Boris Johnson’s term in office has been notable for repeated abuses of power and attempts to quash opposition – from proroguing parliament to clamping down on the right to demonstrate. But even though he is on his way out and the Conservative party is gripped by its leadership contest, his plans to erode our democracy are continuing below the radar.
The starkest example is the Northern Ireland protocol bill, proposed by the leadership hopeful Liz Truss, that is still making its way through parliament and currently in the committee stage. Much of the attention, and the condemnation, has rightly been on how it could break international law by invoking article 16 of the protocol. But, far less widely reported, there are sinister clauses in this bill that again amount to blatant power-grabbing domestically.
The bill would have the effect of giving parliament the ability to constrain the courts, and hand increasing powers to ministers. This bill accelerates the increasing dominance of the government over all other branches of the state – notably the courts and parliament.
Clause 22 in particular will convert every regulation-making power in the bill into a “Henry VIII” power, meaning that 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 principal institutions of state, the executive, legislature and judiciary should be clearly divided in order to safeguard citizens’ liberties 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 liberty … there is no liberty if the power of judging is not separated from the legislative and executive … there would be an end to everything, if the same man or the same body … were to exercise those three powers.”
Contrary to the charge that government lawyers are incompetent, what is quite remarkable is how the drafting of the protocol bill pushes what many constitutional lawyers and experts have long known but have never seen a government dare to do.
It’s another nail in the coffin of the naive “good chap” model of our government that few expected to be tested as it has over the past few years. It is, however, a thin, skeleton bill, containing few details, and as Lord Judge famously said: “As for skeleton bills, I find it absolutely extraordinary that we ever pass them. We say to ourselves, ‘Let us give the minister powers before the minister has the slightest idea how he or she is going to exercise them.’” The bill also includes clauses that mean parliament can legislate freely to constrain the courts, and there is very little the courts can do about it – meaning that a successful legal challenge to the protocol bill, or the act that follows, is very unlikely in the UK courts.
But the bill goes further. It gives ministers eye-wateringly broad powers. For example, they will be able to come up with new regulations on the movement of goods between Great Britain and Northern Ireland, and the Treasury will be granted powers to regulate customs issues. Sneaky new Henry VIII powers will be introduced, which will enable ministers to alter primary legislation without requiring parliament to vote in favour.
Clause 19 of the bill will empower a minister to take measures he or she considers appropriate in order to implement any post-protocol agreement reached with the EU – ending parliamentary scrutiny of international treaties.
So continues the route to what Lord Hailsham once called an elective dictatorship. An ideological plan by government ministers to manipulate a supine parliament into giving them ever more powers. Creating phoney wars in the media to distract attention while they fast-track laws that diminish our democracy. Brexit was supposed to be about protecting our parliamentary sovereignty: but this government of Brexiteers are eroding our sovereignty, our constitution and our ability to hold the government to account.
But I have another worry; could this bill mean the government can bring back a no-deal Brexit by the back door? If negotiations over the Northern Ireland protocol break down, could ministers fundamentally alter the infrastructure of the EU withdrawal agreement, without parliament? The political and economic uncertainty faced by Northern Ireland and post-Brexit Britain are only exacerbated by this bill. The man who created this scenario may be on his way out, but we cannot afford to drop our guard: otherwise his poisonous legacy may endure for years.
Gina Miller is a transparency campaigner and leader of the True and Fair party
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