Thread by @HansardSociety

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/ hansardsociety.org.uk/publications/r…

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/ publications.parliament.uk/pa/ld5802/ldse…

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 hansardsociety.org.uk/projects/deleg…

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: bit.ly/HS_NL