It’s about democracy, stupid: Why Remainers and Leavers should both support amending the Repeal Bill

by Sam Fowles

The EU Withdrawal Bill (formerly called the “Great Repeal Bill”) continues its passage through Parliament this week. Theresa May claims she is delivering the “will of the people”, yet she is doing the opposite. The Bill will grant the government such egregious powers that, in relation to a swathe of vital legal rights and protections, it no longer has to take the “will of the people” into account.

The bill is fixable. This should unite both “leavers” and “remainers”. Both claim to support democracy. The “leave” campaign based their referendum pitch on restoring the sovereignty of parliament. If they were serious then they should unite in supporting amendments to the Bill.

The British constitution offers us, as citizens, two avenues for holding the government to account: Elected representatives in Parliament make decisions about which laws should govern us and what powers the government should enjoy. The courts allow individuals to hold the government to account for misuse of its powers. The Bill closes off both avenues of accountability. The Henry VIII powers allow the government to overturn primary legislation, the sort that must usually be approved by both the Commons and the Lords, without winning a vote in Parliament. Often a law containing such extensive powers will include a legal “test”, ensuring that the powers can only be used if certain conditions are met. In other words: when it is really necessary. If ministers use the powers without meeting the test, the courts can step in to protect individual rights. This Bill allows ministers to use Henry VIII powers, effectively, at their own discretion. As a result, there is no way for individuals to seek redress in the courts if the powers are misused.

By choking off these avenues of accountability, the government can remove important individual rights and protections without any democratic scrutiny. This means that key protections for workers, the environment, human rights, and consumer protection could disappear overnight. If the Bill is passed in its current form, there will be little that ordinary people, or even elected representatives, can do about it.

Fortunately, we can fix the Bill without delaying Brexit. Put simply: we just need to make sure it does what it was supposed to do all along. When Theresa May first announced the Bill, it was to be a measure that transferred the acquis of EU law into domestic law, so that the UK would not fall off a legal “cliff edge” on Brexit day. It doesn’t need to be any more than that. While some changes must inevitably be made, there is a big difference between tweaking the law to ensure it still works outside the context of the EU, and fundamentally altering it to remove key legal rights.

The first step then is to amend the Bill to ensure that the substance of the rights and protections we enjoy as a result of EU law will not be impacted by the Bill. David Davis has said, on the floor of the House of Commons, that he will not use the bill to make substantive changes. If this is true, there is no need for the Bill to include powers that allow him to do so. Brexit can be accomplished without them. Take them out. The second step is to ensure that our rights and protections are still effective after we leave the EU institutions that currently enforce them. There’s little point in having a right if you can’t enjoy it in practice. If the government can’t accomplish Brexit without removing a particular right or protection, then it should ask Parliament for permission first. This is the third step: restoring Parliamentary scrutiny of the government’s decisions regarding our laws.

To oppose the Repeal Bill or advocate amendment is not the same as opposing Brexit. Democrats can accept that our laws may change after we leave the EU. But that change must be achieved through open and accountable processes, not though a bill that subverts the fundamental tenets of our constitution. If the government wants to change the rights and protections we currently enjoy then it should do it the democratic way: with a public debate and a vote in Parliament. Theresa May is fond of talking about “British Values”. There are surely no more fundamental British values than democracy and the rule of law. It’s time to put both back into the Repeal Bill.

Sam Fowles is a Barrister and Academic. His paper, “How To Fix the Great Repeal Bill” is available at

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11 Responses to “It’s about democracy, stupid: Why Remainers and Leavers should both support amending the Repeal Bill”

  1. Anon says:

    If Sam Fowles, Barrister and Academic, is a recent newcomer to our political sphere, I can forgive him the above article. But, he has to realise something – past governments have used the mechanisms he describes above; if we are referring to Statutory Instruments, that is.

    The people of the UK have had successive EU treaties imposed upon them, without their consent, due to a Buggins’ Turn three party alliance affair where our MPs are assumed to be representative of the people on the issue of the EU – an issue, it has become clear, on which the UK people have major reservations.

