So, we’ve had an initial look at the delegated powers in the #NorthernIrelandProtocol Bill. In short, they are quite breathtaking. 🧵 #NIProtocol #NIP 1/
We make no comment on the Bill's legal/policy justifications - others are better-placed to do so. But on the scope of the powers & the scrutiny implications for Parliament, the provisions are on a par with - & arguably surpass - the broadest powers we saw in the Brexit bills. 2/
First, every regulation-making power in the Bill is essentially converted into a 'Henry VIII' power by clause 22, which says regulations made under this Act may make any provision that could be made by an Act of Parliament, including provisions modifying this Bill/Act. 3/
Second, of the Bill's 26 clauses, 10 provide for Ministers to ‘by regulations, make any provision which the Minister *considers appropriate in connection with*’ the Protocol, or other parts of the Withdrawal Agreement, or the NIP Bill itself. 4/
The undefined concepts of ‘appropriateness’ & ‘in connection with’, as thresholds for Ministers to meet, are regularly complained about by the @UKHouseofLords Delegated Powers Committee (see p18 of our recent Compendium on Legislative Standards). 5/…
We are reasonably confident that many Peers will want to replace these terms with, for example, tighter wording such as 'necessary' instead of 'appropriate', to limit ministerial discretion. 6/
Third, inasmuch as the #NIP Bill powers could be compared with equivalent powers in other Acts (eg EU Withdrawal Act 2018), there they have been accompanied by parliamentary scrutiny safeguards such as ‘sifting’ by parly c'tees. There are no equivalent safeguards in this Bill. 7/
Moreover, regulations made under the #NIP Bill are subject to the negative scrutiny procedure – that is, they do not require active parliamentary approval to become or remain law – unless they amend Acts of Parliament or make retrospective provision. 8/
Even those NIP Bill powers that are subject to the affirmative scrutiny procedure can be used to make law that needs only retrospective parly approval if the Minister declares it ‘urgent’ (as happened with Ministers' use of powers in the 1984 Public Health Act during #Covid). 9/
On a first look, particular stand-out clauses of concern in the #NIP Bill include Clause 18, where the Minister may ‘engage in conduct in relation to any matter’ dealt with in the Protocol ‘if they consider it appropriate in connection with one or more purposes of the Act’. 10/
The Bill's Explanatory Notes indicate ‘conduct’ means ‘sub-legislative activity’ such as issuing guidance. But what else might it cover? The growth of such activity is another concern in @UKHouseofLords - see the recent 'Democracy Denied' report. 11/…
Clause 19 enables Ministers to use regulations to implement any future agreement between the UK & the EU that ‘modifies, supplements or replaces the whole or any part’ of the Protocol. 12/
So, if the actual Protocol were to be amended or replaced, the new UK-EU agreement could be implemented in the UK not by an Act of Parliament but by regulations - which would mean limited parliamentary scrutiny of the implementing legislation. 13/
We'll be producing a detailed briefing on the powers in the Bill, as we've done for previous Bills as part of our ongoing Delegated Legislation Review. Watch this space! /End #DLR #delegatedpowers…
If you'd like to hear about about our briefing on the #delegatedpowers in the #NIProtocol Bill (as mentioned in this thread) as soon as it's published, sign up for our newsletter:

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More from @HansardSociety

Feb 1
🧵Gov's plans, subject to consultation, to end #vaccination as condition of deployment in #health & #socialcare will involve revoking 2 #StatutoryInstruments (SIs) that highlighted shortcomings in #scrutiny & gov provision of evidence for its decisions. /1…
The 1st SI - Health and Social Care Act 2008 (Regulated Activities) (Amendment) (Coronavirus) Regs 2021 – made Covid vaccination in effect mandatory for all those undertaking work activities in regulated care homes & has been in force since 11 Nov 2021. /2…
This SI was subject to damning Secondary Legislation Scrutiny Committee (SLSC) report for poor supporting docs & missing Impact Assessment. MPs like @Mark_J_Harper called asking MPs to OK it w/o such info an "abuse of the House" & in only 90-min SI debate "frankly offensive". /3
Read 10 tweets
Jan 6
⬇️ 1/There’s an important debate led by @CamCavendish in @UKHouseofLords later today (6/1/22) about the increasing numbers of ‘skeleton’ Bills & the associated use of delegated powers within them. The anodyne title of the debate belies the constitutional importance of the issue.
2/ The debate follows two recent hard-hitting @UKGHouseofLords Committee reports: ‘Democracy Denied? The urgent need to rebalance power between Parliament and the Executive’ and ‘Government by Diktat: A call to return power to Parliament’.
3/ We highlighted some of the key issues in the reports shortly after they were published in this thread:
Read 9 tweets
Jan 5
🧵 Today (05/01) the #HouseofLords has 2nd Reading of the #NationalityandBordersBill. Read our briefing on 5 clauses whose #delegatedpowers raise particular concerns /1…
Although the Bill has been significantly updated since our briefing was published, the points we raised are still of relevance (NB the clause numbering has changed) /2
In this, as in most Bills, delegated powers raise important questions of constitutional, legal, and procedural principle that matter, regardless of views on policy merits of the Bill /3
Read 4 tweets
Apr 21, 2021
🧵1/A year ago today the @HouseofCommons that returned from the Easter recess was transformed by #Covid. Since then parliamentary accountability for & control over govt decision-making has diminished to a degree that would have been unthinkable prior to the pandemic.
2/ In a new briefing by our Director @RuthFox01, Prof Meg Russell, Director @ConUnit_UCL, @JoePTomlinson @publiclawprojct & Ronan Cormocain @BinghamCentre highlight 5 ways the govt's approach has marginalised MPs & calls for parliamentary accountability urgently to be restored
3/ We highlight the erosion of parliamentary control in relation to (1) emergency legislation, (2) regulations, & (3) money; (4) MPs denied equal participation rights in some @HouseofCommons business; and (5) wholesale and unnecessary use of proxy votes.…
Read 13 tweets
Aug 19, 2019
The Commencement Order for section 1 of the EU (Withdrawal) Act 2018 has just been published. The Order brings into force the provision of the Act which repeals the European Communities Act 1972 on 'exit day':
The Minister made (signed) the Order on Fri (16th) & it came into force on Sat (17th). The Order only brings into force s.1 of EU(W)A 2018. Three previous Commencement Orders have already brought other parts of EU(W)A 2018 into force (= why this Order is 'Commencement No. 4'). 2/
The fact that s.1 of EU(W)A 2018 is now in force does *not* mean that the repeal of the European Communities Act 1972 has now happened. S.1 of EU(W)A 2018 says that the ECA is repealed on 'exit day'. 'Exit day' is still defined in a separate Statutory Instrument as 31 Oct. 3/
Read 6 tweets

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