Legislating for Brexit: Parliament is being written out of the process



As the drama and politics continue to swirl around Brexit, the government is using domestic Brexit legislation as the perfect opportunity to seize unfettered law making powers.

The sovereignty of Parliament was a central theme in the EU referendum and a key promise was made that Parliament would ‘take back control of our own laws’. Yet several pieces of Brexit legislation reveal that control of lawmaking will not rest with Parliament after we have left the EU.  Instead, the executive and ministers have been given unprecedented powers to change our laws, without proper parliamentary scrutiny. This undermines both parliamentary sovereignty and accountable law making.

The Government has so far announced a total of 12 Brexit bills, designed to reflect our withdrawal from the EU in a range of areas, from agriculture and fisheries, to trade and customs.  In each of these policy areas there will, undoubtedly, be many technical changes to make. As Parliament has limited time to deal with a whole host of issues relating to Brexit, it would not be practical for MPs to spend time scrutinising and approving every single change in law where these technical changes are needed.  

This is where delegated powers come in, which are only meant to make technical or administrative changes. The problem is that increasingly such powers have seeped into policy areas as seen when delegated powers were used to abolish maintenance grants, change voter registration and allow fracking in national parks. The other issue is that the current scrutiny system of delegated powers is not fit for purpose and does not provide for proper parliamentary control of delegated legislation. The most common form of delegated legislation are known as statutory instruments (SIs) .MPs have very little role in scrutinising SI- they can't be amended and are only very rarely rejected even when there is significant opposition.

Delegated powers feature heavily in Brexit legislation- in fact they are to be found in every piece of Brexit legislation introduced to Parliament so far. Take the Agricultural Bill for instance, it seeks to establish a new system for payments to farmers and landowners after leaving the EU Common Agricultural Policy (CAP). It proposes 25 delegated powers, of which five would allow ministers to modify Acts of Parliament (known as ‘Henry VIII powers’); in the Customs Bill - which plans to enable the UK to run its own customs system - ministers are given well over 150 separate powers to make tax law for individuals and businesses; and the EU Withdrawal Act allows ministers to correct ‘deficiencies’ in retained EU law as they considers appropriate. What constitute a deficiency and what someone ‘consider appropriate’ is of course subjective. The broad scope of these powers leaves open the possibility that powers handed to ministers may be used to amend acts such as the Equality Act 2010, the Data Protection Act 2018 and the Modern Slavery Act 2015, without MPs having a proper say in the matter.

Taking back control of our laws was a central theme in the EU referendum. It is also, according to Theresa May, what her Brexit deal has succeeded in delivering. But who is really taking back control when it comes to legislating for Brexit? Is it elected MPs, or is it an executive that uses Brexit legislation to make itself ever more powerful?

Malene Bratlie