Environmental lawyers ClientEarth have uncovered a new threat to UK democracy contained in the EU Withdrawal Bill, which adds fuel to the fire of the bill’s Henry VIII powers.
A new legal opinion by leading QCs revealed today that buried deep in the detail of the Bill, ministers are trying to give themselves substantial powers that would allow them to change laws at will.
A cross-party group of worried MPs and Peers have moved swiftly to block such an unconstitutional move and back new amendments to curb these powers, as the Withdrawal Bill is debated in the House of Lords this week.
Henry VIII powers allow the government to amend laws without full parliamentary scrutiny. The government has tried to justify this by saying it needs to make adjustments to EU law so that it can operate properly after Brexit.
But unlike the Henry VIII powers, ClientEarth has found that there is no time limit placed on these powers by a sunset clause and no condition that they can be used only to correct problems that arise from converting EU law into UK law.
Under the current bill, hundreds of UK laws that originated from the EU (retained EU law) will be categorised as subordinate legislation, no matter how important the contents are. This would make it much easier for ministers to amend or even repeal retained EU laws in the future.
ClientEarth Director of Programmes, Karla Hill, said: “The situation is much worse than we first feared. Ministers will be able to change laws without proper scrutiny by parliament, way beyond the period of us leaving the EU.
“In its current form, the EU Withdrawal Bill gives ministers so much political power that it will be like handing them Trump-like executive powers. The Bill will downgrade the status of essential UK laws that safeguard everything from workers’ rights to the environment.
“People across Britain should be seriously concerned that our democracy is being tampered with, for the long term.
“These powers make a mockery of the parliamentary process and lawyers are deeply worried. Ministers cannot be allowed to operate in the shadows at the expense of parliamentary sovereignty.”
The new powers, uncovered by a QC opinion commissioned by ClientEarth, have been described as “concerning” by lawyers from Blackstone Chambers. Pushpinder Saini QC points out that “retained EU law may deal with matters of such importance that they would in a domestic context be dealt with in primary legislation”.
The lawyers give the example of a power in the Wildlife and Countryside Act, which could be used to remove species like barn owls and kingfishers from protected lists once we leave the EU. Currently, these species cannot be removed because their inclusion is required by EU law.
An amendment to the Bill, supported by members of the Lords Constitution Committee, seeks to ensure that retained EU law can only be modified by an Act of Parliament once we have left the EU, as promised in the Government’s initial white paper.