The flaws in the Brexit Withdrawal Bill cut to the very heart of our democracy

For many people, the Withdrawal Bill debate will seem arcane. But the potential loss of rights is a worrying one

September 14, 2017
The Bill formerly known as the "Great Repeal Bill" has passed. But do we need a rethink? Photo: PA
The Bill formerly known as the "Great Repeal Bill" has passed. But do we need a rethink? Photo: PA

In the early hours of Tuesday morning, the European Union (Withdrawal) Bill—formerly known as the ‘Great Repeal Bill’—survived its second reading in the House of Commons, with a small but workable majority. It was, according to David Davis at the opening of the debate, “an essential step” in “the historic process” of honouring the Referendum vote.

Perhaps—but bumpy days lie ahead. Just one day after the Bill survived the vote, 157 Amendments to it had been tabled, many of them by Conservatives. Speeches by both Conservative and Opposition MPs during the 2nd reading debate illustrated that its provisions cause great concern across the political spectrum.

A look at some of the more critical comments reveals a deep unhappiness with the Bill. Chris Bryant, speaking in the Monday night debate, declared passionately: “This bill is utterly pernicious. It is dangerous, it is fundamentally un-British and it has at its heart a lie.’ Hilary Benn was only slightly more measured: “its flaws and weaknesses are fundamental”, he said, adding that the government “should go away and do their homework again.” Former Conservative Attorney-General, Dominic Grieve described the Bill as an “astonishing monstrosity.” Outside the House, Cambridge Law Professor Mark Elliott suggested that “to say that it is byzantine in nature would be to do a disservice to the Byzantine Empire.”

Just what are its critics so exercised about? And was Davis right to label this opposition “vacuous criticism”? It is certainly worth stressing that no-one—not even the Bill’s most serious critics—doubts that some form of legislation is necessary to ensure that the law is in good shape when the UK exits the EU.

In its current form, however, the Withdrawal Bill stands to produce the very chaos and legal uncertainty it is supposed to prevent. The Bill has been meticulously analysed elsewhere, including in Prospecthere, but an extremely brief recap reminds us of its most controversial points.

First, "while ensuring that former EU law is converted into national law by Brexit day, in order to ensure legal continuity," it also gives Ministers huge powers to “to prevent, remedy or mitigate” what it terms “failures or deficiencies of EU law” where the Minister deems it “appropriate”. This terminology is both vague and, apparently, limitless. The Withdrawal Bill grants hugely broad ministerial powers which could be exercised to overturn primary legislation, placing important protections, such as workers' rights, at risk.

There is also no viable mechanism within the Bill which would allow parliament to adequately scrutinise how these powers are exercised. Most of these ministerial powers can be issued as Statutory Instruments using the so-called “negative procedure,” which means they will be subject to the bare minimum of parliamentary scrutiny. In any case, there will be little time for MPs to scrutinise them—by Davis’ estimate, there will be at least 800-1000 items to be considered by Brexit day. Brexit was meant to be about ‘Taking Back Control,’ but the huge ministerial powers this Bill foresees remove power from Parliament and put it in the hands of Ministers.

As if to underline this, the Government won another important vote on a separate but crucial matter enabling it to take control of a powerful Commons committee (the little-known Committee of Selection), despite not winning a majority at the general election (which parliamentary rules would appear to require). This Committee decides the makeup of other parliamentary committees, and crucial here are those committees that will deal with the many statutory instruments needed to effectuate Brexit.

Transferring power from Parliament to Executive is not, however, the limit of the Bill’s faults. It also specifically excludes the EU Charter of Fundamental Rights from conversion into national law, which means that important human rights will no longer be enforceable in the UK post-Brexit. And the Bill has annoyed devolved nations (in what is described as a ‘power grab’), by failing to return to them powers currently exercised at EU level, but which fall within devolved competence. It is unlikely devolved parliaments will give their legislative consent to the Withdrawal Bill, so a constitutional crisis looms.

The number of Amendments tabled immediately after the Bill survived its key vote suggest that Parliament will not be completely supine. Because this is a constitutional Bill, its committee stage will be in the whole House, rather than in a small committee. More MPs will have a chance to speak, although the time allotted for debate is inexplicably much less than that for the similarly constitutionally crucial European Communities Act and Maastricht treaty.

Of course, time is of the essence, given that the Article 50 clock is ticking—but, as this is the most important constitutional change for generations, and a task of huge complexity and magnitude, it is crucial to get it right. Amendments may bring about repairs to this Bill, improving some of its clauses on ministerial powers. But will this be any more than spanner work when a complete overhaul is needed?

For many people, the Withdrawal Bill debate will seem arcane, bringing to mind, as Quentin Letts put it, “hours of dusty debate about statutory instruments, the Procedure Committee, the ‘proper triage-ing’ of Bills, ‘Henry VIII powers’ and secondary legislation arrangements.” But the Withdrawal Bill debate goes to the very heart of democracy—to the ability of Parliament to question and hold to account the government, to the protection of our human rights. If we dismiss debate over the Withdrawal Bill as ‘eye-glazing’ we miss the crucial issues of what we stand to lose. And when we wake up it will be too late.