The UK’s new Brexit legislation has created a ‘democratic deficit’ – a myth before, but now a reality, giving enormous powers for ministers to make and rewrite laws directly. This is a potentially poisonous feature of the UK constitution.
The European Union was frequently criticised for being undemocratic. Unjustly so, because it is not true that EU laws were being made by ‘unelected bureaucrats’. EU laws are made jointly by the directly elected representatives in the European Parliament and representatives from individual governments, there through their own country’s electoral systems. Nevertheless, the narrative of laws made by ‘unelected bureaucrats’ was a persistent one. Perhaps this was an expression of frustration and a wider loss of trust in the institutions that govern us.
Whatever your views on Brexit, leaving the EU could have been an opportunity to address that perceived lack of proper democratic law-making. But the European Union (Future Relationship) Act, adopted in a day at the end of 2020, does just the opposite. The Act, which gives effect to the Trade and Cooperation Agreement between the UK and the EU, contains general implementation provisions that empower ministers – in Westminster or in the devolved administrations – to make laws directly, including primary legislation that would normally be made by parliament. In terms of what these laws can change, the subject does not have to be immediately necessary to implement the Trade and Cooperation Agreement with the EU; such laws merely have to be somehow ‘related to’ the Trade and Cooperation Agreement or the other agreements with the EU. Given that EU legislation, one way or another, affects virtually every area of law and policy, this is an extraordinarily broad scope of powers for ministers. Moreover, these powers are not limited to some temporary transitional period, with a return to normal parliamentary legislating in a year or so, say. Ministers could still be using these powers to make laws directly a decade from now.
What does this mean in practice? For legislation at EU level, the process of law–making would typically take one or two years, providing time for those affected to make their views known, and multiple opportunities to influence the process along the way. To take a topical example, the EU laws around medicines licensing have typically taken around two years from proposal to adoption and been changed substantially in the process, such as the European Parliament’s refusal a few years ago to allow direct-to-consumer advertising of prescription drugs. The process of legislation within the UK parliament is typically shorter, but is still normally at least a matter of months. In contrast, laws made by ministers under the EU future relationship act through secondary legislation would take approximately 40 days, and sometimes less. So if a UK minister were to decide to make laws changing advertising of medicines, there would be a radically reduced time for those laws to be scrutinised. In short, these rules reduce the scope for due democratic process.
That matters especially for the left, because if we want to be acting for the many and not the few, then we need the voices of the many to be heard and to count. This concentration of power in the executive is instead a recipe for more of the cronyism that we have seen from the Conservative government throughout the Covid-19 pandemic.
Defending fair and open processes of law–making was not high on the priority list for MPs who rushed the Brexit Bill through just before New Year. Ironically, it was in the unelected House of Lords where concerns about this lack of scrutiny were raised, and the Lords’ constitution committee seems likely to be the only immediate group pursuing these concerns within parliament.
This Act has taken a myth of unaccountable law–making and turned it into reality. It is vital to overturn this newly created democratic deficit as part of a wider reform to turn the rhetoric of restored democracy into reality.