Summary: The Great Repeal Bill relies extensively on the use of secondary legislation to bypass parliamentary scrutiny of the great majority of laws being repatriated. On the most cursory reading of that Bill it will be disastrous for Parliamentary democracy. It will bypass Parliament almost entirely in a way that Henry VIII (and indeed Jacob Rees Mogg as leading candidate to replace Theresa May) would heartily approve of.
The Great Repeal Bill relies heavily on use of the so-called Henry VIII powers to bypass parliamentary scrutiny. It basically allows government ministers to decide when any law can be changed in a whimsical way without Parliament’s approval. Think about George Osborne changing substantially the tax credit rules.
Even Tory MPs are up in arms about this. Dominic Grieve, the Tory MP noted in the Evening Standard “Worryingly, it seeks to confer powers on the government to carry out Brexit in breach of our constitutional principles, in a manner that no sovereign Parliament should allow.” The Government wants us to trust them to get it right! Given that we don’t trust them to get anything right what chance here?
How will this actually work? Let’s start with the very first clause of the Repeal Bill. It says “The European Communities Act 1972 is repealed on exit day.” We will find in the Bill that “exit” is defined as “such day as a Minister of the Crown may by regulations appoint.”
This means that what is being proposed is that a minister simply gets to decide when our membership of the EU ends. There will be no way that Parliament could interfere with this. It simply needs a Minister of the Crown to make the decision. It is difficult to imagine any proposal which is so diametrically opposed to the promise of “taking back control” which was so prominent in the Leave campaign.
In fact it is probably worse than you imagine. In 18 months time most people believe that Theresa May will have been replaced as PM. On the basis of current popularity polls amongst Tory party members the most likely PM then would be Jacob Rees Mogg, the MP for the 18th-century. As a very hard Brexit supporter, and if the negotiations have got where most people believe (i.e. nowhere), Jacob simply has to say “we are out”. That will be that!
There are many thousands of pieces of legislation that are being moved under the Great Repeal Bill. In practice most of the changes that will be made by “ministers” will actually be made by civil servants and many of those will be in the Home Office. This is the same Home Office that produced the extraordinarily nasty immigration proposals that were leaked a few days ago to the Guardian.
These same civil servants will still be there in the Home Office making decisions, passing them to ministers for rubberstamping. The Home Office has for many years developed a reputation as being one of the nastier departments. Under Theresa May is became particularly vindictive and controlling. Do we really think it is safe to leave the government to do as it likes with our laws? Dominic Grieve is absolutely right in saying that secondary legislation could be carried out “in a manner that no sovereign Parliament should allow”.