Although overshadowed in the media by Hurricane Irma and another North Korean missile flight over Japan, this week has been a tumultuous one for British democracy. MPs have sat until past midnight on several days to debate contentious issues from education to media monopolies to public sector pay, each of which merits close scrutiny both politically and in the press.
However, two votes in particular stand out for the effect they may have on the future of British politics, and both have raised troubling questions for the ‘mother of parliaments’ and its sovereignty – a key buzzword for the Leave campaign in last year’s EU referendum and the most common single reason given by Leave voters for their decision.
These are the European Union (Withdrawal) Bill (commonly known as the Great Repeal Bill) and the Motion on Nomination of Members to Committees, voted on at 00.14 and 22.27 on Tuesday 12th September respectively. The former needs little introduction – the bill ostensibly seeks to smooth the process of leaving the EU by transferring EU law into UK law and allowing ministers to make changes necessary for constitutional coherence, to avoid a ‘legal black hole’ following the UK’s withdrawal.
The latter is rather more obscure, concerning the selection of members on parliamentary committees which control much of the parliament’s work. Despite their lack of a majority, the Conservatives leveraged the support of the DUP to narrowly win both these votes. Taken alone, either of these victories invokes serious ramifications for the democratic process – in conjunction, they could be a significant threat to the basic values of sovereignty and democracy.
European Union (withdrawal) bill
The ‘Great Repeal Bill’ has been attacked on all sides since its inception in October 2016, including by many of the MPs who pushed it through its first hurdle on Tuesday. Conservative MP Dominic Grieve labelled the bill “an astonishing monstrosity”, with Nicky Morgan MP claiming that its potential to limit the parliamentary process made those who supported it “true saboteurs of Brexit”. Opposition MPs have been even less reserved, with Labour’s Chris Bryant declaring the bill “pernicious, dangerous and fundamentally un-British”.
In principle, the bill is necessary for avoiding legislative chaos when the UK leaves the EU by transferring EU law into UK law. It follows that many laws will require altering to be fit for purpose, and some will need to be repealed altogether – with thousands of laws potentially needing attention, it makes sense for parliament to confer powers on ministers to enable this to happen efficiently.
However, in its present form the bill acts as an ‘unprecedented transfer of power away from parliament’, allowing the executive to make ‘any provision that could be made by an Act of Parliament’ including the creation of new regulatory institutions with law-making authority. This essentially goes beyond the ‘Henry VIII powers’, so called for that monarch’s rule of proclamations with no parliamentary oversight.
Parliament will be unable to amend this delegated legislation, and much of it will only be challengeable through annulment – yet this is extremely rare, not having been achieved since 1979. In response to condemnation from the Lords Constitution Committee, the government has touted a ‘sunset clause’ limiting these powers to two years after ‘exit day’, but this day is undefined and can be designated at will by the government.
The bill also seeks to transfer power from parliament to executive in other ways. Devolved nations will not receive the powers they currently exercise at EU level and will be prevented from making changes ‘inconsistent’ with those made by the UK government, shifting control from Holyrood, Stormont and the Senedd back to Westminster.
First Ministers of Scotland and Wales, Nicola Sturgeon and Carwyn Jones, have issued a joint statement condemning the ‘naked power grab’ and threatening to withhold Legislative Consent Motions, which are theoretically obligatory for UK governance. In the face of renewed independence movements a constitutional crisis could be disastrous for a UK struggling for stability after leaving the EU.
Rights groups have also begun campaigning against the bill, given its surprisingly specific rejection of the EU Charter of Fundamental Rights from conversion into UK law. This would lead to these most basic of human, workers and other rights potentially being stripped out of UK law, extending to environmental protections, financial regulations and countless other areas. The enforcement of many laws already in the UK statute book will also be impacted, with the possibility of punishments or damages being capped so low that legislation is effectively meaningless.
Optimistic critics of the bill still have room for hope, as the vote came after the second reading of the bill when MPs debate the main principles for the first time. It must still travel through committee stage, report stage and third reading before passing through the House of Lords and ultimately being granted Royal Assent – MPs have put forward 136 amendments to the bill, with several Conservatives threatening to oppose it at third reading unless significant revisions are made. However, one of the best opportunities to limit the bill’s flaws may well have been stifled by the Conservative victory in the vote on the selection of committee members.
Motion on nomination of members to committees
This motion covers the members appointed to the Committee of Selection, which in turn selects members for parliamentary committees which carry out large amounts of the parliament’s work. Traditionally each committee mirrors the make-up of the Commons in line with the result of the previous election, ensuring that the public are adequately represented when committees scrutinise legislation.
However, with the support of the DUP the Conservatives pushed through the motion to give itself a majority on the Committee of Selection, which appears to go against parliamentary rules. This will enable the Conservatives to grant themselves majorities on every parliamentary committee.
Opposition leaders and democracy campaigners were quick to attack this move, accusing the government of rigging the parliamentary system and overriding the results of the general election, at which Theresa May lost her majority. Conservative Commons leader Andrea Leadsom had suggested there was “historical precedent for a minority government holding majorities on standing committees”, but this occurred in the late 1970s when the Labour government had only lost its majority through a series of by-election defeats.
Downing Street claimed the motion would avoid “unwarranted delays” to legislation, but it was revealed last week that the move had been planned by Theresa May immediately after the general election and kept secret.
If passed without significant amendments, the Repeal Bill will allow Theresa May and a select group of Conservatives to scrap or rewrite thousands of laws covering almost all aspects of society. In turn, the takeover of the Committee of Selection will enable all parliamentary committees to feature Conservative majorities, preventing parliamentarians from scrutinising these legislative changes.
This paves the way for a monumental overhaul of British law by the executive with no parliamentary oversight. The Prime Minister and those supporting a so-called ‘hard Brexit’ continue to push the rhetoric that any opposition to these developments are attempts to thwart the “will of the people”, despite the fact that the greatest concern of the 52% of Leave supporters was ‘regaining sovereignty’.
It is a cruel irony that the minority government has this week manoeuvred itself into position to fundamentally restructure the country’s legal backbone through the denial of this central tenet of parliamentary democracy, while under the very guise of upholding it.