It’s over. The UK has finally left the European Union. It has been a long, complex and contentious journey but, as the government likes to remind us, we have now “taken back control” of our laws. That may be cause for celebration for some, but it is worth considering where our new control centre is located. How will this renewed legislative sovereignty be exercised? There are already good reasons to fear that the balance is slipping away from parliament and into the hands of an executive not known for its love of scrutiny. And that is cause for real constitutional concern.
The prospectus for Brexit was that decisions would be taken by the UK Parliament rather than EU law-making institutions. Yet the last three years have been marked not by a stronger role for parliament but by greater legislative control by the government. In the process of preparing for Brexit ministers have taken more and more law-making powers and given parliament little or no time to scrutinise new laws before they take effect.
At the start of the Brexit process, the House of Lords Constitution Committee, which I chair, recognised the unique legal challenge of disentangling the UK statute book from the system of EU laws that was woven through it. We acknowledged that the government would need some law-making powers that would be broader than would normally be acceptable in order to complete this task.
However, given an inch, the government took a mile. Numerous “skeleton bills” were introduced—bills that contained little or no detail for parliament to assess, only a series of powers for the government to make policy once it had decided what that policy should be. The powers sought were often of breath-taking scope. Wide provisions for ministers to do whatever they thought was “appropriate” to deliver Brexit went far beyond what they could justify as necessary. Using these instruments, the government amended existing laws, established statutory bodies, created new criminal offences and imposed sanctions, all under secondary legislation—which receives far less scrutiny from parliament and cannot be amended.
When the committee initially recognised that the government would need broader legislative powers than normal to deliver Brexit, we emphasised that appropriate safeguards were required. These included strengthened scrutiny procedures and “sunset clauses,” providing that ministerial powers expire after a set period of time. The government embraced our acknowledgement that greater executive powers might be necessary but ignored our proposals for parliamentary counterbalances. Few safeguards were present in the bills the government introduced, and those parliament pushed to include were invariably resisted.
Despite the executive taking almost unfettered power to deliver Brexit, the amount of time for parliament to probe some of the most constitutionally significant legislation in decades has been paltry. The EU Withdrawal Agreement Bill had just three days in the Commons and four in the Lords. The Future Relationship Bill was passed through both Houses in a single day, having been published less than 24 hours before debate began.
The government argued that parliament had been debating Brexit and the future relationship for years and so no more time was required. This was, at best, disingenuous. Leaving aside the amount of time available to consider the content of the treaties, there was very little time to examine how they were going to be implemented in domestic law. The design of those bills involved choices—ones that parliament should have had time to examine and amend.
The government’s attitude to proposed amendments has also been unnecessarily resistant. During the passage of the Withdrawal Agreement Bill in the House of Lords, an amendment to strengthen safeguards was agreed between backbenchers and Lords ministers, only to be vetoed by No 10 with the insistence that the bill remain unamended—purely for presentational reasons.
Covid-19 created a crisis that required an urgent response and presented some of the same challenges. Parliament was asked to pass bills at high speed and with limited opportunities for interrogation. Thereafter, the government has laid a succession of regulations imposing restrictions on citizens’ rights and movements, with most of them coming into effect even before parliament had an opportunity to see, let alone debate or approve them. The reasons for such urgency are understandable during the peaks of the pandemic, but ministers should have taken greater steps to ensure parliamentarians had adequate opportunity to scrutinise less urgent measures, particularly after the initial emergency legislation was passed.
The Brexit transition period is now over, and there is light at the end of the tunnel for the pandemic. We can hope for a return to normal. But what does “normal” mean for parliament now? What should “taking back control” mean?
For a start, the era of broad delegated powers, skeleton bills, constrained timetables and unusual flexibility for the government must come to an end. Parliament should be more robust in insisting on constitutionally appropriate provisions in bills that protect its scrutiny functions and demand enough time to examine new legislation properly. There should be more consultations, more white papers, draft bills and more engagement between ministers, committees and backbenchers during the law-making process.
Legislating will always lead to argument—it is the nature of political debate. But the responsibility of parliament is to hold the executive to account and the government has made that increasingly difficult in recent years. If the system does not revert to a constructive relationship then it may require parliament to think about how it takes back control, to ensure that constitutional proprieties are observed.