    Once signed, these treaties necessitated a whole raft of legislation to go through our Parliament without anybody outside consenting: I had the indignity of having something known as ‘EU citizenship’ bestowed upon me.

    I applaud his efforts to make Parliament more accountable – I’m all for a more direct democracy – but I have the feeling that this is more to do with foiling Brexit and scoring political points than being really concerned about democracy.

  2. John P Reid says:

    Opposing the government who are respecting the mandate, the public voted on,to have Brexit,is not defying the electorate?

    What nonsense
    By the way, you say it’s not.. stupid, reflecting clinging quote to get votes yiu have to let the public trust yiu with their money

    But this isn’t the party trying to get votes, so saying to our members. That we can defy Brexit, and say stupid, to those who feel this is wrong ,is very offensive

  3. Tony Benn would have voted against this Bill. It is a power grab by the Executive. It is the very opposite of Taking Back Control. Although note that, unlike with Article 50, there is most unlikely to be any action against any Labour MP who voted in favour, at least unless it passed on the votes of Labour MPs who had cancelled out Conservative ones. But Tony Benn would have voted against this Bill. It is a power grab by the Executive. It is the very opposite of Taking Back Control.

  4. Tafia says:

    This Bill needs to pass. Ministers need the ability to adjust legislation unilaterally – and remember, come 2022 they will be Labour Ministers (unless Labour don’t believe they can win the next election.)

    The alternative is Parliament having to go through things regulation by regulation, proposing amendments and voting. That will prevent Parliament dealing with anything other than EU stuff for a decade.

    We don’t live in Nazi Germany nor the Soviet Union – give Ministers (under the guidance of civil servants) the tool to do the job. Pass the Bill.

  5. Ex labour says:

    @Anon and Tafia – agree 100%.

    In the case of Human Rights, there has always been a conflict with democracy. Globalists, usually from the Left, have used this mechanism to undermine democracy for years. In supporting HR they assume that the world population share a universal set of values and are culturally aligned. Complete bollocks of course, but its never stopped them for trying to defeat legislation produced by a democratically elected government via the ECHR.

    One of the prime reasons the public want to leave the EU is the imposition of EU laws and perverse decisions by the ECHR and we should have a mechanism in place to override these if parliament (Tory or Labour) should chose to do so.

  6. Anne says:

    Agree with this article – the Bill should not be passed in its present form.

  7. Tafia says:

    Looks like any Tory revolt against the Bill will be minimal at most. Tory Arch-Remainer Nicky Morgan has just announced she will be voting in favour.

  8. Martin says:

    @Tafia: “The alternative is Parliament having to go through things regulation by regulation, proposing amendments and voting.”

    That is how our democracy works. Any attempt to bypass it is a step on the road to authoritarian hell. I don’t care which set of muppets is in charge, they should be answerable to parliament always, for everything.

    “That will prevent Parliament dealing with anything other than EU stuff for a decade.”

    You should have thought of that in June last year.

  9. Tafia says:


    Except that to do that will take years and years and years of Parliament doing absolutely nthing else at all – nothing. Which would mean Labour entering pwer in 2022 (you do think you can win yes?) unable to do anything at all because they will have to waste an entire Parliament just doing this.

    Is that what you want?

    Apart from which, this is no more than a glorifies Statutory Instrument and only a dullard can’t see that.

  10. John P Reid says:

    Let’s ignore democracy,and not support. Brexit,because the public will follow labour on that, not

  11. John p Reid says:

    Martin, so the fact parliament,is spending too much time,dealing wuth the EU, is the electorates fault for voting Brexit,and can be blamed, because wanting siverignity, means not getting other laws through, rather than doing both, and we should have not wanted soverignity!

    Blair the electorate for voting thr wrimg way, that way, that criticism, will make them realize they should vote the way you tell them next time,

    That worked well in 1983

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