The most famous rallying cry by the Brexit campaigners was ” Take Back Control”. The people who supported this saw it as simply meaning taking away powers from the unelected European Commissioners in Brussels and giving it back to the British people. It meant the sovereignty of the British Parliament to make laws solely for the British people.
The House of Lords Constitution Committee – not a well known body – has done a forensic job examining every bit of legislation passed and going through Parliament to change the law after Brexit becomes a reality on January 1 next year.
These are not just the better known laws like the European Union (Withdrawal Agreement) Act 2020 but new Acts of Parliament covering covering agriculture, money laundering, immigration, trade, taxation,reciprocal health agreements and even the granting of road haulage licences.
What this comprehensive analysis reveals is that far from Parliament getting new freedoms to introduce new laws for the British people the powers are being transferred from the European Commission to government ministers and indirectly to government advisers like Dominic Cummings.
What is happening is that the perceived rule from Brussels by Brexiteers is being replaced by a real rule by decree by Boris Johnson and Michael Gove.
Henry VIII powers
How you might ask? The answer is the widespread use of what are known as ” Henry VIII ” powers – or more arcanely known as statutory instruments. These are orders allowing ministers to change the law by decree – either putting down an order which Parliament has 90 minutes to debate or a negative order that if MPs don’t spot it is already law unless Parliament can overturn it.
Now what the peers have discovered is that all these bills are littered with these powers – 40 in the agriculture bill alone – giving huge discretion to introduce not only rule by decree but powers to introduce new criminal offences with unlimited fines.
One extraordinary power governing export and import duties give ministers huge powers – including one to change the law by “ public notice” avoiding informing Parliament at all. This brings us back to Tudor times when all Henry VIII had to do was to pin up a notice ordering the dissolution of the monasteries..
Now why does this matter? Take the agriculture bill which will govern the rules if, as the US wants in trade negotiations, for us to import chlorinated chicken and according to recent reports to change food labeling laws in the UK. Now this bill in its initial form gave ministers a Henry VIII power to change the law for the marketing of food including what is on the label.
So if Waitrose followed what it said it will do and clearly label chlorinated chicken a government minister could just change the law by decree making it illegal to do so. And if Waitrose disobeyed they could face unlimited fines.
Now the bill has been modified a bit but MPs and peers ought to be careful that powers don’t sneak in by the back door.
150 new ministerial powers running to 174 pages
Another more obscure Act according to peers also gives huge powers to ministers.
The report said: “The Taxation (Cross-border Trade) Bill involves a massive transfer of power from the House of Commons to Ministers of the Crown. Ministers are given well over 150 separate powers to make tax law for individuals and businesses. These laws made by Ministers will run to thousands of pages. The Treasury’s delegated powers memorandum, which sets out in detail all these law-making powers, alone runs to 174 pages.”
And ministers are also taking powers in some circumstances to override laws passed by the Scottish Parliament by government decree and to interfere in which already adopted EU case law can be decided by tribunals and lower courts.
Courts facing ministerial directions
The peers were incandescent about the latter.Their report said:
“The granting of broad ministerial powers in the European Union (Withdrawal Agreement) Act 2020 to determine which courts may depart from CJEU (Court of Justice of the European Union) case law and to give interpretive direction in relation to the meaning of retained EU law was – and remains – inappropriate.
“Each of these powers should remain the preserve of primary legislation. There is a significant risk that the use of this ministerial power could undermine legal certainty and exacerbate the existing difficulties for the courts when dealing with retained EU law.”
Now in my opinion because of the Covid-19 crisis the government is using this to introduce major changes to our unwritten constitution to bypass Parliament. I don’t blame my lobby colleagues for missing this – the 24/7 news agenda hardly gives them time to study a detailed House of Lords report.
It could be that a post Brexit Parliament may not need to sit as often as now – but just meet occasionally to scrutinise the latest ministerial decree.
I don’t think this is what the average Brexiteer will have envisaged. I don’t think the majority of people in this country want to live in a society where ministers and Downing Street have overweening powers to create new criminal offences by decree without being properly scrutinised by Parliament. We are losing our safeguards by stealth.