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.

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  1. Emmylgant says:

    Scarry stuff.
    Naomi Klein’s “Shock Doctrine” comes to mind.

  2. Renee Fletcher says:

    This Brexit debacle has been obvious for quite some time. We are in a mess. Let’s retreat.
    Damage limitation!

  3. bringiton says:

    I do wonder what possible proposal the SG can come up with that will convince the majority of Scots to part company with these maniacs.
    For a significant number,retention of the British state is paramount and they will put up with any old rubbish dished out by Westminster,no matter at what cost to themselves.
    We shall see.

  4. George Gunn says:

    As John Warren has pointed out this entire Brexit farrago is about the Tories retaining power come what may. Brexit, as John has pointed out before, is a coup by the right. They wish to retain power by what ever means they can and to hell with the law or the people or the interests of the common good. What the Scottish Government can do is resist every step by Westminster at every turn. Question everything, accept nothing, constantly challenge the authority, legally, morally, every which way. The problem for devolution in Scotland is that neither the Tories or the SNP believe in it, so devolution will be the loser. The solution for the Scots is obvious; independence. But as long as people in Scotland vote Tory that remains illusive. One other opportunity for Scotland is that the Tories are now engaged in what the really do best, which is fighting amongst themselves. Let us hope that our politicians have the wit to exploit this and show them for the empty, greedy fools they are.

  5. Crubag says:

    There are two things I find fascinating in the current Brexit debate-

    Lack of sovereignty/oversight – one of the hot topics during the referendum was how much EU-determined laws determined UK laws. Remain was estimating as low as 13%, Leave as much as 65%. From the looks of it, Leave may have been closer. The author points out the unsatisfactory Statutory Instrument process, and this was often used to give legal effect to EU-determined regulations. According to the BBC, since 1993 there’s been 231 EU-related Acts of Parliament, but 4,283 EU-linked SIs.

    And for indy, the challenges of disentangling modern states, both in terms of timeline, and of the kind of things that could be asked by former partners – e.g. continuing legal oversight of their citizens, which I can’t imagine an iScotland conceding, or sharing ongoing liability for joint investments, which it might.

    There’s another couple of positive twists for indy2 I think. It’s shown a referendum can be won more on principle than a detailed prospectus (though the example of iUK, already with currency, borders, central bank etc. maybe different to an iScotland without), and that even with a narrow majority, the political them/us divide that naturally opens up as each side makes its claims then consolidates difference.

    1. John S Warren says:

      I think you will find that around 18,000 SIs have been used 2010-2017 alone (look up SIs at gov.uk and the National Archive). From roughly the end of the WWII until the 1970s there were up to around 100 SIs per year. They have increased each decade into the 1,ooo+, 2,000+ and 3,000+ since then. What is proposed in the EU (Withdrawal) Bill is on a different scale to anything before, or imagined: it is wholesale. This is destructive of the Parliamentary system. Governments like SIs because they make life much easier; and supine Parliaments over the last 30 years have encouraged the natural, but suppressed tyrants (who are attracted to power like moths to a flame), to emerge from the closet or chrysalis.

  6. jack elliot says:

    .

    But where all in this political story that rules our lives
    Is the concept of fairness and wherein do they learn?

    http://jackelliot.over-blog.com/2017/07/a-paragon-of-fairness.html

    .

  7. John B Dick says:

    How and when it ends I do not know, but the union cannot long continue under such strains.

  8. Redgauntlet says:

    Friends,

    I confess I am a wee bit jumpy, a wee bit nervous….a wee bit on edge. I think this could end very, very badly. It’s a de facto English coup which we are witnessing…

    …and the leader of the SNP, and our First Minister, instead of making the case for independence, is actually backtracking, based on a bunch of polls…you don’t win independence with that kind of hedging. You win independence by convincing people with a steadfast argument, that it is the right thing for Scotland, which of course it is.

    And can you believe these guys, John S Warren, that they still have not clarified the situation of Europeans in the UK, and consequently, UK citizens? It’s absolutely disgraceful. It’s just a total disgrace. Every time I see that smirking little shitbag David Davis, I feel like throttling him…

    The whole thing is a disaster….hubris and nemesis…the Greeks knew their stuff…

    1. Crubag says:

      I think the issue for the SNP leadership is that the referendum vote hasn’t translated into parliamentary votes – the pro-Brexit parties, Labour and Conservatives, did well in 2017, the pro-EU parties less well.

      Independence plus EU membership could be a strong message, it’s at least a simple one, but the fear must be that it actually reduces the independence vote. We’re probably committed to seeing out Brexit and then working out what the best route is in the new UK/EU relationship.

