“If its in the papers . . . “

Cumloden, Loch Trool Boating Party, 1888

The dear old Grauniad publishes from time to time quite interesting sets of photos. Today there is a set “100 Years of Scottish Life in Pictures”. Alas the pictures are so poorly titled as to be interesting visually, but not of much use to link with places. One that is given a place name is shown above and the title below the photo is that given to it in the newspaper article. However, when you come to look for Cumloden on or near Loch Trool, it isn’t there – Cumloden seems to be a house on the Penkiln Burn, just north north east of Minnigaff by Newton Stewart. Not so very far from Loch Trool, but not on it. So one supposes that the picture is of a party FROM Cumloden larking about – dare we say ? – see the man with the bottle – on what looks like Loch Trool – a large sheet of water.

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Some new ideas . . .

The site now has a fixed home page with two links to the actual blog and its posts. It seems a bit strange at present because it is new, but I will leave it for a day or two until the mental dust has settled somewhat.

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Of the making of books . . .

A picture of the front cover of a book entitled "Priests de la Resistance" by the Reverend Fergus Butler-Gallie.

I saw the review of the above book in the “Church Times”, thought it might be good, and ordered it from them online. I avoid Amazon on principle, but since we have no bookshops selling new books anywhere near at hand, on line ordering is about the only option. I do believe that there is a Waterstones in Dumfries, but it is in the pedestrianised High Street and therefore involves (apart from a 50 mile round trip) parking the car somewhere and then walking and is thus ruled out. Such are the penalties of age. I ordered the book sometime in the second half of the day, and to my astonishment, it arrived in the post the very next morning.

Today I got one of these increasingly common, and somewhat annoying, requests (from Feefo) to review the service I had received, and then to review the purchase itself. This is what the Church House Bookshop blurb says . . .

Whoever said that Christians had to be meek and mild hadn’t met Father Kir – parish priest and French resistance hero, immortalised by the Kir Royale. And they probably weren’t thinking of Archbishop Damaskinos who, when threatened with the firing squad by the Nazis, replied, ‘Please respect our traditions – in Greece we hang our Archbishops.’ Wherever fascism has taken root, it has met with resistance. From taking a bullet for a frightened schoolgirl in Alabama to riding on the bonnet of a tank during the liberation of France, each of the hard-drinking, chain-smoking clerics featured in Priests de la Resistance were willing to give their lives for a world they believed in – even as their superiors beckoned them to safety. In this spellbinding new collection, the Reverend Fergus Butler-Gallie, bestselling author of A Field Guide to the English Clergy, presents fifteen men and women who dared to stand up to fascism, proving that some hearts will never be conquered.

In my on line review I wrote . . .

The book is written in a rather down market style – think red top newspapers- but the content is good, upsetting and thought provoking, especially at the present time in the UK when the forces of the seem to be taking over. So, it does not do to read too much of the book at one sitting as it might well leave you a bit depressed – unless of course you are a right wing person,in which case you will be cheering to the echoes.

However, I might have added few extras. The people described in the book are mainly in some sort of regular church based ministry, but not all were, unless you count missionary work as such. At the time of the second world war women were not generally ordained and there are three of them in the book. And although presumably the book’s published title is a play on ‘Canons’ and ‘Cannons’ not all the ordained men were Canons either. The blurbs inside the book, collectively imply that the people described were either of the Church of England (wrong), were clergy (wrong), or Anglican (wrong). These blurbs are allegedly taken from other magazines or newspapers, or are by individuals and they demonstrate that the writers thereof have simply not read the book at all.

So, the content, even if you don’t like the style (which I don’t, much) is good but it is encased in dross, rather like a good fruit suffering from some sort of blight on its outer skin. But in the current political situation in this country it is a timely offering, and deserves (indeed needs !) a wide readership.

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British Industry – a sad story . . .

Saturday, 16th November 2019

We await a delivery. We received an email confirming our order, which also gave details about delivery . . .

