Last week Theresa May triggered article 50, starting the formal process of leaving the European Union. The rallying cry of the referendum was to ‘take back control’ - but now we are leaving the EU who is really taking back control? Right now it looks like the answer is - the government.
Here at Unlock Democracy, as part of our Democratic Brexit project, we’ve been looking at the process of leaving the European Union - everything from triggering article 50, conducting negotiations, passing the Great Repeal Bill, and making a deal, to deciding which EU laws we keep, amend or repeal after Brexit. We’ve been looking at what role Parliament; the devolved governments; and the people will play, and and what that means for democracy. What we found may worry you.
When it comes to Brexit the government has all the power
The government - and by this we mean the Prime Minister and cabinet ministers - have special powers known as royal prerogative powers. These are powers that were originally used by Kings and Queens but over time, as the UK has evolved into a democracy, have been given to Ministers. They include things like the power to grant honours, the appointment and dismissal of ministers, and strangely the ownership of wild swans, sturgeon and whales. The problem with these powers is that the government does not have to consult anyone whilst using them, not even parliament. It is difficult for Parliament to hold the government to account when using them - so the government can pretty much do what it likes.
Importantly for Brexit, prerogative powers include the power to make and break treaties. A treaty is any formal agreement between states and so any agreement made as a result of Brexit will be a treaty. This means that government is able to formulate a negotiating position, conduct negotiations and make a deal without needing to consult or even tell anyone about it. The referendum was a yes/no question, it told the government that the people wanted to leave the EU but it didn’t tell them what type of Brexit people wanted. Now these decisions - the most important decisions of our generation - will be made by a handful of people behind closed doors.
The government can completely ignore the devolved governments
Brexit has shown just how powerless the devolved governments are when it comes to influencing the central UK government. Despite claiming that ‘strengthening the union’ was a key priority in Brexit, Theresa May has largely been ignoring the wishes of the Scottish, Welsh and Northern Irish governments. And she can get away with it. The very existence of the devolved parliaments and assemblies is dependent on Westminster; at any moment Parliament could vote to take all their powers away! With calls for another referendum on Scottish independence and important questions about Northern Ireland’s border with Ireland it’s unclear whether the union will survive Brexit.
The government is seeking even more powers
Article 50 starts the negotiation process but to actually leave the EU, Parliament will need to pass a bill that repeals the law that made us a member. The government says they will do this with a bill they are calling ‘The Great Repeal Bill’. The bill will also put all EU law into UK law so that our rights, freedoms and laws don’t suddenly disappear on the day we leave the EU. The problem is that most of these laws won’t make sense in UK law if we just ‘copy and paste’, for example, many will contain reference to EU institutions we no longer have a relationship with.
To solve this problem the government wants to be given special powers - some of which are known as Henry VIII powers - to make changes to the law without going through Parliament. But as we’re sure you can imagine if they’re named after a tyrannical monarch they are not necessarily a good thing. Allowing Ministers to change laws without consent from MPs is dangerous for democracy. The government says these powers are intended to be used to make minor administrative and technical changes - but what’s to stop the government using them make policy changes behind Parliament’s back? Right now it looks like nothing!
The government has used these powers to make major changes before - things like introducing the rape clause for tax credit claimants, abolishing maintenance grants, allowing fracking in national parks and major changes to voter registration were done using delegated powers. The government says Parliament will look at the powers and stop the government doing this but the system of scrutiny is so bad that most MPs won’t even know when the government is using them! There’s a risk that the government will make changes to our clean air standards, our workers’ rights, or maternity protections without consulting Parliament.
Parliamentary sovereignty means that only Parliament should be able to make, change or amend laws. We’re worried about this government power grab and you should be too!
So what should be do about it?
There’s lots of things we can do to stop the government being so powerful, make our politics more democratic, and avoid a constitutional crisis. We’ll be setting them out in detail in our Democratic Brexit report that will be published soon.
Ultimately we think we need a written constitution. But in the meantime we need to make sure that it really is the people taking back control from the EU, not the government! If Theresa May really wants to “ represent every person in the whole United Kingdom – young and old, rich and poor, city, town, country and all the villages and hamlets in between” then she needs to involve the people in the decisions being made about Brexit. We need a democratic Brexit, not an establishment Brexit!