The Bill implementing the Trade and Cooperation Agreement is an exercise in the Government taking power from Parliament

30th December 2020

Today Parliament will be expected to pass, in one single day, the legislation implementing the Trade and Cooperation Agreement into domestic law.

This situation is exceptional and unsatisfactory.

The bill is currently only available in draft form, on the government’s own website.

As you can see, this means that ‘DRAFT’ is inscribed on each page with large unfriendly letters.

And we are having to use this version, as (at the time of writing) the European Union (Future Relationship) Bill is not even available parliament’s  ‘Bills before Parliament’ site.

The draft bill is complex and deals with several specific technical issues, such as criminal records, security, non-food product safety, tax and haulage, as well as general implementation provisions.

Each of these specific technical issues would warrant a bill, taking months to go through the normal parliamentary process.

But instead they will be whizzed and banged through in a single day, with no real scrutiny, as the attention of parliamentarians will (understandably) be focused on the general implementation provisions, which are in Part 3 of the draft bill.

And part 3 needs this attention, as it contains some remarkable provisions.


Clause 29 of the draft bill provides for a broad deeming provision.

(Note a ‘clause’ becomes a ‘section’ when a ‘Bill’ becomes enacted as an ‘Act’.)

The intended effect of this clause is that all the laws of the United Kingdom are to be read in accordance with, or modified to give effect to, the Trade and Cooperation Agreement.

And not just statutes – the definition of ‘domestic law’ covers all law – private law (for example, contracts and torts) as well as public law (for example, legislation on tax or criminal offences).

It is an ingenious provision – a wave of a legal wand to recast all domestic law in whatever form in accordance with the agreement.

But it also an extremely uncertain provision: its consequences on each and every provision of the laws of England and Wales, of Northern Ireland, of Scotland, and on those provisions that cover the whole of the United Kingdom, cannot be known.

And it takes all those legal consequences out of the hands of parliament.

This clause means that whatever is agreed directly between government ministers and Brussels modifies all domestic law automatically, without any parliamentary involvement. 


And then we come to clause 31.

This provision will empower ministers (or the devolved authorities, where applicable) to make regulations with the same effect as if those regulations were themselves acts of parliament.

In other words: they can amend laws and repeal (or abolish) laws, with only nominal parliamentary involvement.

There are some exceptions (under clause 31(4)), but even with those exceptions, this is an extraordinarily wide power for the executive to legislate at will.

These clauses are called ‘Henry VIII’ clauses and they are as notorious among lawyers as that king is notorious in history.

Again, this means that parliament (and presumably the devolved assemblies, where applicable) will be bypassed, and what is agreed between Whitehall and Brussels will be imposed without any further parliamentary scrutiny.


There is more.

Buried in paragraph 14(2) of schedule 5 of the draft bill (the legislative equivalent of being positioned in the bottom of a locked filing cabinet stuck in a disused lavatory with a sign on the door saying ‘Beware of the Leopard’) is a provision that means that ministers do not even have to go through the motions of putting regulations through parliament first.

Parliament would then get to vote on the provisions afterwards.

This is similar to the regulations which the government has been routinely using during the pandemic where often there has actually been no genuine urgency, but the government has found it convenient to legislate by decree anyway.

Perhaps there is a case that with the 1st January 2021 deadline approaching for the end of the Brexit transition period, this urgent power to legislate by decree is necessary.

But before such a broad statutory power is granted to the government there should be anxious scrutiny of the legislature.

Not rushed through in a single parliamentary day.


There are many more aspects of this draft bill which need careful examination before passing into law.

And, of course, this draft bill in turn implements a 1400-page agreement – and this is the only real chance that parliament will get to scrutinise that agreement before it takes effect.

You would not know from this draft bill that the supporters of Brexit campaigned on the basis of the United Kingdom parliament ‘taking back control’.

Nothing in this bill shows that the Westminster parliament has ‘taken back control’ from Brussels.

This draft bill instead shows that Whitehall – that is, ministers and their departments – has taken control of imposing on the United Kingdom what it agrees with Brussels.

And presumably that was not what Brexit was supposed to be about.


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21 thoughts on “The Bill implementing the Trade and Cooperation Agreement is an exercise in the Government taking power from Parliament”

  1. Clause 29 giving the agreement direct effect in UK law is something of an irony, given that one of the biggest objections to the EU among those upset about sovereignty was that some EU rules had direct effect in our law. But the government put themselves in a position where there wasn’t time to draft all the legal changes that would need to go through, so here we are.

  2. Thank you David Allen Green for your insightful but very worrying analysis. I really appreciate the efforts you go to to shed light on how the current U.K. government is choosing to operate. Without the appropriate checks and balances in place, and those that are being eroded on almost a daily basis, we as a nation, truly are in Orwellian times.

  3. Thank you: this is important.

    A couple of remarks:
    1) This reads like the last testament of Dominic Cummings. He has made no secret of his contempt for Parliament and parliamentary process. What is perhaps less remembered is that Johnson probably owes less to Parliament than any Prime Minister since Sir Alec Douglas Home: his career was made entirely outside, and he has had no real success at the Despatch Box or on the back benches.
    2) I’m sure any criticism on the lines that David Green presents will be ‘countered’ by the claim that “The EU made us do it.” In fact, the procedure of adoption is entirely a matter for the UK and moreover, such clauses as those highlighted would never get through the EU procedures – and if they did would be rejected by the Court of Justice. The EU has a base of Law, not of pure power, and it respects those laws.