There followed further emails . . .

So now we have two deliveries – Saturday before noon, and Friday 15th November between 7 am and 6 pm. Any questions ?

We follow the tracking link. Aha ! It is to be delivered on Friday after all. Faint, but pursuing we click on “Tracking History” . . .

And Lo ! It seems our order got to Leeds on Thursday, 14th November, and is due to be delivered to us “overnight saturday AM”. Should we stay up all night ?

10.05 am, Saturday 16th. Still waiting. Yes, we did go to bed. Perhaps they came in the night, couldn’t wake us up, and went away again ?

And BoJo says we will nip out of the EU any time soon , and that we will negotiate trade arrangements in two or three days, but admits that we are not very good at negotiating parcel deliveries.

     ~ ~ ~ ~ ~

Monday, 18th November 2019

The upshot of the above is that we spent the morning today trying to send messages via the firms online messaging systems. Dunelm aren’t too bad, but the Dx lot only make provision for set subjects and sub-headings none of which fit the problem – a pretty useless arrangement. A great deal of the time online was taken up with attempts to find phone numbers to ring, and then going through the awful business of negotiating the menus, and waiting while endless music played. One thing we have discovered is that with our BT call blocker cordless phones when you are told to “Press One” and do so – nothing happens. This also happens with some firms these days when they ask you to key in your credit card number and it doesn’t get accepted because the first digit press doesn’t do anything. We eventually conquered this by using our steam driven “emergency phone” which plugs straight into the BT socket just like the old days. It took a long time, much patience, and many menu presses and transfers to other operators, but eventually we were told that the articles we have ordered and paid for, have not in fact arrived at the Dx depot even though the tracking system says that they have. So we are promised further updates, but that they may take 72 hours to effect.

I am now very deaf, and so my OH has to do all the phone calling, and she also has to keep asking people to repeat themselves which is very exhausting for her. “Action on hearing Loss” tell us that circa 11 million elderly people suffer from age related hearing loss in the UK – which is about 10% of the total population. And yet many, if not most firms, offer no good way to communicate with them except by the so called “help line” – and you need to be careful what you do because it is all too easy to end up on a number that makes exorbitant call charges. If you come across a firm that does this, and most do, what they are really saying to people with hearing loss is, “tough luck, we aren’t interested in you, so suck it up !”

~ ~ ~ ~ ~

Tuesday, 19th November 2019

Well ! Look at this . . .

It still says “overnight Saturday” but something seems to have got as far as Gretna, which is better than Leeds. So, now we spend another day sitting at home awaiting events.

Heigh Ho . . .

~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~

The end is nigh . . .

The parcels arrived, the delivery man – operating entirely solo I noticed – manhandled them upstairs, with difficulty, and we gave him “something for his trouble”, and off he went to his next job. We removed all the cardboard packing – voluminous – and everything appears to be in order. After the non-delivery saga I was dreading the opening, quite expecting to find that the articles delivered were not the articles ordered, and we might have to start all over again. We got the cardboard loaded into the car, after much cutting down to size with a craft knife, and took it with our already loaded recycling stuff to the depot at Castle Douglas where the helpful and friendly staff gave us a welcome hand in stowing the stuff away in the bins. The bins are enormous. I can reach the filling slots by stretching, but for short people, especially some of the ladies it is impossible.

Here endeth the great delivery saga.

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“Why isn’t he called Murphy like all the rest of them ?”

Via a Facebook post in “Veterans for Europe” I came across this, now dated (18 July 2019), article from the “Irish Times”. What an uncouth ruffian Johnson is. Some folks no doubt like this “teel it as it is” approach, others (like me) are curled up with embarrassment that this hateful oaf is seen to represent us. As in an earlier post today, it reiterates how we UK citizens have to, need to, find out what is going on from sources outside Parliament and Government, and often from out side of the UK altogether. A rum situation !

