After Article 50, UK democracy will be ‘chilled’ by Great Repeal Bill, warns new briefing

After Article 50, UK democracy will be ‘chilled’ by Great Repeal Bill, warns new briefing

Date: 27 March 2017

  • Government is planning unprecedented bill to transport thousands of European laws into British law.
  • New briefing from legal academic warns that the bill could affect UK democracy for decades to come and could hand massive power from parliament and the people to the government.
  • Proposed new ‘Henry VIII’ powers have been described by former Lord Chief Justice as a “self-inflicted blow” that should only be used in a national emergency.

A new briefing argues that the government’s proposed Great Repeal Bill (GRB) which will follow on from Article 50 being triggered on 29 March, has the potential to grant the government an almost unprecedented level of unaccountable power, using a political process that will chill democratic scrutiny.

The GRB aims to repeal the European Communities Act 1972, and at the same time convert thousands of EU laws into UK law. This is intended to maintain legal and regulatory certainty after Brexit. All laws that take effect in the UK as a result of EU membership will be converted into UK law. They will then be repealed, replaced or maintained piecemeal after Brexit.

But campaigners fear that important democratic safeguards will be sacrificed in the process. Under so-called Henry VIII powers, ministers could gain the power to repeal rights, protections and standards outside of parliamentary scrutiny.

Sam Fowles, the author of the briefing and a spokesperson for Another Europe is Possible said:

“The Great Repeal Bill is almost unprecedented in scope, form, and lasting effects. It has the potential to empower the government to effectively legislate without the consent of Parliament. So far, there has been an almost total absence of transparency in the government’s approach. 

“If it is handled with transparency and accountability, then the Great Repeal Bill presents a chance to come together and improve the way this country is governed. But that is not how it has been handled so far. It’s up to the government, MPs, and civil society to come together to put that right. Otherwise a bill aimed at “taking back control” will actually represent the disenfranchisement of ordinary voters on a historic scale.” 

Nick Dearden, the director of Global Justice Now, one of the organisations affiliated with Another Europe is Possible said:

“We fear the Great Repeal Bill will make extensive use of so-called Henry VIII powers which will allow government ministers to make substantial changes to our legal system without proper parliamentary scrutiny. Even in Tudor times these powers were controversial. Today they could allow ministers to jettison equality legislation, workers’ rights and environmental protections. We know that MPs have an enormous task here, but these changes must happen in a way that doesn’t involve granting Theresa May the powers of a renaissance monarch.”

The briefing, The Great Repeal Bill – Addressing Unaccountable Power, has been published by the campaign group Another Europe is Possible, and argues that:

  • The opacity of the process and the powers proposed in the legislation risk side-lining Parliament as a decision-making body. In its place the government will be empowered to take unscrutinised and unaccountable decisions behind closed doors, with implications that will last for generations
  • The Bill, as currently proposed suffers from four key accountability gaps. These gaps maximise the discretionary powers of officials and minimise the potential for democratic scrutiny. These gaps would enable the government to “pick and mix” the EU norms that survive and are scrapped in the GRB. This, in effect, represents a power to legislate on a massive scale without the need to consult Parliament.
  • Even if the powers in the GRB are as limited and accountable as possible, the objectives of the Bill cannot be achieved unless it grants the government exceptional legislative power. Such a range of powers has the potential to exceed those of any peacetime administration in the last century.
  • Even with best case scenarios, the Bill cannot avoid creating the space for a gradual, low level, migration of decision-making power away from elected representatives and toward ministers and officials unless a sunset clause curtails those powers after a certain point.

The briefing makes the following recommendations:

1. The government must reveal specific details of the content of its Great Repeal Bill, and it must be a clear and detailed bill (not a ‘skeleton bill’)
2. This must happen very soon, with a clear proposed timetable to ensure proper time necessary for the task with a minimum 6 months for consultation and 6 months for debate
3.  The transfer of EU law into UK law must be transparent, clear and accountable: 

  • it must include provisions to ensure that delegated power to the government  is clearly and precisely defined in scope and purpose.
  • Henry VIII powers should be avoided, and when used, subject to the super-affirmative procedure.  
  • Sunset clauses should be used to ensure that the delegated legislative powers do not last indefinitely. 
  • There must be enhanced processes and resources for screening and scrutinising delegated legislation, including through new or existing parliamentary committees.

4. The government must guarantee, on the face of the bill, clear explicit provisions to prevent the bill affecting human rights, equalities, or environmental laws and standards, and to prohibit the use of delegated legislation to change or undermine such laws and standards.  

Notes

The author of the briefing, Sam Fowles is a researcher at the Centre for Commercial Law Studies, Queen Mary University of London. He provides advice and consultancy to MPs, NGOs, and commercial enterprises. He has held visiting positions at the University of Sydney in Australia and Georgetown University in the USA. Sam is a Fellow of the Royal Society of Arts, and a spokesperson for Another Europe is Possible.

The quote from the previous Lord Chief Justice on Henry VIII powers being a self-inflicted blow  is taken from:  House of Commons Library, “Legislating for Brexit: The Great Repeal Bill”, (27th February 2017), p. 38, available at http://
researchbriefings.parliament.uk/ResearchBriefing/Summary/CBP-7793#fullreport (last accessed 19th March 2017)