      The citizens element is constitutional creep by the EU – I can’t independent Scotland wouldn’t be giving a rUK Supreme Court jurisdiction over rUK citizens in Scotland.

      1. Pogliaghi says:

        The vaunted and preached-about “spirit unleashed by the referendum” isn’t worth much if what it leaves us with is a residual politics of triangulation and fretting about “No” voters MSM-brainwashing-induced sensitivities and preferences. Specifically over the sheer propaganda mobilized in 2016 against Europe but still stuck in brains particularly of older yoons.

        If a strong, simple message but above all a good argument doesn’t translate into electoral power then the problem lies in a weakness of campaigning. Which is why the dilettantes of lexit are so dangerous. They are taking “Yes” eyes off the ball and sidelining us in the ossified, abstruse Bennite politics of whether or not the UK can move to the left outside the EU. (Why would it, when it hadn’t for decades inside the EU?). (Perhaps the real motivation for the lexiters is: inverted shock-doctrine thinking; ends justifying means, revolutionary upheaval etc. Which again owes more to archaic Fourth International attitudes than it does to a democratic “Yes” approach)

  9. Graeme Purves says:

    “But does it mean anything of substance?” chirruped Gordon Brewer idiotically all weekend on BBC Radio Shortbread.

  10. Hamish Kirk says:

    We are paying the price of the defeat of 2014. I cannot see any chance of a victory now. We were defeated and now we are being pacified and subjugated. Has no one else noticed the waves of settlers crossing the Tweed and Solway ? The Anglicisation and Brittification of public life continues.

  11. Jack Collatin says:

    Something wicked this way comes.
    It used to be a common harrumph in Civil Service circles that only poor lawyers who couldn’t hack it in the Big Bad World found themselves working for HMG.
    Like most things which are wrong with the UK in the 21st Century, the abysmal state of the Civil Service can be traced back to Maggie, and her much heralded put down of the Home Civil Service at the time: ‘Public bad, private good.’
    It was she who began the Invasion of the Consultants, and Major, Blair, and Brown enthusiastically endorsed this fallacious notion that public service should be subject to, and driven by, the rules of the market place.
    What we have endured since is a systematic ‘privatisation’ of our public services, which has seeped through the fault lines to Local Government level;GCC has god knows how many ‘Arms Length’ quasi private sub contractors in Parking, Housing, and so on, which still receive millions a year in public finance to prop up a failing loss making Thatcherite ‘private best’ model of delivering essential public services.

    ‘Do the same with less, or less with the same.’

    To guarantee that one climbed the greasy pole to mandarin status, young Reformists need only demonstrate that they were ‘on message’; their success measured on how much they could reduce public spending, how many of their colleagues whom they could ‘save’ (sack) in their area of government.

    Consultantspeak abounded and ‘efficiencies’, and ‘savings’ replaced harsher off-message terms like ‘redundancies’ and ‘cuts’ in the Brave New World of Public Service.
    Personnel Departments became ‘Human Resource’ departments. People were ‘things’, dehumanised, with the same status and rights as the office photocopier or keyboard.
    Private Companies made money out of ‘savings’ such as taking away claimants’ motability vehicles.
    Job Centres are closed, in an ‘efficiency drive’. Thousands of HMRC Scots jobs are transferred to Crawley under the banner of ‘efficiency savings.’
    The UCS wheeze, melding a raft of quite distinct benefits and allowances into one less staff intensive mess, is designed to ‘save’ money. Redundancies, and cuts in allowances and benefits. Lovely jubbley.
    Fast track promotion gold. Music to their political masters ears.
    The Social Contract is broken, the Thatcher Conservative and Tony Blair neo Conservative years have completely destroyed any notion that any WM Government even pays lip service to meeting the needs of their constituents.
    There is no Social Contract.
    Davidson Dugdale and Rennie are three fleas of the same Fiscal Responsibility Austerity Bill dug.
    We now hear that Corbyn, the great Marx Man, has now adopted hard Brexit, because emigrants are somehow responsible for the ‘race to the bottom’ which has driven wages downwards for ‘British’ workers.
    Aye, right.
    The Unionist parties know that the current heads of the Civil Service, and the much reduced in numbers, and under qualified and untrained privatised Civil Service, are just not good enough, or in sufficient numbers to deal with Brexit.
    Hubble Bubble, toil and trouble.

    GCC has god knows how many ‘Arms Length’ quasi private sub contractors in Parking, Housing, and so on, which still receive millions a year in public finance to prop up a failing loss making Thatecherite ‘private best’ model of delivering essential public services.

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