This is only a part of the article, the full version of which may be found by following the link above . . .

~ ~ ~ ~ ~

Boris Johnson on Varadkar: ‘Why isn’t he called Murphy like all the rest of them’


This is no time for squeamishness. Within a week, Boris Johnson expects to be Britain’s prime minister. He has already set the direction for the nation’s foreign policy. No more Europe.

The new formula is simple: Donald Trump tweets and Mr Johnson jumps. As was obvious during his dismal spell as foreign secretary, Mr Johnson is no grand strategist. He seems to have grasped, though, that once he has torn Britain out of the EU, the goodwill of a capricious US president is just about all there is left. Now we know what the Brexiters meant when they promised the sunlit uplands of “Global Britain”.

Foreign office
First, though, he must wrap up Brexit. Mr Johnson intends an early European tour if, as is likely, he wins the ballot for the Conservative leadership. Paris, Berlin and Dublin are on the list. He may encounter some bumps along the way.

His long record of mendacity and an infantile habit of comparing the EU to Nazi Germany have not created a reservoir of trust among other European leaders. They are unimpressed by his “do-or-die” threat of a no-deal Brexit. Mr Johnson’s crude English exceptionalism is even less endearing.

At the Foreign Office he was heard to muse as to whether Chancellor Angela Merkel had served in East Germany’s Stasi secret police. French president Emmanuel Macron was a “jumped-up Napoleon”. As for Taoiseach Leo Varadkar, “Why isn’t he called Murphy like all the rest of them”.

Such jibes find a way back to foreign capitals. Mr Johnson has had nothing useful to say about Brexit. He may mean it when he threatens to take Britain out of the Union by October 31st, with or without a deal. But there is no certainty he can secure a majority in parliament for crashing out. My sense is that the odds are stacked against it.

Boris Johnson on Varadkar: ‘Why isn’t he called Murphy like all the rest of them’
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The Impossible we do Immediately . . .

Do not look at the picture below if you are of a nervous disposition . . .

PRESS ASSOCIATION Photo. Picture date: Sunday June 19, 2016. Photo credit should read: Dominic Lipinski/PA Wire

A very good article by David Henig – a cut and paste job from Prospect magazine. Throughout this miserable Brexit saga the only useful and informative news has come from individuals who know and understand their subject. Parliament in general, and the Governments(s) in particular either don’t seem to know what they are talking about, or if they do in dded know, they choose to ignore, conceal of obfuscate it. The byline begins the article by stating :

“The consequence of stated government policy would be a delayed crash-out departure at the end of the transition”.

~ ~ ~ ~ ~

Briefly, there was just a hint that the Brexit dialogue might start reflecting international negotiating norms. That in the event of a Conservative majority the UK would leave the EU at the end of January 2020, then recognising that a free trade deal with the EU could not be achieved during the 10-month transition, accept an extension and give ourselves until the end of 2022 to deliver the future relationship. Three years to conclude an FTA with the EU would be ambitious in light of its previous timescales, but perhaps given the unique circumstances just about achievable.

Sadly, the UK experience since 2016 has shown that any suggestion of adopting international norms or best practice, such as sensible schedules or ensuring your policies have domestic support, does not last long in the hands of ministers. Their determination to prove that Brexit means Brexit, and that whatever Brexit means it should be done badly, prevails. So it was to prove, as first Boris Johnson said he saw no reason why we’d need an extension to the transition, then Michael Gove confirmed no extension beyond the end of 2020. Never mind that the EU has never moved at such speed before, that the UK does not yet know the detail of what we want or what the EU may ask—it has to be end 2020.

Just to check I wasn’t missing something obvious I consulted with fellow trade experts, with experience of negotiating FTAs for other countries. To be fair, they suggested I wasn’t completely correct about EU timescales. If you’re prepared to sign up for whatever the EU prepares, they said, you might be able to get a deal in time. Even given the flexibility of what Brexit may mean, however, I wasn’t sure it could possibly mean signing up to everything the EU wants.

