respect the voters’ leave verdict in the EU referendum. Labour, the Liberal Democrats, the SNP and the Greens were all trying to knock the government’s plans off course, as were some in the House of Lords. Division at Westminster was putting Brexit at risk.
On Wednesday, back in Downing Street from seeing the Queen, Mrs May returned to her theme. This time, however, the chief disrupters were not the opposition parties but the European commission, the EU-27 member states and now the commission’s negotiator Michel Barnier. Their shared crime was to have the temerity to challenge the facile yet confrontational version of Brexit that Mrs May is offering to the electorate. This will play well with Mrs May’s cheerleaders, but if she is running into resistance over Brexit in parliament and Europe, the fault lies with her approach, not with those who question it. It raises fresh and disturbing concerns that she sees the world as a place where everyone is out of step except her.
In five weeks, Britain will choose a new parliament. If Mrs May gets her way, she will claim a mandate to press ahead with her deeply questionable version of Brexit. Not unnaturally, there have been many calls, including in this column, to ensure Mrs May does not get a “blank cheque” to do this. Though the opposition parties are not agreed on what they want to put in its place, they are all appealing to voters for support in order to hold Mrs May more tightly to account in parliament over Brexit, especially when she insists on being so secretive.
Electing MPs of all parties who will do that is therefore one the most important goals on 8 June. But how well do MPs truly hold ministers to account nowadays anyway? If the former lord chief justice Lord Judge is correct in his Bingham lecture on Wednesday, the answer is that they do it very poorly. Legislative scrutiny, parliament’s principal weapon for controlling the executive, has become extremely blunt. Since Brexit offers the prospect of a long legislative revision of more than 40 years’ worth of laws made in the context of the EU – a “legislative tsunami” in Lord Judge’s words – the bluntness of parliament’s weaponry ought to be a cause for very deep public concern indeed.
Lord Judge’s overarching theme is that parliamentary scrutiny of the government needs to be properly re-established. He paraphrases John Dunning’s famous Commons motion from 1780 to say that parliamentary scrutiny has diminished, is diminishing and ought to be increased. He stresses that the process was well embedded long before the extra pressure of Brexit. In Britain’s system, draft laws are longer than ever, contain more schedules than ever, and, above all, contain far more delegated or secondary legislation – powers to allow ministers to make changes by decree – which parliament rarely gets to scrutinise.
In their worst forms, Lord Judge says, these confer “Henry VIII powers” on government, even to the extent of being able to overrule primary legislation. Lord Judge calls that “chilling”, and a “tyrannical menace”. In the past session of parliament, no fewer than 14 bills contained 41 such provisions. Yet the last time the Commons rejected such a “statutory instrument” was in 1979. Only parliament can stop this slide into legislative impotence. Whether the parliament that is elected in June will have the gumption to do this we shall have to see. But it must.
This brings us irresistibly back to Brexit. Brexit will dominate the next parliament. If Mrs May is returned, there will be a so-called great repeal bill. This will try to do three things: to repeal the European Communities Act that took the UK into Europe in 1972; to bring all EU laws over the past 40 years on to the UK statute book; and, finally, to create powers for ministers to make secondary legislation as EU laws become UK ones. If Mrs May does make a new deal with the EU, that too will generate treaty, statute and even more secondary legislation too.
This is where Mrs May’s reckless plan for Brexit hits Lord Judge’s concern about the lack of scrutiny head-on. Whether parliament will be able to cope with the task is highly questionable. But the new parliament must not only hold Mrs May to proper account over Brexit. It must also do so in new ways that purge the legislative culture of the habits of ministerial lawmaking that rightly incenses so many who would revere the parliamentary system far more if only it worked properly.