Theresa May thinks she’s got the upper hand on Brexit, but there’s a bombshell waiting around the corner

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Theresa May has agreed that parliament will vote on the deal for Brexit. And she will be hoping this promise will calm things down and give her the upper hand. But there is a bigger row brewing. The Lords are threatening [paywall] opposition to the government over another element of its Brexit plans.

Under new proposals, May’s government could receive unprecedented powers to enact and adapt legislation. All with little parliamentary scrutiny. And the Lords are not happy.

The great repeal bill

Known as the great repeal bill, the proposed legislation will drop the European Communities Act and “incorporate European Union law into domestic law”. The Act, passed in 1972, gave EU laws precedence over domestic ones.

According to current estimates, 13.2% of legislation enacted between 1993 and 2004 is related to the EU. This is the equivalent of hundreds of laws [paywall]. And it also includes elements such as workers’ rights and environmental protections.

But the proposals will give sweeping powers to the government. Although the final details of the bill are not yet known, a research briefing to the House of Commons states that [paywall]:

The Government has indicated that the Great Repeal Bill will contain delegated powers enabling Ministers to make changes to the statute book to give effect to the outcome of the withdrawal negotiations.

In other words, the government will be free to change EU law and incorporate it into domestic law. It will be able to keep the bits it wants and get rid of the bits it doesn’t. These powers are known as “Henry VIII powers”, as they allow ministers to legislate by proclamation.

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As the briefing paper asserts [paywall], this would mean a “major constitutional change”, and that the powers are:

often considered a means to facilitate government to circumvent the full legislative process

Opposition

But the government is not going to get these powers without a fight. Already, the Lords are signalling [paywall] that they will oppose the bill. And it is already being described [paywall] as a “power grab”. One Labour figure stated:

Any sniff of ministers wanting a power grab will go down very badly. If the bill signals an intention to railroad stuff through then there will be a constitutional row.

And the government is also preparing for a battle. It stated that it is prepared to revisit powers to curb [paywall] the powers of the House of Lords if they oppose the legislation.

There is also likely to be opposition from the Scottish parliament. Scotland’s Brexit Minister, Mike Russell, said that:

A piece of legislation such as Theresa May is now promising, this Great Repeal Act, will require the approval of the Scottish Parliament. A legislative consent motion will be required… Presently there is a majority against that repeal Bill, that is absolutely obvious.

Undemocratic

Writing for the UK Constitutional Law Association, Sionaidh Douglas-Scott described the “Henry VIII powers” as “profoundly unparliamentary and undemocratic”. She further stated that they are:

particularly repugnant, given that EU law has created vast networks of rights and obligations, whose subject matter – eg social policy, discrimination law, or fundamental rights – covers many matters central to individual liberty, and their repeal or amendment, even by means of primary legislation, would be highly controversial.

But Brexit Secretary David Davis doesn’t see a problem. He stated:

It’s very simple. At the moment we leave, Britain must be back in control. And that means EU law must cease to apply. EU law will be transposed into domestic law, wherever practical, on exit day. It will be for elected politicians here to make the changes to reflect the outcome of our negotiation and our exit.

It’s not “very simple”, though. And with hundreds of laws due to change, it is likely to be extremely complicated, especially as the courts will have to adapt to a new legislative framework.

Sovereignty

People voted for Brexit for all sorts of reasons. But one of the recurring themes was the supposed sovereignty of UK law. And this sovereignty will not be gained through sweeping powers that will allow ministers to pick and chose which bits of EU law they want to keep.

There may be a parliamentary vote on the agreement that May’s government makes for exiting the EU. And while this is welcome, it is not enough when the potential powers in this bill are considered. It is down to all of us to oppose it, and ensure the government is not given the power to decimate some of our fundamental rights without debate.

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