The prime minister has said though that we can make a deal more quickly because we start from complete alignment with the EU. That might be the case if we were prepared to stay like that, but again, Brexit surely doesn’t mean continuing to align ourselves with every EU rule forever. Wherein lies the essential point: a trade deal is for life, or at least a mighty long time, not just for Christmas 2020. And when on a journey it tends to be useful to know your destination as well as the starting point.

An alternative explanation for the optimism is that actually all we want is a deal to remove tariffs, and that this in itself should be relatively simple. On the basis that trade is good, the EU will then be fine with a simple zero-tariff deal, and meanwhile global Britain will start conquering foreign markets. It is hard to square this vision however with any previous agreement the EU has made, with any other country. After all, it is the most ardent Brexit supporters who point out frequently just how protectionist they believe the EU to be. They always argued it was too closed to global markets, yet suddenly they are expecting a complete change just for the UK?

This also isn’t the Free Trade Agreement the UK envisages, at least according to the Political Declaration agreed by the Johnson government with the EU. Although not currently binding on either party, it is hard to square a basic FTA with the statement “This partnership will be comprehensive, encompassing a Free Trade Agreement, as well as wider sectoral cooperation where it is in the mutual interest of both Parties.” Indeed, the Johnson government wanted to ensure the negotiating objectives for the next round of Brexit reflected the PD, which was to be enshrined domestically in the Withdrawal Agreement Bill.

It seems that the UK government does then really believe that a full Free Trade Agreement can be completed in 10 months, or that it is lying about not seeking an extension, or comfortable with Great Britain having no trade agreement with the EU (Northern Ireland will be treated differently under the Withdrawal Agreement). We know many Conservative MPs would be comfortable with no trade deal being in place, as they simply don’t believe the negative economic impacts widely forecast. But let us assume for the moment that the government is being sincere and thinks a deal is achievable by the end of 2020.

On the EU side, the Commission will need a mandate for negotiations from the European Council, and the European Parliament to have a say. That’s going to take at least a couple of months, but could easily take longer with some complex questions as to what level of access to the EU the UK should have, and what the cost should be, for example in terms of fishing rights, access to EU regulatory bodies, the role of the European Court of Justice and movement of EU workers to the UK, to name but a few. Meanwhile on the UK side, the government will need to ascertain our own negotiating priorities, including for example the relative demands in areas of financial services, fishing, farming, and pharmaceuticals, and go through whatever parliamentary processes it decides. Then we need to go through the entire negotiation, for the entire economy, completing this in six months at most, before ratification and implementation in December 2020. To add another “f,” forget it.

In reality the first months of a negotiation are spent understanding the other party’s approach, which for the EU is how it treats third countries, and for the UK is as yet unknown. Only then does one get down to the detail, and the really thorough discussions on what can be achieved in each area. There is a reason why those experienced in EU negotiations believe this to be a five-seven years’ long process.

Promises, promises, of course. There’s an election to win. But there’s also UK business to support, and more than anything they need some direction, to invest with some confidence. While the government persists in denying the realities of trade negotiations, the uncertainty of Brexit continues. Promising not to extend Brexit beyond 2020 means even more of this.

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A New Theme . . .

Just done a little bit of housekeeping, new version of Word Press has arrived, and a new theme called Iconic One.

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An unnecessary slap in the face . . .

I can see that once a general election is announced Parliament is considered to be dissolved, and that business ceases until a new Parliament assembles and a Government is formed (though some work must go on somewhere) but most petitions that I have seen and, or, signed are to do with a perceived lack of fairness or positive injustices. These matter need addressing, and to convey the impression that existing petitions signed by many people will be shelved seems to say that for all the claims of democracy, the people don’t count for very much in the Westminster bubble. Why people cannot sign an on line petition because of a parliamentary playtime I do not see. Towards the end of the message it seems to say that once the dust has settled existing petitions will be once again considered – but people don’t stop living and thinking just because of indulgent shenanigans in London.

