I wish this were some kind of sick joke, but it is there on page 48 of the Conservative manifesto, in black and white. “After Brexit we also need to look at the broader aspects of our constitution: the relationship between the government, parliament and the courts; the functioning of the royal prerogative; the role of the House of Lords; and access to justice for ordinary people,” it states.
“The ability of our security services to defend us against terrorism and organised crime is critical.
“We will update the Human Rights Act and administrative law to ensure that there is a proper balance between the rights of individuals, our vital national security and effective government.
“We will ensure that judicial review is available to protect the rights of the individuals against an overbearing state, while ensuring that it is not abused to conduct politics by another means or to create needless delays”.
One shouldn’t take these things personally, but it’s hard not to imagine Johnson was thinking about me and my two successful legal challenges to, first, Theresa May’s government, and then his when he approved the line “conducting politics by other means or to create needless delays.”
Miller 1 – as the lawyers now call it – focused on May’s attempt to to deny parliament her sovereign right to vote on invoking Article 50. Miller 2 focused on his illegal prorogation of parliament to push his disastrous Brexit deal through without proper parliamentary scrutiny.
When Johnson delivered his short manifesto speech on Sunday, very much in the manner of an accomplished after-dinner speaker, there was little to hint at the dark truths hidden away in his manifesto. It was essentially a document for constitutional change and modifications to the Human Rights Act. And it was presaged by certain right wing newspapers talking about the “people vs parliament” or the “people vs the judiciary”, despite this trampling on the most basic tenets of democracy that have made our “mother of all parliaments” revered the world over.
Believing in the sanctity of parliament and understanding the dangers of undermining it for political gain is crucial to our country’s stability. No prime minister has ever had the audacity to challenge democracy with democracy.
Parliament is the “people” because the people are represented by those they vote for in general elections. I acknowledge the deficits in both our first-past-the-post electoral system, as well as politicians getting away with dishonesty, but it is the system we have.
When it comes to the judiciary, they are once again being turned into a tool for partisan and corporate interests. Our judges are the last check and balance we have on politicians attempts to put themselves above the law.
These sinister lines about seeking to redraw the relationship between the government, parliament and the courts show that for Johnson, nothing is now off limits – even if it threatens the way our country has been governed for centuries.
As things stand, the prime minister and the executive cannot resort to changing the royal prerogative to diminish our rights without parliamentary scrutiny or approval – as the judgment in my first case makes clear.
Johnson has not, however, given up on his monstrous power grab. These manifesto commitments need to be seen within the context of the Henry VIII clauses in the Withdrawal Agreement Bill (WAB). It’s scattered with references to giving the minister (whoever he or she may be) and devolved authorities wide-ranging powers to implement delegated or secondary legislation.
The scope of those proposed powers is extremely broad, they give the minister the subjective discretion to “make such provisions as he considers appropriate”. In many instances, there are no limits (like those included in the EU Withdrawal Act 2018) on the exercise of the power, such as preventing retroactive application of the law, the creation of criminal offences or tax implications, and the establishment of new authorities or time limited powers.
The mechanics for parliamentary approval are set out in schedule five of the WAB, but whether the secondary instrument is to be passed by the affirmative or negative resolution procedure is not clear.
In some cases, it appears that Johnson is seeking to write the House of Lords out of the next difficult phase of the Brexit process altogether. It seems he wishes to see that its role is reduced to observing motions in the House of Commons without its own separate power to approve or oppose.
Why is that important? The type of resolution procedure determines the extent and intensity of parliamentary scrutiny. Neither delegated procedure ensures full parliamentary scrutiny, which is why the use of Henry VII powers is so contentious and alarming. Let’s be clear – attempts are being made to make precedents here that will go far and beyond Brexit and threaten our most basic and cherished of freedoms.
Dominic Cummings – the intellectual driver of Johnson’s government – has long been an exponent of disruptive politics, but we need to be clear about what new order he has in mind for when we disrupt what we now have.
Johnson’s manifesto predictably cites “national security” as one of the reasons for giving up on so many of our ancient rights, which reminds me of Benjamin Franklin’s famous warning that “those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”
Gina Miller is the founder of the tactical voting website remainunited.org