The ‘war of attrition’ over the EU Repeal Bill is just beginning

Posted On: 
14th September 2017

This week MPs were given a taste of the parliamentary battles to come as the EU (Withdrawal) Bill passed its first hurdle in the Commons. But, as Robert Orchard reports, the ‘guerrilla tactics’ are just commencing 

There is a widespread feeling at Westminster that there may be dark storm clouds ahead
PA Images

As MPs head off for the party conference season, Conservative whips will be breathing a sigh of relief at the comfortable majority of 36 they achieved for the crucial second reading of the government’s first major legislative test of Brexit since the election, the EU (Withdrawal) bill.

No Tory MP voted against, while seven Labour members defied their own party whip to back the legislation. And the government chief whip, Gavin Williamson, could be forgiven if he fed his pet tarantula, Cronus, an extra juicy cricket as a celebratory treat at another, more symbolic, piece of very welcome news: the most prominent Tory europhile – the veteran former cabinet minister, Kenneth Clarke – had finally thrown in the towel, announcing in the debate that: “I have to accept that we are going to leave the European Union. I accept that because this House passed the legislation to enact Article 50 by a large majority. I argued and voted against it, but it went through, and it is idle to pretend that it is politically possible for that to be reversed. The question now is how we leave.” The last Tory disbeliever had finally seen the light. What else to do for the government’s chief commons enforcer than rejoice!

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Yet any celebrations might prove slightly premature: there is a widespread feeling at Westminster as MPs disperse at the end of their 10-day city break that there may be dark storm clouds ahead in what the columnist and former MP Matthew Parris calls “the muddy hell of the bill’s committee stage”. And the senior Labour free-thinker, Frank Field, who defied his party to back the bill, has accused Labour colleagues, and some Conservatives, of engaging in “guerrilla warfare” and betraying their constituents by tabling scores of amendments to try to change the bill. 

The former Commons Clerk, Robert Rogers – now Lord Lisvane – sat through the dark days of the acrimonious Maastricht debates in the 1990s that tore the Conservatives party apart and predicts trouble to come: “People will start to realise just what an extraordinary bill this is when the work starts on it.”

That work is due to begin when MPs return to Westminster next month after sampling the conference delights of Bournemouth, Brighton, Manchester, not to mention Glasgow and Caernarfon. All sides agree a bill is needed to take all EU law accumulated over more than 40 years of membership and place it on the new UK-only statute book, but there the harmony breaks down, with opposition parties and a fair sprinkling of worried senior Conservatives protesting that the bill represents a vast transfer of powers from Parliament to government ministers.

Political commentator Steve Richards predicts that there will be times where the opposition parties and enough rebel Conservatives will combine to defeat the government. “There is a view that this repeal bill doesn’t lend itself to the kind of dramatic moments we saw 20 years ago in the battles over the Maastricht Treaty. Well, the opponents will make sure that it does! 

“There will be ways in which amendments will be put forward so that it makes it absolutely clear that the government is being defeated. I think it is going to be very tricky for ministers”.

With a working majority of just 13 – thanks to the votes of the DUP – Richards says the government is vulnerable to ambush and believes that Labour’s policy shift on Brexit, engineered by the wily Sir Keir Starmer, the shadow Brexit secretary and rapidly-emerging master of urbane guerrilla warfare, was a shrewd move. Labour is now calling for a long transition during which the UK remains in the Single Market., and the right for MPs to vote on any final deal. “The shift is massively important. Labour need the space to credibly oppose the government but until a few weeks ago its premise was ‘the government’s approach to Brexit is appalling... we plan to do virtually the same.’”

But Conservative loyalists like Nigel Evans, joint secretary of the backbenchers’ 1922 Committee, has a clear message for Conservative colleagues who may be pondering offering support for major amendments to the bill: “This Great Repeal Bill is not a Christmas tree on which to start to hang your prejudices but a method by which we transfer cleanly the laws from within the EU onto the British statute book.”

He suggests the Tory MPs now voicing the loudest concerns are those who voted Remain and, as the Labour, he zeroes in on those in constituencies that voted to Leave the EU: “There are Labour MPs, particularly in their heartlands of the north west and the north east, who must look at the result in their own constituencies and think ‘is it really our role to try to delay or tamper with the wishes of our own constituents?’ Playing politics in Westminster means playing treachery with voters in their own heartlands.”

That’s not an argument that cuts much ice with many senior Labour figures. Hilary Benn, who chairs the influential cross-party Brexit committee, told MPs the bill was not about taking back control from the EU. “If ministers continue to fail to take Parliament’s role seriously, we will have to continue to prod, push and persuade… so that ministers understand that this is a new Parliament; it has been christened the Backbenchers’ Parliament, and rightly so – they are going to have no choice but to listen to what Parliament has to say.”

The dissent may have been relatively muted on the Tory side in the Commons but warning bells were ringing during the two-day debate. Anna Soubry called the bill ‘a power grab’ by ministers from what should belong to Parliament. Former Attorney General Dominic Grieve said in many respects it was “an astonishing monstrosity of a bill”, while the former education secretary, Nicky Morgan, insisted that parliamentary scrutiny was not “an affront to democracy but its very essence.  The true saboteurs of Brexit are those who would sanction the exclusion of Parliament from this process. The debate on this Bill has only just started.” And other influential senior Tories are calling for significant changes to the bill too.