Here is the text of the email I have received which sets out the position . . .

  Dear . . . . . , You recently signed the petitions: Political parties must have a membership and a democratically elected leader.
https://petition.parliament.uk/petitions/273433 Do not prorogue Parliament
https://petition.parliament.uk/petitions/269157 Because of the General Election, the closing date for the petitions you signed has changed. All petitions now have to close at 00:01am on 6 November. This is because Parliament will be dissolved, which means all parliamentary business – including petitions – will come to an end until after the election. This means the petitions site will be closed and people will not be able to start or sign petitions. We’re sorry we weren’t able to give you more notice that this would happen. The petitions will be available for people to read on the site even though it will be closed for signatures. These petitions won’t be reopened after the election. The Government can’t respond to petitions during the election period. This means if any of the petitions has over 10,000 signatures, they can’t receive a response from the current Government after 5 November. After the election, the new Government will have to decide whether it wants to respond to petitions from before the election. The current Petitions Committee, the group of MPs who decide whether petitions are debated, won’t exist after 6 November. This means that if any of the petitions has over 100,000 signatures, they can’t be scheduled for debate during this Parliament. After the election, there will be a new Petitions Committee, and they will be responsible for deciding which petitions are debated. The petitions site will open again after the election, but at the moment we don’t know exactly when. You can follow us on Twitter @HoCPetitions for updates, or check back on the petitions site for news if you prefer. Ahead of the General Election on 12 December, make sure you’re registered to vote. You can check whether you’re eligible to vote and find out how to register at: https://www.gov.uk/register-to-vote. The deadline to register to vote is Tuesday 26 November. Many thanks,
The Petitions team
UK Government and Parliament
 
  
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Parliamentary Lies . . .

First, a post from the Full Fact organisation . . .

Following Tuesday night’s parliamentary vote, (22 Oct 19), the Conservative Party claimed repeatedly on both Facebook and Twitter that “Boris’s Brexit deal has passed Parliament”.

It hasn’t.

The House of Commons passed the Withdrawal Agreement Bill’s “second reading”. But this is just one early stage in the process of passing a Bill. It will then move onto “committee stage”, where MPs have the chance to examine the Bill in detail and add amendments to it.

It’s not helpful for the governing party to misrepresent the way legislation is passed in the UK, which is already a complex process that can be hard to follow, and risks unnecessary confusion among citizens.
This is wrong and unhelpful

UPDATE: Our fact check has since been featured on the front page of the Evening Standard.

LINK


And now, from the “Scotland in Europe” Newsletter . . .

“Amazingly the PM has said the Scottish Parliament has no role in approving the Bill even though the UK Government’s own explanatory notes list 17 instances where legislative consent from the Scottish Parliament is required.”
twitter.com/…

The Twitter references are published as images below. The print is quite small in the images, so it is probably better to follow the link to Twitter given above . . .

 

Faisal Islam is the, or an, Economics Editor at the BBC – an organisation which itself is frequently criticised for allegedly biased reporting these days.

Faisal Islam’s first tweet on the subject – above – and below an additional one plus his own correction . . .

I can remember no previous time in my life when the reporting and analysing of parliamentary lies has been so necessary, or so common. It is now necessary several times a week. Apropos Boris Johnson, some people think he is a liar, some think he cannot tell truth from untruth, others think he is simply not interested in mastering the detail of his job and so just wings it as he sees fit. He opens his mouth and words fall out, often incoherently and at random.

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To scrutinise . . . or not, or, The perils of the Johnson method.

This is a long read, but even if you only glance at a few paragraphs it shows just how important it is to have a proper scrutiny of proposed legislation – not just to let it go through on the nod as the Government seems to want . . .



