BOris Johnson’s tenure has been characterized by repeated abuses of power and attempts to crush the opposition – from proroguing parliament to cracking down on the right to protest. But even though he is about to leave and the Conservative Party is struggling with his leadership race, his plans to erode our democracy continue under the radar.
The starkest example is the Northern Ireland Protocol Bill, proposed by leadership candidate Liz Truss, which is still under consideration in Parliament and currently at the committee stage. Much of the attention, and condemnation, has rightly been on how he could breach international law by invoking Article 16 of the protocol. But, much less widely reported, there are sinister clauses in this bill that once again amount to a blatant national power grab.
The effect of the bill would be to give Parliament the ability to bind the courts and give greater powers to ministers. This bill accelerates the growing dominance of government over all other branches of the state – including the courts and parliament.
Section 22, in particular, will make every rule-making power in the Bill a “Henry VIII” power, meaning ministers can make any provision that could be made by an Act of Parliament, without Parliament.
The fundamental doctrine of the separation of powers – which requires that the main institutions of the state, the executive, the legislature and the judiciary be clearly divided in order to safeguard the freedoms of citizens and guard against tyranny – is being systematically destroyed. by this government. As the political thinker Montesquieu said in 1748: “When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no freedom…there is no freedom if the power to judge is not separated of the legislature and the executive…there would be an end to all, if the same man or the same body…were to exercise these three powers.
Contrary to the accusation that government lawyers are incompetent, what is quite remarkable is how the drafting of the protocol bill pushes what many lawyers and constitutional experts have known for a long time but have never seen a government dare to do.
It’s another nail in the coffin of our government’s naïve “good guy” model that few expected to be tested as it has in recent years. It is, however, a thin, skeletal bill, containing few details, and as the Lord Judge so aptly put it: “As to the skeletal bills, I find it absolutely extraordinary that we pass them never. We say to ourselves: ‘Let’s give powers to the minister before he has the slightest idea how he is going to exercise them.’ there is little the courts can do about it – meaning a successful legal challenge to the Protocol Bill, or the act that follows it, is highly unlikely in UK courts.
But the bill goes further. It gives ministers extremely broad powers. For example, they will be able to propose new regulations on the movement of goods between Great Britain and Northern Ireland, and the Treasury will be granted powers to regulate customs matters. Sneaky new powers of Henry VIII will be introduced, allowing ministers to change primary legislation without forcing parliament to vote for it.
Clause 19 of the bill will empower a minister to take such action as he deems appropriate to implement any post-protocol agreement reached with the EU – ending parliamentary scrutiny of international treaties.
Thus continues the road to what Lord Hailsham once called an elective dictatorship. An ideological plan by government ministers to manipulate a sleeping parliament to give them ever more power. Create fake media wars to distract as they speed up laws that weaken our democracy. Brexit was supposed to protect our parliamentary sovereignty: but this government of Brexiters is eroding our sovereignty, our constitution and our ability to hold government to account.
But I have another concern; could this bill mean the government can bring back a no-deal Brexit through the back door? If the Northern Ireland Protocol negotiations fail, could ministers fundamentally change the infrastructure of the EU Withdrawal Agreement, without parliament? The political and economic uncertainty facing Northern Ireland and post-Brexit Britain is only exacerbated by this bill. The man who created this scenario may be on the verge of passing, but we can’t afford to let our guard down: otherwise, his poisonous legacy could last for years.
Gina Miller is a transparency campaigner and leader of the True and Fair party
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