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Circumventing Parliament?

Parliament may have been dissolved because of the General Election but Boris Johnson is still the Prime Minister (at least until he is either confirmed as remaining so or succeeded by an alternative leader of a party that wins on December 12).

Thus far, and much as predicted by some commentators, he has proved to be somewhat controversial; his attempt at proroguing parliament was ultimately defeated so is he attempting to get round scrutiny in other areas?

John Westbury looks at one suggestion that he is.

Image: Steve Nimmons

Boris Johnson’s plan to avoid public scrutiny of his EU withdrawal bill has been torpedoed by peers in a forensic report revealing a new power grab by ministers looking to change fundamental laws without proper debate in Parliament.

Peers on the House of Lords Constitution Committee rushed out an interim report on the last day of Parliament to provide the only clause-by-clause scrutiny of the legislation – after the Prime Minister chose to dissolve Parliament to have a General Election, rather than face proper scrutiny of the measure in the Commons.

The report draws attention to the ramping up of the so-called "Henry VIII powers" under the Northern Ireland protocol to allow ministers to change or repeal laws without parliamentary legislation.

It also points out that there is no provision in the law for any consultation procedures with the Scottish Parliament, the Welsh Assembly or the Northern Ireland Assembly during negotiations with the EU for a new trade deal. Each body will simply be informed about the progress of the negotiations.

The report also confirms Labour’s fears that workers’ rights are not well protected as human rights are, in the withdrawal bill. It questions whether the Good Friday Agreement will be properly respected under the new plan to move the trade border to between Great Britain and Northern Ireland.

It highlights new rules allowing ministers to alter criminal sentences and change charges by any public body without a debate in Parliament – unless MPs and peers spot the change and demand a debate. It also states that the arrangements for the new trade border in the Irish sea are only skeletal and need fleshing out before the bill becomes law.

The new power grab by ministers seems to be centred mainly on Northern Ireland. While in Great Britain there are restrictions on what can be amended using Henry VIII powers, this does not apply to Northern Ireland under a new protocol. The report states “There's no restriction on … powers being used to impose or increase taxation or fees, make retrospective provision, create a relevant criminal offence (i.e. with a penalty exceeding two years imprisonment), establish a public authority, amend, repeal or revoke the Human Rights Act 1998 or any subordinate legislation made under it, or amend or repeal the Scotland Act 1998, the Government of Wales Act 2006 or the Northern Ireland Act 1998.” The peers add “It would require the strongest of justifications for ministers to be given such a broad power by regulations to alter (as they think ‘appropriate’) any existing law - including the Act providing the power! - on the basis of the terms of this withdrawal agreement.” On worker’s rights, it draws a distinction between the protection of human rights – which can be backed up by the courts – and workers’ rights. “The scheme in this bill is also different to that in the Human Rights Act 1998 in the context of the UK’s continuing obligations under the ECHR and accountability to UK courts and the European Court of Human Rights for departures from such obligations.” the report states. “Under this bill, by contrast, there is at present, no planned international treaty arrangement protecting workers’ rights in the UK after the implementation period completion date.” On Northern Ireland, it takes up the issue raised by the DUP that the arrangements for Northern Ireland to continue in both the EU single market whilst belonging to the UK customs area, long after Great Britain has left the EU, would be subject to the consent of the people.

Baroness Taylor of Bolton, Chair of the Committee said: “We decided to get this analysis out without further comment before Parliament rose.”

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