UK CONSTITUTIONAL LAW ASSOCIATION

Constitutional Law Group October 24, 2019.
Adam Tucker: A First Critical Look at the Scrutiny of Delegated Legislation in the Withdrawal Agreement Bill

In this post, I make a preliminary attempt at assessing the provision made in the EU (Withdrawal Agreement) Bill – or WAB – for the scrutiny of the legislative powers which it delegates to the executive. My conclusions are not positive. The scrutiny procedures it seeks to enact are inadequate – so inadequate that it would be a constitutional mistake for Parliament to approve this aspect of the WAB without significant amendment. At the very least (or so I suggest) the Bill ought to be amended to incorporate the so-called “sifting process” developed for equivalent delegated powers under the European Union (Withdrawal) Act 2018 (EUWA). Better still, this should be seen as an opportunity to embrace further incremental improvements on that process.

The scrutiny provisions in the WAB are comparable to – indeed they are partly modelled on – the arrangements initially proposed for delegated legislation under EUWA as originally published. But in that original form, those proposals did not survive parliamentary scrutiny. They were widely condemned as an inappropriate transfer of power to the executive, emphatically criticised by multiple parliamentary committee inquiries, and ultimately amended. In other words, the scrutiny arrangements in WAB are an attempt to revisit an approach to scrutinising delegated legislation which Parliament has already recently rejected and amended. Enacting them would be a regrettable step backwards in terms of scrutiny of executive legislative activity, and would contradict the considered Parliamentary verdict on this issue elaborated during the passage of the 2018 Act.

At the time of writing, the government’s first programme motion – which proposed an extremely compressed timetable for scrutiny of the Bill – has been rejected by the House of Commons. But it remains government policy to pursue an extremely fast passage through Parliament for the WAB, certainly fast enough to inhibit thorough scrutiny of its proposals. With that accelerated context in mind, this post is not comprehensive – I generalise a little, I omit discussion of some important delegations and some nuances, I necessarily speculate on the full substantive importance of some clauses, and I have undoubtedly missed things (particularly but not exclusively connections between various aspects of the overall scheme in the Bill).

Still, the structure of the key elements of the Bill’s approach to delegated legislation is relatively clear. Alongside many discrete delegations (which I do not discuss here) two significant bundles of delegations can be discerned. All of the powers in each of these two bundles are “Henry VIII” powers – i.e. they extend to the amendment of primary legislation. And moreover (because they each rely on the definition of “enactment” in clause 37) all are prospective Henry VIII clauses. That is, these two main bundles of delegated powers in the WAB both empower the executive to amend primary legislation, including primary legislation passed after the passage of the WAB itself.

The first group, which I will call the Implementation Powers, consists of provisions concerning the domestic regulation of the Implementation Period. These take the form of insertions by the WAB into EUWA (in particular new sections 8A, 8B and 8C, which themselves take effect alongside and can be used to moderate the application of new sections 7A and 7B). Now, the substantive scope of the first two of these powers is not necessarily clear on the face of the Act. Section 8A would empower the executive to modify how provisions of EU law (saved from the repeal of the ECA by section 1A) are read in domestic law. And Section 8B empowers the executive to implement Part 3 of the Withdrawal Agreement, that is the “Separation Provisions” concerning the winding down of the application of EU law in the domestic legal order and the disentanglement at the end of the implantation period, including the regulation of the continued circulation of goods placed on the market before separation, ongoing customs procedures, taxation, intellectual property and police cooperation. It is hard to confidently anticipate the possible uses of this kind of power. This substantive opacity of these delegations is comparable to the similar characteristic of EUWA s8. And as the use of s8 for a remarkably broad range of policy interventions has demonstrated, this kind of substantively opaque delegation has the potential for staggering scope (for discussion and examples, see here and here). It would be unwise to assume that these powers are tightly constrained by the Treaty they are designed to implement and sensible to anticipate that as the substantive scope of s8A and s8B emerges, they will have the potential to be used in similar ways, and with similar range, to the s8 power. On the other hand, Section 8C is a remarkable clause whose substantive potential is plain on its face – it delegates to the executive essentially full authority over the implementation of the Northern Ireland Protocol. Proper scrutiny of that task – which has been at the heart of negotiations throughout, and whose resolution remains delicate – is fundamental to the legitimacy of the withdrawal process.

