The Great Democracy Robbery

The Great Repeal Bill has been described as a “naked power-grab” and is predicted to spark an unprecedented constitutional clash with the Scottish and Welsh governments. There are at least a few reasons as to why it is so controversial.

First and foremost of these is that it violates the fundamental cornerstone of British democracy that asserts that “Parliament is sovereign”. It is because of this principle that referenda are, thankfully, remarkably rare in the UK (in fact, there have only been three called nationwide since the foundation of the Union in 1707). Parliamentary sovereignty in the UK is the unwritten recognition that the will of Parliament is supreme, and that the will of the Monarch or indeed, the will of the people, must not trump the ability of our democratically elected representatives (and the Lords) to create, amend or repeal any laws as agreed in accordance with parliamentary process.

The Great Repeal Bill makes use of archaic sweeping powers, under a law drafted by Thomas Cromwell, and sanctioned by Henry VIII in 1539 – prior to the Union of Parliaments, which lend the Government sovereignty over Parliament. That is to say, the Government can effectively pass or repeal statute without having to debate the matter with MPs or a vote in Parliament, and has essentially complete executive control.

It is worth reflecting, if Theresa May had won the sweeping majority that she intended at the 2017 General Election, Parliament would not have the ability to stand in her way

To be fair, given the sheer volume of legislation that the Government needs to translate from EU to UK law (cited as “tens of thousands” but an actual number is hard to determine) in a very short timescale does mean that a pragmatic approach such as this needs to be enacted. Primarily, the Government intends to use these powers to simply ‘lift and drop’ all EU law into UK law, but where the controversy arises is that the Government does not intend to relinquish these powers immediately, but to retain them for a further two years, to prune and shape legislation from the EU as they see fit, without parliamentary process.

The second area of controversy, is that The Great Repeal Bill proposes, with immediate effect, to drop the European Charter of Fundamental Rights, and not translate this to domestic law upon EU exit. The charter underpins basic human rights, such as the right to life, and prohibition of torture and slavery; but also data privacy, freedom of speech and expression, equality, workers’ rights, access to health care, presumption of innocence and the right to a fair trial. It would be over dramatic to imply that UK citizens would lose all these rights with immediate effect – many of these are legislated for elsewhere in EU and domestic law, but there are concerns that to do so would pave the way for a weakening of workers’ rights and the protection of personal data (e.g. Snooper’s Charter).

Understandably, there is consternation that any Government seeks to give itself unfettered executive power

Thirdly, the devolved administrations in Scotland and Wales have expressed alarm at a perceived Westminster “power-grab”. The Scotland Act works on the principle that all powers that are retained to Westminster are specified in the devolution acts, and that everything not specified, is therefore devolved to Holyrood. The Government in Westminster argues that areas that were reserved to Brussels, were not included in the Act as they could not be retained by Westminster, but with EU exit, it is time to re-assess EU law that should be retained and not devolved. The Scottish Government see this as a weakening of the devolution settlement and have confirmed that, in its current format, they will not consent to the Bill.

Understandably, there is consternation that any Government seeks to give itself unfettered executive power, and this was always going to be an area of controversy. At the same time Parliament recognises the need for pragmatism if the UK is to have a hope of making the required number of legislative changes in the time remaining. My view is that such executive power must be used with extreme caution, and the scope for which the powers can apply must be limited only to the essential areas required. All other areas must still be subject to debate in Parliament, if we are to honour the principles of democracy in this country.

It is worth reflecting, if Theresa May had won the sweeping majority that she intended at the 2017 General Election, Parliament would not have the ability to stand in her way and force amendments on the Bill. Having returned a minority Conservative government, Parliament is much better position to reach a sense of collaborative consensus and reach a sensible EU exit arrangement than we would otherwise have faced.


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One comment on “The Great Democracy Robbery

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