Friday, 26 June 2020

Game of chicken

ON the face of it, an announcement this week by the new boss of supermarket chain Waitrose that his stores will never sell chlorinated chicken is a welcome intervention for the much hailed trade talks between the UK and US in the wake of Brexit.

James Bailey, writing in store's weekend magazine, pointed out that a million people have signed a National Farmers Union (NFU) petition calling for laws to prevent future trade deals leading to food imports that would currently be illegal to produce in the UK.

"We will never sell any Waitrose product that does not meet our own high standards," asserts Bailey. “Any regression from the standards we have pioneered for the last 30 years would be an unacceptable backwards step,” he says.

The British government’s negotiating team as well as Boris Johnson himself have already made promises that a lowering of such standards is not up negotiation. But a track record of capitulations and broken promises does not inspire confidence. Nor do some of the back room manoeuvres currently taking place to change legislation.

Last week in the independent Byline Times newspaper the freelance investigative journalist David Hencke reported on a new analysis from the House of Lords that charts an extensive and worrying power grab by the British prime minister and his government.

The Lighthouse Keeper draws it to the attention of readers because it is important for more people to be aware that the Boris Johnson government is surreptitiously using Brexit legislation and the cover of Covid-19 to hand itself significant new ‘Henry VIII’ powers that will allow it to rule over large parts of this country's affairs by decree.

Or, to put it another way more politically controversial way, the Conservative party, under its right-wing and increasingly authoritarian leadership, is now on course to dismantle Britain’s accountable parliamentary democracy step by sordid step.
To be fair, it was all in the small print of the Conservative Party’s manifesto for the December 2019 election. I referred briefly to the inherent dangers posed by page 48 of the manifesto in my pre-election blog “Johnson’s land of fake believe”. This highlighted extract illustrated below more ably illustrates what I was getting at.

So let’s put it in context. By far the most successful and memorable slogan pummelled into the British sub-conscious by the pro-Brexit campaigners and Vote Leave was, “Taking back control”. Three emotive words that cleverly annexed the EU from whatever good it may have done in the minds of voters but in reality had more sinister undertones.

Those in supporting Brexit viewed the narrative quite simply - taking away powers from the unelected European Commissioners in Brussels and giving them back to the British people. It was all about the sovereignty of the British Parliament to make laws solely for the British people.

Well, as Hencke revels in his article, a report from the House of Lords - so far pretty much ignored by all of the main stream media - suggests we are all about to discover something altogether different has been taking place.

It turns out that the little known House of Lords ‘Constitution Committee’ has done a forensic job examining every bit of legislation passed and going through Parliament to change the law after Brexit became a reality on 1 January 2020.

These are not just better known laws like the European Union (Withdrawal Agreement) Act 2020 but new Acts of Parliament covering agriculture, money laundering, immigration, trade, taxation, reciprocal health agreements and even the granting of road haulage licences.

“What this comprehensive analysis reveals,” writes Hencke, “is that far from Parliament getting new freedoms to introduce new laws for the British people, powers are being transferred from the European Commission to government ministers and indirectly to government advisers like Dominic Cummings.”

What is happening is that perceived rule from Brussels - so widely but incorrectly promulgated by Brexit supporters - is being replaced by Boris Johnson and Michael Gove with a very real ‘rule by decree’.

It’s encapsulated by the phrase “Henry VIII” or, in more arcane phraseology, “statutory instruments”. Essentially, these are orders allowing ministers to change the law by decree - either putting down an order which Parliament has just 90 minutes to debate or a negative order that, if MPs don’t spot it, is already law unless Parliament can retrospectively overturn it.

According to Hencke, what the peers have discovered is that new bills are littered with these draconian powers - more than three dozen in the agriculture bill alone - giving huge discretion to introduce not only rule by decree but the ability to introduce new criminal offences with unlimited fines.

“One extraordinary power, governing export and import duties, bestows on ministers huge powers - including one to change the law by ‘public notice’ avoiding informing Parliament at all. This brings us back to Tudor times when all Henry VIII had to do was to pin up a notice ordering the dissolution of the monasteries” says Hencke.

We are getting into some detail here and once might be inclined to ask, does this really matter? After all, wasn’t Boris Johnson elected on a popular vote as a chum and friend of the ordinary people?

But take the Agriculture Bill as an example. It will govern new rules and regulations if, as the US appears to be demanding in trade negotiations, the country becomes bound to import chlorinated chicken and has to amend its food labelling laws.

The Bill, in its initial form, gave ministers a Henry VIII power to change the law for the marketing of food, including what is displayed on the label on supermarket shelves.

So, if the Waitrose supermarket follows what James Bailey says it will do and refuses to sell imported chlorinated chicken, a government minister could technically change the law by decree making the actions illegal. And if Waitrose disobeyed the order it could face unlimited financial penalties.

“The Bill has since been modified a bit but MPs and peers ought to be careful that powers don’t sneak in by the back door,” advises Hencke.

And there is more. A according to peers, another more obscure Act also gives huge powers to ministers.

Their report stated: “The Taxation (Cross-border Trade) Bill involves a massive transfer of power from the House of Commons to Ministers of the Crown. Ministers are given well over 150 separate powers to make tax law for individuals and businesses. These laws made by Ministers will run to thousands of pages. The Treasury’s delegated powers memorandum, which sets out in detail all these law-making powers, alone runs to 174 pages.”

Hencke says peers were incandescent about ministers being given new powers in some circumstances to override by government decree laws passed by the Scottish Parliament as well as to interfere in already adopted EU case law so that decisions can be taken by tribunals and lower courts.

The report said: “The granting of broad ministerial powers in the European Union (Withdrawal Agreement) Act 2020 to determine which courts may depart from CJEU (Court of Justice of the European Union) case law and to give interpretive direction in relation to the meaning of retained EU law was - and remains - inappropriate.

“Each of these powers should remain the preserve of primary legislation. There is a significant risk that the use of this ministerial power could undermine legal certainty and exacerbate the existing difficulties for the courts when dealing with retained EU law.”

Hencke, like many others, surmises that the government is using the Covid-19 crisis as cover to introduce major changes to Britain’s unwritten constitution in order to bypass Parliament. But he doesn’t blame lobby colleagues for missing this kind of detail. “The 24/7 news agenda hardly gives them time to study a detailed House of Lords report,” he says.

All this could mean, Hencke says, that a truly post-Brexit Parliament headed by Johnson with Cummings pulling the strings, may not need to sit as often as now, just meeting occasionally to scrutinise the latest ministerial decree.

Like many others, Hencke doesn’t believe this is what the average person voting for Brexit envisaged at all. And The Lighthouse Keeper agrees.

“I don’t think the majority of people in this country want to live in a society where ministers and Downing Street have overwhelming powers to create new criminal offences by decree without being properly scrutinised by Parliament,” he concludes.

One may argue that it was clear from the outset of Johnson’s tenure as prime minister that the UK was in grave danger of losing by stealth its democratic safeguards. Were his early attempts to close parliament last October, and so walk away from scrutiny, the infant days of a de facto dictatorship?

To read David Hencke’s original article click here - Byline Times