1st April 2017
Yesterday the Brexit secretary, David Davis, announced plans to encourage a “smooth and orderly exit” from the EU. The so-called great repeal bill, which would create temporary powers to let ministers amend thousands of laws, was immediately condemned as a “shameless power grab” by the Lib Dems, while the campaign group Liberty said it left “gaping holes where our rights should be”. They have a point: the bill will give the government powers far beyond those necessary to oversee the UK’s exit from the EU, and allow it to sideline parliament as a decision-making body.
Under normal circumstances, if the government of the day wants to repeal or change an act of parliament, it must win a vote in parliament. Those we elect have the definitive say in how the country is governed. This bill, however, will enable ministers to amend acts of parliament without a vote. These so-called “Henry VIII” powers – described by Lord Judge, the former lord chief justice, as a “self-inflicted blow” to parliament that should only be used in a national emergency – will make ministers the ultimate decision-makers.
The great repeal bill will include exceptionally broad powers. Around 14% of primary legislation incorporates a degree of EU influence. The bill will thus give ministers greater powers than parliament in relation to more than a 10th of all UK law. These powers will be largely discretionary. The white paper on the bill contains no legal threshold for the use of Henry VIII powers. The only democratic check proposed is the process used to approve statutory instruments. This can be a “negative approval” process, in which decisions of the government are nodded through without a vote.
The only limit that the government proposes to its use of Henry VIII powers is a guarantee that they will only be used for “technical amendments”. Yet the decision on what is classed as “technical” appears to reside with the government. Ministers will only be accountable to themselves. This opens the door for a bonfire of regulations disguised as trivial changes. The government’s own example of a “technical amendment”, removing consultations required before oil companies are permitted to build in protected habitats, will have far-reaching substantive consequences. It removes a key level of scrutiny from the planning process and makes it significantly easier for oil companies to drill at the expense of endangered species.
The Henry VIII clause is not the only exceptional power proposed for the bill. The white paper promises to empower the government to implement parts of the UK’s exit agreement “without delay” in a “separate process” seemingly in advance of parliamentary approval. The paper offers no detail about which parts of the agreement will be implemented before parliament votes. It appears that this exceptional power will be available entirely at the discretion of ministers. The government has already contrived to deny parliament a meaningful vote on the exit agreement. These powers will reduce parliament’s role to rubber-stamping laws that have already taken effect.
The white paper also hints at a worrying intention to avoid accountability altogether. It talks of balancing the need for scrutiny against the “speed of this process”. Yet the time available for scrutiny is entirely within the government’s gift. If the government publishes its plans at the earliest possible opportunity, there is no reason that there will not be adequate time to subject them to appropriate scrutiny. If, on the other hand, the government delays its decisions until the last minute, parliament will be faced with a choice between waving proposals through, or inviting legal chaos if the UK leaves the EU without the appropriate changes in place.
As we get closer to Brexit day, those attempting to hold the government to account can increasingly be accused of “endangering Britain’s future”. In other words, the government has laid the foundations for the perfect discourse with which to silence criticism.
Most concerning of all, it is not clear that any of this is necessary. The white paper lists several proposed “technical amendments”, including (for example) a requirement for the UK to make regular reports about the state of its inland waterways. But these rules are not generally contained in acts of parliament. They are generally found in secondary legislation. This is a lower class of law, generally dealing with technical matters, that can be altered without a vote in parliament. The white paper does not contain a single example of a “technical amendment” that would require a Henry VIII power.
It seems such powers are either entirely unnecessary or, at minimum, certainly not required on the broad scale envisaged in the paper. The great repeal bill will thus give the government broader powers, exercised with less accountability, than any peacetime administration in living memory. Yet the government does not seem prepared to fully disclose what they will be used for or why they are needed at all.