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Under cover of Christmas, with less than a day for scrutiny, and with No Deal as the only alternative, Parliament passed the European Union (Future Relationship) Act 2020. The process was described by the venerable Hansard Society as “an abdication of Parliament’s constitutional responsibilities to deliver proper scrutiny of the executive and the law” and a “farce”.
Worse even than the absence of scrutiny – of legislation published less than a day before Parliament voted on it – is what that legislation does. It gives incredibly broad powers to Ministers to make laws and override Acts of Parliament. It has been described by the doyen of academic public lawyers, Professor Mark Elliott, as “the hoarding of power by the Government at the expense of respect for any part of the constitution that threatens its hegemony.”
Section 31 of the Act gives a Minister power to “make such provision as [he] considers appropriate to implement… or otherwise for the purposes of dealing with matters arising out of, or related to, the Trade and Cooperation Agreement.” These are incredibly broad powers – given to a Minister not Parliament – to reshape every aspect of national life the EU previously touched on.
And it is all but certain that Government will misuse these powers.
In December, Government relied on other Henry VIII powers to abolish the operation of the state aid regime that existed before Brexit. That regime limited its ability to give financial assistance to companies. It prevented distortion of competition and at a more basic level ensured Government could not favour particular industries or individual companies over their rivals. You may well think we needed those rules. But what we are left with is no substantive state aid regime in the UK, with only loose guidance in place to govern how public authorities should act from 1 January onwards.
The Government took this step purportedly in pursuance of a power in the EU Withdrawal Act 2018 to “prevent, remedy or mitigate” a “deficiency” arising from our departure from the EU. However, Government would have known it was on dodgy footing – the House of Lords committee tasked with scrutinising the use of these powers termed it “neither a welcome nor acceptable use of secondary legislation”. And we don’t think its actions were lawful.
Shortly before Christmas we instructed Hausfeld LLP and leading Counsel Tim Buley QC and Yaaser Vanderman to take the first formal step in litigation, challenging the abuse of Henry VIII powers.
Under cover of Christmas, with less than a day for scrutiny, and with No Deal as the only alternative, Parliament surrendered vast amounts of sovereignty to a dishonest Government. We intend to guard what is left.
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