David Hencke reports on new analysis from the House of Lords that reveals an extensive power grab by the Prime Minister and his Government

Share this article

Ministers are using Brexit to give themselves sweeping powers to bypass the need for future parliamentary legislation to create new criminal offences and limit the powers of the courts, a new report by peers has revealed.

An analysis of current Brexit legislation passing through Parliament by the House of Lords Constitution Committee reveals it is peppered with Henry VIII clauses – handing ministers significant latitude to change the law without having to spend time passing fresh legislation.

Since Boris Johnson achieved his 80-seat majority in the Commons in the December General Election, the Government has been pushing through these new powers without seeking any compromises.

The report warned: “The creation of criminal offences and the establishment and empowerment of public bodies by delegated powers is in general constitutionally unacceptable. Nor should delegated powers be used to change in any significant way the category of a criminal offence or to increase the level of punishment applicable to any criminal offence beyond a maximum penalty, which should always be stated on the face of any bill.”

Peers are most angered by Henry VIII clauses which overturn some 50 years of European Union case law that have long been part of the English and Scottish law system.

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.”

The report reveals that peers tried to obtain a compromise over the wording but this was blocked by the Government, which is refusing to provide details of how the new ministerial powers will work.

The report also analyses a raft of legislation, including new bills and acts covering agriculture, money laundering, immigration, trade, road haulier licences, taxation and reciprocal health agreements.

The first agriculture bill – highly controversial because of the possibility of chlorinated chicken coming to the UK under a US-UK trade deal – gave ministers wide-ranging powers including covering the marketing and labelling of food sold in supermarkets and the right to imprison and impose unlimited fines on people who broke the laws.

The revised bill – now going through the Commons – removed the power for ministers to create new imprisonable offences but kept unlimited fines – and includes more than 40 Henry VIII powers, including one going beyond current EU rules to classify new products as agricultural.

Peers described the new law to give hauliers driving permits as “more of a mission statement” and “skeletal” because there was no explanation of exactly how the new powers for ministers would work making it impossible to scrutinise. The Government has since accepted amendments giving sunset clauses to these powers.

The new law governing import and export duties give ministers huge powers – including one to change the law by “ public notice” avoiding informing Parliament at all.

The committee scrutinising the bill, now law, said: “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.”

Similarly, the new Act governing sanctions and anti money laundering – which until now were part of EU law – also gives ministers wide discretion on who should be classified as a terrorist and what the sanctions should be.

The peers said: “We expressed concerns about a separate power in that Bill that could be used to create an offence for which a sentence of imprisonment for up to 10 years could be imposed, as well as setting rules on the evidence to demonstrate that the case is proved and defences to such charges. While the House of Lords agreed amendments to constrain these broad provisions, they were subsequently reinstated by the House of Commons.”


Byline Times is funded by its subscribers. Receive our monthly print edition and help to support fearless, independent journalism.

New to Byline Times? Find out more about us


A new type of newspaper – independent, fearless, outside the system. Fund a better media.

Don’t miss a story! Sign up to our newsletter (and get a free edition posted to you)

Our leading investigations include: empire & the culture warBrexit, crony contractsRussian interferencethe Coronavirus pandemicdemocracy in danger, and the crisis in British journalism. We also introduce new voices of colour in Our Lives Matter.

More stories filed under Democracy in Danger

EXCLUSIVE The Steele Dossier, the Indicted FBI Officer and the ‘Most Consequential Investigations in US History’ 

, 26 January 2023
Christopher Steele is concerned his dossier on Donald Trump’s Russian connections was held up at the FBI Office whose head of Counter Intelligence has been indicted for working with one of Putin’s most powerful oligarchs  

Rishi Sunak’s Government is Sinking Into its Own Swamp 

, 26 January 2023
The Prime Minister promised a break from the chaos and corruption of Boris Johnson's administration. After three months, his MPs fear little has changed

EXCLUSIVE Labour MPs Quit Parliamentary Lobbying Group Set Up to Slash Tax on Petrol as Ties to Big Polluters Emerge

, 24 January 2023
One Labour MP quit after a report by the APPG criticising the move to electric vehicles was backed by the Global Warming Policy Foundation – often described as the most high-profile climate 'sceptic' body in the UK

More stories filed under Fact

Hundreds of ‘Toxic’ North Sea Oil Spills Since 2019

, 31 January 2023
Sam Bright reports on the scale of pollution being pumped into the North Sea

Majority of Brits Report Winter Crisis is Impacting Health and Wellbeing 

, 31 January 2023
New ONS data reveals how cold homes and food insecurity is impacting people's physical and emotional health

For Thousands of Young Children, Poverty is All they have Known

, 27 January 2023
New data from the Joseph Rowntree Foundation reveals the extent of poverty in families

More from the Byline Family