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Analysis

A power grab worthy of Henry VIII

by Nick Kent | 26.10.2019

Boris Johnson may not have reached Henry VIII’s record of six wives but his Brexit Bill shows he is just as keen on keeping power to himself.

A turgid 102-page document published alongside the Withdrawal Agreement Bill reveals the Prime Minister’s plan to take 19 so-called Henry VIII powers. These would give him the ability to change laws post Brexit without passing new ones. These powers are named after Henry VIII because he was the first person to use them.

This massive attempted power grab has so far passed under the radar. No wonder Johnson has been so desperate to avoid scrutiny of his deal. But that’s also why MPs mustn’t let him off the hook.

Figuring out exactly what he is trying to do involves criss-crossing backwards and forwards between the 102-page “Memorandum concerning the Delegated Powers” and the equally turgid 115-page Withdrawal Agreement Bill (WAB). Here are our conclusions.

Power without accountability

A Henry VIII power enables a minister to amend an Act of Parliament without needing another Act of Parliament. Normally this is done by issuing regulations. This is controversial as it reduces the government’s accountability to Parliament.

It’s true that MPs can have a say over these regulations. But while they can amend an Act, they can’t do that to a regulation. 

What’s more, whether they are even offered a vote depends on whether the regulation is issued under the “negative” or “affirmative” procedure. If the negative procedure is used, MPs only get a vote if they demand one – and they often have very little time to do so. (If you have a wet flannel, put it over your head and read section D of the Memorandum, pages 10-19, to figure out which procedure is used with which power.)

Sheer breadth of the powers

The breadth of the powers is enormous. 

For example, the whole Northern Ireland protocol is effectively to be laid out in regulations made by ministers. Clause 21 (1) of the WAB starts as follows: “A Minister of the Crown may by regulations make such provision as the Minister considers appropriate to implement the Protocol on Ireland/Northern Ireland in the withdrawal agreement”. 

It goes on to say that the regulations “may make any provision that could be made by an Act of Parliament (including modifying this Act).” (Clause 21 (2)). This power to change not just earlier legislation but the WAB itself is especially controversial. No wonder the DUP is furious.

Meanwhile, the entire scheme for appeals by EU citizens over their rights will be also made through regulations that MPs won’t be able to amend (Clause 11 (1)). Ministers can also determine the rules for judicial review for one key aspect of these regulations (refusal of entry) – essentially giving them the power to set the marking scheme for their own homework (Clause 11 (3)). They can even abolish the Independent Monitoring Authority, the new body charged with protecting EU citizens’ rights (Schedule 2, paragraph 38 (1)).

Then there’s a catch-all power to make regulations “as the Minister considers appropriate in consequence of this Act” (Clause 39 (1)). While it is common to give ministers power to make minor amendments to other laws to ensure consistency and accuracy, the broad scope of this provision is worrying. 

(A full list of the powers is contained at the end of this article).

Are these powers needed?

The typical phrasing used for the WAB’s Henry VIII powers is that a minister may make regulations that he or she “considers appropriate”. This is a much weaker test than saying they can only make them if they consider them “necessary”.

Parliament’s committee on regulation took issue with Theresa May’s Brexit legislation, which also gave ministers especially wide Henry VIII powers (See paragraph 4 of their report). Despite that, the government is ploughing ahead with the same broad approach that gives ministers huge discretion.

Inconsistencies?

The legislation says that the power to make regulations “in consequence” of the WAB itself “does not include primary legislation passed or made after IP completion day” (Clause 39 (3)). “IP completion day” is the end of the transition period currently set at December 31, 2020, although it can be extended by up to two years.

By contrast, when explaining this power to make regulations in consequence of the WAB, the memorandum says it “does not include primary legislation passed or made after the end of the parliamentary session in which this Bill becomes an Act.” (Paragraph 328). This is different from IP completion day – with the result that anybody reading the memorandum for guidance would be misled.

We’ve discovered only one inconsistency. But Johnson’s deal and the legislation to support it has been rushed, so it wouldn’t be surprising if there are others. All the more reason to take time to scrutinise it properly.

A matter of trust

The wide scope of these powers matters because trust in the government is rock bottom. The Prime Minister can’t stop saying things that are untrue. How do we know that these powers will be used wisely when Johnson is using virtually every trick in the political book?

An accompanying piece explains how Johnson’s claim that we are taking back control isn’t quite correct.

—————

WAB’s 19 Henry VIII powers  

  1. Clause 3: supplementary power in connection with the Withdrawal Agreement
  2. Clause 4: powers corresponding to clause 3 involving devolved authorities
  3. Clause 7(1)(a) to (g): powers to make regulations providing for the deadline for applications and temporary protections in respect of the EU Settlement Scheme
  4. Clause 8(1) and (2): powers to make provision in regulations in respect of frontier workers
  5. Clause 9(1): power to provide for restrictions of rights of entry and residence
  6. Clause 11: power to make provision for appeals against citizens’ rights immigration decisions
  7. Clause 12(1): recognition of professional qualifications
  8. Clause 13(1): coordination of social security systems
  9. Clause 14: non-discrimination, equal treatment and rights of workers
  10. Clause 18: main power in connection with Other Separation Issues
  11.  Clause 19: corresponding power for devolved authorities in connection with Other Separation Issues
  12. Clause 21: main power in connection with Ireland/Northern Ireland Protocol
  13. Clause 22: powers corresponding to section 21 involving devolved authorities
  14. Clause 27: deficiencies in retained EU law: amendments to the existing correcting powers in the EU (Withdrawal) Act 2018
  15. Clause 37(4): power to amend ‘IP completion day’
  16. Clause 39(1) and (5): powers to make consequential provision and transitional, transitory and savings provision
  17. Schedule 2, paragraph 38(1) of Part 3,: power to limit the functions of, or abolish, the Independent Monitoring Authority for the Citizens’ Rights Agreements (IMA)
  18. Schedule 4, paragraph 4(2) of: power to amend table referred to in the definition of ‘workers’ retained EU rights’
  19. Schedule 6, paragraphs 5 and 69: operation of the powers to make consequential provision and transitional, transitory and savings provision in the EU (Withdrawal) Act 2018. 

Edited by Hugo Dixon

Tags: Categories: Brexit, UK Politics

4 Responses to “A power grab worthy of Henry VIII”

  • Ultimately, BJ couldn’t give a toss whether Brexit happens or not. There’s only one thing that interests him and that’s staying in No10. If someone suggested he cancel Article 50 with adequate bullshit to put off the brexiteers, and told him he’s be worshiped by all remainers, he’d probably do it.

  • For Henry Vlll powers, read dictatorship.
    But John Morrison is right, Macron had the right idea. Make Johnson chief strategist for Europe and commission him to design a bridge over the channel, and he’d be our man.