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Analysis

12 ways this monstrosity of a bill must be changed

by Hugo Dixon | 12.09.2017

The government’s majority of 36 in last night’s vote on its undemocratic Repeal Bill is deceptive. There is disquiet on the Tory backbenches about this power grab, even among Brexiters such as Iain Duncan Smith and John Penrose. Labour Brexiters such as Frank Field, who voted with the government last night, have also made clear the bill needs to be amended when the legislation is debated line by line in committee after the party conferences. Indeed MPs have so far proposed 59 pages of amendments.

This is not to dispute that legislation to unwind our relationship with the EU will be required if we do finally end up leaving the EU. Nor is it to dispute that Parliament will need to delegate some decision-making to ministers to ensure that, as EU rules are copied into UK law to avoid a “regulatory cliff-edge”, they do not become inoperable. For example, if a regulation mentions the European Commission, it won’t be possible just to copy it; that reference will need to be excised.

But the scale of the powers that Theresa May is proposing to grab for herself and other ministers goes way beyond this legitimate purpose. As the House of Lords Constitutional Committee wrote this month: “The number, range and overlapping nature of the broad delegated powers would create what is, in effect, an unprecedented and extraordinary portmanteau of effectively unlimited powers upon which the Government could draw.”

Here are 12 of the major weaknesses that need correcting.

1. Ministerial decree

The sweeping powers granted under the bill give ministers the right to make regulations where normally they would have to pass new laws. The use of these powers will, in most but not all cases, be subject to parliamentary scrutiny. But typically what is known as the “negative procedure” will be used. This means either House of Parliament must take the initiative to vote against the regulation. But as Keir Starmer, the shadow Brexit secretary, pointed out in the debate, the last time a decree subject to the negative procedure was annulled by Parliament was 38 years ago.

The negative procedure may be adequate for trivial changes to EU regulations, but it’s not remotely good enough for policy changes. MPs including Labour’s Hilary Benn, who chairs the Commons Brexit committee, and Anna Soubry, the Tory pro-European, are therefore saying Parliament should decide whether a regulation is so trivial that it can be safely left to the negative procedure. If not, the “affirmative procedure”, under which both Houses of Parliament need to approve a regulation, should be used. David Davis, the Brexit secretary, has promised to discuss the idea with Soubry.

2. Pre-Brexit powers

The bill doesn’t just give ministers powers to pass regulations after Brexit. It gives them the power to do this before Brexit, in order to implement any “withdrawal agreement”. What’s more, they will have these powers even before Parliament approves any deal the government negotiates with the EU. The government could, for example, use Clause 9 to pay tens of billions of pounds to the EU without Parliament debating it.

There’s a strong case for removing Clause 9 entirely and only giving ministers these powers in further primary legislation if and when they negotiate a withdrawal agreement that Parliament approves. Failing that, these powers should only take effect if and when Parliament approves a withdrawal agreement. The government has agreed to consider this idea.

3. Power to change the Repeal Bill itself

One of the most egregious powers ministers want is the ability to change the Repeal Bill itself via regulation. This makes a mockery of the government’s promise that Parliament can scrutinise the powers it wants. After all, ministers could use Clause 9.2 to reduce even the minimal Parliamentary oversight that it promises.

4. No meaningful vote at end of Brexit process

The government has promised that both Houses of Parliament will get a vote on the final exit deal it does with the EU. But this promise is not in the bill. What’s more, there’s no provision for Parliament to have a say if Theresa May tries to crash out of the EU without a deal.

5. Loss of safeguards

The government says it is using its Repeal Bill to copy existing EU rights into UK law. But there is a prominent exception: the Charter of Fundamental Rights. Davis says Clause 5.4 won’t lead to a loss of rights. How come then that he relied on the Charter as a backbencher to win a lawsuit against May, then Home Secretary, over how legislation could impinge on the ability of MPs to have confidential communications from their constituents? Starmer raised this point to brilliant effect in the debate on the bill.

It’s not just that the Charter of Fundamental Rights will be abolished by the bill. Schedule 1.3 (1) will abolish the right for people to challenge the government on the basis that it has breached the general principles of EU law. Dominic Grieve, the former Tory attorney general, has pointed out that this removes another safeguard of people’s rights.

6. How will rights be enforced?

At present, the European Commission enforces things like the right to good quality air, and citizens can get redress by ultimately taking a case to the European Court of Justice. But the Repeal Bill gives no assurance that the enforcement of rights will be nearly as thorough in future.

