Writing Parliament out of the legislative process

The European Union (Withdrawal) Bill, more commonly known as the Repeal Bill, is the first major piece of Brexit legislation to go before Parliament. The bill is a crucial part of fulfilling the government’s priority of ensuring there is legal consistency on the day we leave the EU. However, with the precise nature of withdrawal unclear at this moment in time, the bill proposes to hand sweeping powers to ministers to allow them to make changes to laws, which could easily be exploited. This move would sideline both Parliament and the devolved nations from policymaking, and far from taking back control, the government’s proposals would further centralise power in the hands of the executive.   

Most people will understandably be unfamiliar with delegated powers, which have come to the fore in the Repeal Bill after outcry from civil society and parliamentarians alike. These are powers contained within primary legislation that enable ministers to ‘edit’ laws for administrative rather than policy purposes. If, for example, the name of a public body changed, the relevant minister would likely have the power to update the original primary legislation to reflect this - a more sensible approach than having a fresh new piece of primary legislation go through the full parliamentary process for what is a simple technicality, and has no wider policy implications.

When it comes to withdrawing from the EU and undertaking the enormous process of transposing EU laws, rules, and regulations into the UK statute book for consistency on Brexit day, many technical changes to this body of law will be needed. Parliamentary time is an extremely limited resource, and it would be both impractical and unnecessary to have MPs debate and vote on every change required. Most would far prefer MPs to spend their time debating substantive policy issues, rather than having to spend time approving every deletion of references to EU legal supremacy from legislation, for example.

While delegated legislation is a normal part of the parliamentary process, this is not to suggest that there aren’t huge problems with the bill: most MPs are very unfamiliar with delegated legislation; there is very little, if any scrutiny of delegated legislation in the House of Commons; and the context in which the powers will be applied will vary largely depending on the outcome of negotiations, which are yet unknown.

The government is adamant that the bill is merely going to fulfill the purpose of facilitating a ‘copy and paste’ job. David Davis has gone so far as to recently label it the ‘Great Continuity Bill’ during a trip to Washington to speak at the US Chamber of Commerce. If the government is really set on a ‘copy and paste’ job, then why are they so hesitant to set in stone that ministers cannot use the powers in the bill to remove existing rights and regulations?

The breadth of the powers the bill proposes handing to ministers goes far beyond what should be considered reasonable in a modern democracy. For example, it enables ministers to make changes to laws where “deficiencies” arise as the result of Brexit. Given that there is virtually no area of our laws that are untouched by the EU’s influence, almost every area will be affected by leaving the EU, and “deficiencies” remains completely undefined, ministers could change almost any law they see fit. The bill also gives them the power to create public bodies - a practice which is usually strictly reserved for Parliament.

What is even more curious about the bill is that its contents suggests that the government knows that there needs to be clear constraints placed on what the delegated powers can be used for. In clause 7(6) for example, the bill sets out that the minister may not use the powers to impose or increase taxation. Despite this, the government refuses to enshrine in law the promises they’ve already made - to not use the powers in the bill to roll back rights and regulations behind closed doors.

Delegated legislation receives far less scrutiny that primary legislation, and crucially it is ministers not Parliament that decides what level of scrutiny the changes will receive. The government’s stated aim in leaving the EU is to take back control of our laws and yet as it is currently drafted this bill does not do that; rather it empowers ministers and sidelines MPs.

We already know that many outside and in Parliament are vying for the opportunity to use the delegated powers in the bill to make policy changes they would perhaps not otherwise be able to make - particularly given the challenging political environment of a hung Parliament. The New Nicotine Alliance, for example, wrote to Jeremy Hunt in October 2016 calling on him to use the Repeal Bill to repeal “some of the worst examples of European Union law, especially where a domestic approach would have multiple benefits to health, wellbeing, commerce, personal freedom and competitiveness.” Whether or not these regulations are of any merit is another conversation entirely, but what should be deeply concerning is the perception by some that the powers in the Repeal Bill present an opportunity to bypass normal democratic scrutiny.

Also concerning is that the government has form when it comes to abusing delegated powers - meant only to be used for making minor edits to a law to make sure it works - to make major policy changes behind closed doors, away from the scrutiny of Parliament. In recent years ministers have used delegated powers to make highly controversial and sweeping policy changes, including: allowing fracking in national parks; abolishing maintenance grants for students; and adding the ‘Rape Clause’ to tax credits.

The government has a huge task at hand to undertake in a very short time period. Worryingly, a number of complex questions remain unanswered, for example, how will directives and principles be transposed, and what bodies will be set up to enforce these - after all, without enforcement then these rules and regulations are meaningless.

Taking back control cannot mean undertaking a significant transfer of powers to the executive and writing MPs out of the legislative process. It is fair to say that with the powers conferred by the bill as it stands, ministers could undertake a process of unilaterally reshaping almost every area of UK public life. And that’s precisely why we should all be concerned about what the Repeal Bill is proposing.