The scrutiny requirements for the exercise of these Implementation Powers are – consistent with the existing logic of the EUWA – inserted into Schedule 7 of that Act. Schedule 7’s existing provisions famously (following the amendments secured in Parliament during that Act’s passage) include the “sifting mechanism” through which dedicated committees (in each House) can recommend that some statutory instruments which would otherwise be subject only to negative procedures be upgraded to affirmative procedures. Whilst those recommendations are not binding, they have generally been followed by the government. And the institutionalisation of that process has resulted in the development of a parliamentary practice of case-by-case reflection on the appropriate scrutiny level for different instances of delegated legislation and an increasingly sensitive engagement with the underlying question of what kinds of delegated legislation ought to be subject to what kinds of scrutiny. Unfortunately, the WAB’s insertion into Schedule 7 of scrutiny requirements for the Implementation Powers does not tie into this sifting mechanism. Instead, it simply repeats precisely the approach which Parliament had previously judged inadequate. The scrutiny requirements for each of ss8A, 8B and 8C are organised around the simple formulaic presumption (which appears again and again, not just here but throughout the WAB) that instruments be subject to negative procedures unless they amend primary legislation (or, roughly equivalent, what is known in the withdrawal scheme as “principal EU legislation”). That is, the use of these powers as Henry VIII powers is the primary trigger for affirmative parliamentary scrutiny. But this is a problematic presumption – the use of delegated powers to amend primary legislation is, of course, an important activity which needs proper scrutiny. But the prominence of this presumption risks masking the – often equally significant – uses to which delegated legislation can be put without altering primary legislation. Some other specific substantive uses of these powers do also trigger affirmative scrutiny – in particular, 8C (the NI protocol implementation power) cannot be used to reform public authorities, impose fees, create new criminal offences, create legislative powers, or modify market access rules without parliamentary approval. But the bulk of legislative activity under these clauses will, under the scheme as published, be subject only to negative procedures in Parliament. In summary: 8A, 8B, and 8C empower the executive to legislate with significant scope in important policy areas, and a substantial proportion of exercises of those power – certainly much higher than under comparable delegations in the EUWA – will not be subject to affirmative scrutiny in Parliament and cannot be upgraded to undergo such scrutiny.

The second significant group of delegated powers, which I will call the Citizens’ Rights powers, are created in WAB clauses 7-14. They empower the executive to implement the whole range of provisions in the Withdrawal Agreement for citizens’ rights including residence, entry, frontier workers, recognition of professional qualifications, social security coordination, discrimination and employment rights, and the creation and administration of appeals or review mechanisms against some decisions taken in those contexts. In contrast to the Implementation Powers, this bundle is far from opaque. The substantive significance of this delegation of legislative power is plain to see; it covers essentially the entirety of one of the broadest, most sensitive and most important policy areas in the withdrawal process. And, again, whilst they are undoubtedly subject to some constraints in that they are limited to the implementation of the Withdrawal Agreement, they clearly empower extensive intervention by the government.

The scrutiny requirements for these Citizens’ Rights powers are set out in WAB Schedule 6. They follow the same formulaic pattern that we saw applied to the Implementation Powers above: the starting point is that their use as Henry VIII powers is subject to affirmative scrutiny. The first uses of each of the cl.7-9 powers (which need not be far-reaching) are also subject to affirmative scrutiny. But other and subsequent exercises of these powers (which certainly could be far-reaching) will be subject only to negative scrutiny, again with no provision made for any mechanism to upgrade the scrutiny given to negative instruments.