Given the government’s precarious majority, courtesy of the deal with the Democratic Unionists, it only requires the support of around 10 Conservatives to enable opposition parties to inflict significant defeats when the bill enters its detailed Commons stages – if Labour can keep its own rebels onside.

Even Conservative Brexiteers as loyal as Bernard Jenkin accept there will have to be changes to the bill to answer MPs’ concerns about the so-called Henry VIII powers, which allow ministerial discretion to make law through the use of statutory instruments without full parliamentary scrutiny: “There are plenty of people on our side expressing genuine and legitimate concerns, but we need to be able to distinguish between the vast majority in the Commons who I believe accept Brexit and the principle of the Withdrawal Bill, and accept that there has to be provision for secondary legislation, and those who are using this as an opportunity to frustrate Brexit.”

With Labour threatening “trench warfare” in the Commons to try to force major changes to the bill, one key weapon could be the withdrawal of pairing arrangements with the Conservatives, which in the past have allowed MPs of opposing parties to miss a vote by mutual agreement to attend to other business or due to sickness. The same tactic by a Tory opposition led in the days of James Callaghan’s minority government in the late 1970s to the bizarre sight of ministers landing at a foreign airport, only to be forced to get straight back on the plane to make it home for a crucial vote. The Callaghan government finally fell after losing a vote of confidence by a solitary vote amid a dispute over pairing.

One senior official who’s witnessed the effects on parliamentary business for decades says it’s a powerful weapon: “It could cause havoc. Withdrawal of pairing is a declaration of war, though on the occasions when it has happened, it has been just about as inconvenient for the opposition as for the government. It is a very serious step and if things got ugly it is certainly one of the weapons Labour can use.”

The veteran Labour MP, Mike Gapes, chaired the Foreign Affairs Select Committee for five years and has also seen what happened when his party withdrew pairing in the 1990s to harry John Major’s tottering administration. He has his doubts about the strategy: “My view is that select committees have to travel, and all-party groups have to do their job, and if things grind to a halt then large parts of our parliamentary work would be undermined.”

And he accepts Labour’s trench warfare could be uncomfortable for its own MPs. “We are in a position where there is going to be a war of attrition. There are items of business that cannot be programmed. The whips will be inventive... there are ways of using up time. The secret is to do something the other side are not expecting, then call a vote with the element of surprise. The Conservatives will have to keep people hanging around at Westminster...then nothing happens! We could see ambulances bringing sick MPs in to vote again, like in the 1970s. Sadly, it is possible.”

All this is before the bill even gets to the House of Lords, expected to be sometime in December. The Conservatives have no majority here either, and opposition parties and crossbench peers are preparing a warm welcome there too. Lord Lisvane, the former Commons Clerk, plans to play an active part in seeking to improve the bill. “The big element will be the Lords sending things back to the Commons more than once, probably two or three times because if the numbers are so finely balanced in the Commons that relatively small issues can push them one way or the other, then there is a very strong argument for sending things back several times, particularly over the issue of delegated powers.

“After all that we heard about taking back control and parliamentary sovereignty, if this ends up – as it will do if the bill is unamended – as being the biggest transfer of power from parliament to the executive in recent history, then people are going to have a slightly different view about it.”

Labour’s deputy leader in the Lords, Lady Hayter, says if the Commons hasn’t sorted out those Henry VIII powers enshrined in the bill that hand too much unfettered power to the executive, then the Lords will have to: “There is no point coming out of the EU because people don’t like Europe deciding things, if then Parliament doesn’t decide things. We are talking about really big issues here, not minor secondary legislation.”

The Lib Dem Lords leader, Lord Newby, says some aspects of the bill stand “zero chance” of getting through the upper house as they stand. He is seeking to work with Labour where possible though they don’t support the Lib Dem call for a second referendum once the deal is known: “We want to give people the chance to vote on the final deal.  Someone has got to decide whether the deal is acceptable. It is either Parliament or the people and we think it should be the people. Having uniquely given such a big issue to the British people to decide, I think it is only reasonable to say the British people should have the final say.”

Political commentator Steve Richards says there are very likely to be government defeats on the bill: “Each defeat will be seen as another blow to Theresa May’s personal authority and it could be calamitous for her. It will clearly undermine her as a prime minister if she can’t get key elements of her Brexit legislation through Parliament. And also it will send a signal to the EU that they are negotiating with someone who can’t be guaranteed to deliver on any front.

“Like Maastricht, it could divide the Tories and the manner of the Brexit could even split the party. I have been told that Downing Street is planning to use the threat of a vote of confidence if Theresa May is defeated on something everyone recognises to be highly significant… knowing that her MPs won’t want an election.”

That threat may be enough to keep most would-be Tory rebels in line, but the plain-speaking veteran europhile, Ken Clarke, will doggedly plough his own furrow. He told me he couldn’t bring himself to vote for the second reading of the EU (Withdrawal) Bill and abstained. He still has no time for referendums but insists he respects the sincerity of fervent longterm Brexiteers like Sir Bill Cash and Iain Duncan Smith. “We all have our principle and believe we are voting in the national interest. It is the people who flop about both sides and just follow the whips that I find a bit baffling. If you had a secret ballot in the House of Commons, it would show the vast majority of MPs, most members of the Cabinet and of the Shadow Cabinet, still think it is in Britain’s interests to stay in the EU,” the Father of the House suggests provocatively.

“If public opinion does change in the next 12 months, I suppose the politicians might change too, but they would find it difficult. They have got to pluck up the courage to face the tabloid, rightwing press who will denounce them as saboteurs and enemies of the people.”