Thread by @GeorgePeretzQC

A quick note on Ministers’ legal powers here.

https://twitter.com/mij_europe/status/1457454902653988865

Section 8C of the EU Withdrawal Act 2018 gives Ministers huge powers to legislate “for the purposes of dealing with matters arising out of, or related to, the Protocol (including matters arising by virtue of section 7A and the Protocol)”.

These are Henry VIII powers: they allow Ministers to rewrite any part of the statute book. Including the Withdrawal Act itself. See (2).

(Note for Irish readers. The Irish Constitution would sensibly prohibit the Oireachtas - Ireland’s parliament - from surrendering such huge law-making powers to the executive.)

What’s Parliament’s (limited) role? See paragraph 8F of Sched.7. If primary legislation is altered or a (further) power to make law is taken, each House of Parliament must pass a resolution approving it. Otherwise the measure will become law if neither House actively opposes it.

However, see section 7A. That provides that all rights and obligations (etc) created or arising under the Withdrawal Agreement (including the Protocol) are to be part of UK law - and all legislation is is to be read subject to that provision.

Article 16 is part of the Protocol. So any section 8C regulation is OK and consistent with section 7A if it is a lawful use of Article 16.

But what if the government exceeds what it can lawfully do under Article 16? Article 16 has limits. See

https://twitter.com/GeorgePeretzQC/status/1453694469065347072

And

https://twitter.com/georgeperetzqc/status/1448770704699269123

In such a case s7A kicks in: to the extent that the regulation under s8C goes beyond what A16 permits, it is invalid. A court would have to quash it/declare it invalid accordingly.

Could a Minister use a section 8C regulation to amend section 7A itself? (Remember the wide power granted to rewrite Acts of Parliament.)

Almost certainly not. Section 7A almost certainly has “constitutional” status which protects it against anything other than express repeal by an Act of Parliament. (Also, the Lords would have to approve any such s8C regulation: good luck with that.)

So, if the current government proposes to go beyond what Art 16 permits, it has to get an Act of Parliament (and get it through the Lords, or around the Lords by using the Parliament Act - which means waiting till the next session).

Even given the extraordinarily wide powers it has taken for itself, it can’t use those powers to evade that basic issue.

Important point by Alexander Horne.

https://twitter.com/AlexanderHorne1/status/1457626664205275140