Love Brexit or hate it? Our members hold both views, and some in the middle. Whether you think Brexit was the greatest unforced error in modern times or a historical triumph of British sovereignty, there’s one thing everyone can agree on — we didn’t vote to give up fundamental rights and the rule of law.
But the way the Repeal Bill (now officially known as the EU Withdrawal Bill) is written, that’s what’s at stake. We were promised a better Britain, but without a change in the approach to this Bill, we risk leaving our protections against unfairness, inequality and abuse of power behind in Brussels.
The Repeal Bill purports to do two things. Firstly, it copies and pastes a freeze-frame “snapshot” of EU law into domestic law as something to be called “retained EU law” – which means we keep it after exit day. Secondly, it gives ministers powers usually left to elected representatives in Parliament – the so-called Henry VIII powers.The government says it is introducing these powers in order to make legislative changes needed to ensure that retained EU law works properly, and to implement the withdrawal agreement when that’s done.
Unfortunately, once you start picking through the technical drafting, it becomes clear that the Repeal Bill represents a minefield of threats to legal rules all of us in the UK rely on to protect our rights – and a massive transfer of power to bureaucrats.
The breathtaking scope of powers Parliament will be surrendering to ministers to make law is unprecedented in UK history. It is a step away from accountability to the voting public. The Repeal Bill is so vague and uncertain in its terms that, other than some specific carve-outs, there are effectively no limits on what ministers can do when wielding the delegated pen and eraser.
The Repeal Bill will let ministers enact new laws about any topic once covered by EU law (so-called “secondary legislation”) without anything like the democratic scrutiny our parliamentary democracy is founded on. It lets ministers amend laws previously made by our elected representatives in Parliament, again without significant scrutiny. In other words, parliamentary sovereignty — something so cherished in this country — could easily be ridden roughshod over by civil servants who will never have to account for their decisions at the ballot box.
One of the starkest examples of why this is so dangerous lies in the fact that ministers will – as in so many areas – be able to use their vast delegated powers to take away, or unfairly dilute, rights and equality protections that ordinary people in the UK currently enjoy.
The simple fact is that some of our hard-fought rights are written down in EU documents and not in domestic ones. Why should that mean we lose them?
This summer, Liberty’s client John Walker secured equal pension rights for LGBT couples in the UK Supreme Court based on part of EU law that requires equality. Without that right, and the ability to go to court and enforce it, UK law would have let private companies go on denying couples full access to pensions simply because they’re gay. But the Bill expressly denies the right to rely on principles of EU law, such as opposing discrimination – leaving John and others like him without remedy against unfair treatment.
Many other rights, from women’s equality to privacy and workplace protections, could come under the knife or be watered down as ministers transpose laws onto the statute books.
The government claims it doesn’t intend for that to happen. If that’s the case, why won’t they put it in writing, in the Repeal Bill?
It’s not as if they don’t know how. The Bill has a very clear provision preventing ministers from using their new superpowers to raise taxes, but nothing to stop them from lowering rights.
With so much at stake, ministers saying “trust us” just isn’t enough. We need a concrete commitment to a People’s Clause: amendments that will ensure no rollback on our rights in Britain after Brexit. What Amnesty International UK and Liberty are calling for is simple – a promise in black and white in the Repeal Bill to make sure leaving the EU doesn’t mean people losing their rights.
Corey Stoughton is the advocacy director for Liberty and Kate Allen is the director of Amnesty International UK.