7. Devolution denial

The bill transfers powers from Brussels to Westminster, even in those areas that are normally handled by Scotland, Wales and Northern Ireland. The government says it eventually wants to devolve many of these powers but is worried about fragmenting the UK’s single market unless this is done carefully. But most non-Tories, and especially the Scottish National Party, don’t trust the government to do this properly.

8. Transitional chaos

The government has finally come round to the fact that the UK will need a transitional deal after we quit the EU and before we are able to negotiate a brand new relationship with Europe. But Clause 6 of the bill could make this impossible. It says that UK courts post- Brexit will not be bound by EU law. The snag is that the EU may well insist that we have to follow EU law at least in some areas in return for a transitional deal.

9. Super-wide scope

The bill gives ministers an extremely wide power to make any regulations they consider appropriate in “consequence of this Act”. Given that the law will take us out of the EU and that the EU touches, even if only tangentially, virtually every aspect of national life, its “consequences” could be taken to include almost anything. Clause 17, which grants this power, will have to be nixed or curtailed.

Meanwhile, the bill covers “EU-derived domestic legislation”. Clause 2 makes clear that this includes any laws that “relate” to the EU. This is such a vague expression that it could cover virtually anything that has just a passing reference to the EU. Grieve pointed out that laws such as the Equality Act 2010 could be dragged into the net.

10. Dealing with deficiencies

Clause 7 gives ministers the power to make regulations to address “deficiencies” in EU rules that are copied over. This is a very low bar. As Grieve pointed out, one could argue that virtually any law ever passed was deficient in some respect. The government should only have the power to address severe deficiencies that make EU rules inoperable.

11. Possible loss of existing referendum right

The so-called Referendum Lock Act, dating from David Cameron’s premiership, may already give the public a right to a referendum on the withdrawal agreement. The combination of Clause 19 and Schedule 9 of this bill, though, gives ministers the right to scrap this act whenever they choose. This right is not even constrained by the so-called negative procedure.

12. Not enough time for debate

The government is proposing only eight days for the bill to be examined in committee. Given its constitutional significance and the poor quality of the government’s first draft, this is insufficient. David Lidington, the justice secretary, says the government is “willing to consider… very seriously and carefully” extending the time for debate if there is good reason to. Hopefully, it will keep its word.

This bill emasculates of Parliament – exactly the opposite of what the “take back control” brigade promised. What’s more, May has a track record of trying to sideline Parliament –  just think of how she wanted to trigger Article 50 starting the Brexit process without even asking MPs’ permission. This monstrosity of a bill, as Grieve rightly describes it, needs to be fought tooth and nail.

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Edited by Luke Lythgoe

3 Responses to “12 ways this monstrosity of a bill must be changed”

  • What bothers me is that Government spokesmen have been able to convince those with concerns about the Bill, to wait until later in the legislative process. I seem to recall a similar argument being deployed when there was discussion about whether to support triggering of Art.50. And so it goes on. What chances will there realistically be to affect outcomes at the Committee stage, when the Government will so obviously be able to rig the composition of the Committee? And only 8 days allocated for discussion. The Government are obviously petrified that pro-Europe Tories will come to their senses, and start voting as their honest instincts would tell them to. Will the Government be able to by-pass crucial issues such as seeking membership of EFTA or the EEA? Will anyone be able to stop the Government if they just decide to walk away from the negotiations with no deal? Last night during the parliamentary session, there were some fine and true words spoken by pro-Europe Tories. But that’s all they could offer. Words.

  • I strongly agree. It is like the Labour Party saying “The fight starts now” after their 3-line whip to ensure the triggering of Article 50.
    I have been bitterly disappointed by this supine Parliament. A substantial majority of MPs know that Brexit is an unparalleled strategic blunder (and voted Remain) yet they continue to sell the country down the river. They say they are ‘honouring the outcome of the referendum’ – but it deserves no honour at all, and it is not anti-democratic to say so.
    Andrew Adonis suggested in the Observer last week that the price for passing this Bill might be a Govt undertaking to hold a referendum on the final Brexit deal. Much as I dislike referendums, I hope that is right, though I suspect it is wildly optimistic. (His other suggestion of a Macron/Merkel offer on freedom of movement was ridiculous – which doesn’t inspire confidence that the referendum idea is a runner!)

  • dear sir
    the govt. will not survive the absolute legal and administrative chaos that will be unleashed once our membership of the eu ends
    members of parliament most be well aware of all that awaits their constiuents
    farmers ,business ,students ,
    doctors nurses ,
    the govt. will not convince the ulster unionsts, to support them on issues that will be a detriment to the province , and the border controls with the irish republic.