The WAB’s provisions for the scrutiny of delegated legislative power are, then, consistently arranged around an inadequate formulaic approach, which guards mainly against the abuse of delegated powers as Henry VIII clauses, but (due to the limitations of the prevailing negative procedures) leaves most other exercises of these powers essentially unscrutinised. Furthermore, the combination of formulaic criteria with the absence of a sifting mechanism means that the allocation of scrutiny mechanisms to these powers is wholly inflexible – no provision is made to enable the upgrading to affirmative procedures of significant exercises of the delegated powers which would otherwise be subject only to annulment; and it would in effect require subsequent primary legislation to introduce any such flexibility into the scheme. The range of policy areas to be subjected to this inflexible and inadequate framework – and thus left to the executive shielded from effective Parliamentary scrutiny – is extremely broad. On its face, it encompasses two of the most significant policy arenas of the whole withdrawal process, the Northern Ireland protocol and Citizens’ Rights. And the Implementation Powers will undoubtedly be used to legislate in other important policy areas.

What amendments ought to be made is, however, an awkward problem given that time pressures are suppressing the usual institutional mechanisms for exploring this kind of problem and carefully proposing alternative approaches. In normal circumstances (and using the passage of EUWA as a guide) this issue would be tackled, drawing on a wide range of expertise, by multiple parliamentary committees, likely including (in the House of Commons) the Procedure Committee and (in the House of Lords) the Constitution Committee and the Delegated Powers and Regulatory Reform Committee. And the committees involved in the sifting process under EUWA – the European Statutory Instruments Committee and the Secondary Legislation Scrutiny Committee in the Commons and Lords respectively – might also take the opportunity to share their experiences with that scheme. The probable bypassing of this aspect of the normal legislative process on the WAB is a startling illustration of the scrutiny gap between this Bill and more typically timetabled legislation.

On the substance, the starting point for amendments on this issue must be an acknowledgement that under-scrutiny of delegated legislation is a standing problem in the UK constitution. Accordingly, statutes delegating significant substantive powers to legislate (like the WAB, but also more generally) should incrementally innovate in order to improve the situation. Yet as published, the WAB proposes a step backwards. And even the sifting process in EUWA represented only modest progress. On the one hand, section 8 instruments are among the best scrutinised in the UK constitution. But on the other hand, experience has shown that there are still important (but in principle avoidable) limitations on the effectiveness of even that scrutiny process: far-reaching policy changes are still subject to little or no proper scrutiny even under the sifting mechanism. So at the very least, WAB should maintain the standards set in EUWA: the provisions on scrutiny of the Implementation Powers and the Citizen’s Rights powers should be amended in order to bring legislation made under those powers into the regime of the sifting mechanism. On further examination, this is likely also to be the case for other powers which I have not covered here. Ideally, amendments would go further still, in the light of the experience of that sifting mechanism. In particular, consideration should be given to making the recommendations of the sifting committees binding (or perhaps, at the very least, more difficult to circumvent) and to ways of enabling them to prompt better informed and more far-reaching debate (where appropriate) on the floor of the House.

The scale of the withdrawal process makes large scale delegation inevitable; its very nature entails a shift of authority towards the executive. This issue needs careful management – yet the approach to scrutiny taken in the WAB is wholly unsatisfactory. It was rejected by Parliament last time it was proposed. It should be rejected again in favour of more intrusive scrutiny techniques.

I am grateful to Mike Gordon, Alexandra Sinclair and Joe Tomlinson who generously commented on earlier drafts of this post at – obviously – very short notice.

Adam Tucker, University of Liverpool

(Suggested citation: A. Tucker, ‘A First Critical Look at the Scrutiny of Delegated Legislation in the Withdrawal Agreement Bill’, U.K. Const. L. Blog (24th Oct. 2019) (available at https://ukconstitutionallaw.org/))

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