  4. wow. All laws are to be treated as though they were amended to comply with this Act. How is a court going to work out how to interpret that? Will contracts drawn up to comply with previous laws now not be valid? Will someone be able to claim that not only they cannot fulfil a contractual obligation because of the new law but that the obligation is no longer contractually required?

    It is potentially a mess.

  5. I noted that Clause 36 deleted the provision for 21 days for parliament to consider the Bill. This normally applies to the scrutiny of international treaties – which I assume this is.

    This was also noted by SPICe, the Scottish Parliament Information Centre –
    “The Bill disapplies the legislation which gives the UK Parliament time to object to the UK ratifying (formally concluding) an international agreement. That rule is contained in section 20 of the Constitutional Reform and Governance Act 2010, and requires international agreements to be laid before the UK Parliament for 21 sitting days before they can be ratified. Section 20 is disapplied by clause 36 of the Bill. It has not been disapplied, by this Bill, in relation to future agreements.”

  6. This is terrifying. It seems so completely removed from everything the UK has stood for for hundreds of years.

    Might there be scope for the courts to overrule any particularly egregious steps on the grounds that they are (whisper it) unconstitutional?

  7. Love the HHGTTG references!
    It feels like the opposition have missed an opportunity to sing from the rooftops how crazy it is to pass this in a day. (And as such I think they should abstain.)
    Thank you for keeping me up to date with it all

  8. Thank you very much for your insightful commentary, on this issue and much else. It is a bright spot for me in what is otherwise a grim landscape going into 2021; and, just as importantly, provides insights and avenues for further thought which are seldom on offer elsewhere. I am also an FT subscriber, but find the blog an invaluable addition to my daily reading and—as much as anyone is looking forward to anything about 2021—look forward to further posts in the New Year.
    Best wishes,
    Laurel Mittenthal (a solicitor abroad)

  9. One can only wonder why, particularly after all the “fun and games” following the Withdrawal Act and the Parliamentarians who apparently ‘knew what they voted for’ but didn’t apparently bother to read it, that an instrument to provisionally accept the new treaty subject to a more reasonable period of scrutiny in the new year is not being brought to Parliament.

    That further Henry VIII powers are being sought without proper scrutiny does not surprise me with the current government. It is a cause for dismay and extreme concern that at every opportunity the current government and PM work very hard to avoid appropriate scrutiny.

  10. Just like the prorogation debacle, and stuffing the House of Lords, this is contemptuous of Parliament. Arguably it is not even required, as the UK could give the agreement provisional approval just like the EU has, and formally ratify it later. If necessary, Parliament could pass a short bill to do that, rather than one replete with expansive Henry VIII powers.

    But no, we have the political theatre of Parliament recall to pass legislation in one day, and an aeroplane flying a treaty from Brussels to be signed in London and flown back.

    But what can we do when the process of our legislature is so thoroughly controlled by an executive with a substantial majority, and little apparent concern for norms and conventions. Elective dictatorship indeed.

  11. Still pretty speechless from your blog but FWIW l thought excellent but frightening
    Your analysis highlighting this Bill’s worryingly removal of Sovereignty further away from Parliament and the Devolved Nations may be one reason why JRM has refused longer debating time. By reducing the debating time MP’s have less time to raise objections/ concerns and therefore less recordings in Hansard that could be used to criticise and/or make a case against the use of Popular politics in a Democracy and the demise of Parliamentary Sovereignty.
    Johnson’s Government is certainly taking back Sovereignty but from Parliament, and not from the EU for it already had it.

  12. Before we took back control the situation was:

    The sovereignty of Parliament is a fundamental principle of the UK constitution. Whilst Parliament has remained sovereign throughout our membership of the EU, it has not always felt like that.

    And now we’ve taken back control:
    Parliament (and presumably the devolved assemblies, where applicable) will be bypassed, and what is agreed between Whitehall and Brussels will be imposed without any further parliamentary scrutiny.

    This legislation will effectively evaporate the Brexit revolution and leave behind the slime of a new bureaucracy bereft of parliamentary oversight.

  13. While the PM seems to be stuck up his own hyperbole, the Leader of the Opposition, a formerly eminent lawyer, said not a word about all this in his speech in the Commons this morning. And Parliament goes back into recess for another two weeks. Gina Miller, where are you?

  14. Since 34 (2) has “Regulations under this section may make any provision that could be made by an Act of Parliament (including modifying this Act)”, would anything prevent such a regulation from modifying the Act to remove the exclusions listed in 34 (4) (creating criminal offenses, amending HRA, etc)?

    If not, then this is close to being the 2020 version of the German “Enabling Act” of 1933, whose first article starts “In addition to the procedure prescribed by the constitution, laws of the Reich may also be enacted by the government of the Reich.”

    1. You are right, there is a risk that this regulation-making power could be used in unexpected ways, but analogies like this can be pushed too far. There is a limitation in that any regulations made under this provision must be about implementation of the agreements, or dealing with matters arising from or relating to the agreements. That is pretty vague and loose but still sets some sort of boundary, and assuming judicial review is still available, a court might be able to strike down any regulation that clearly goes beyond those bounds, for example by purporting to modify the legislative regime which parliament has set for making such regulations. With a parliamentary majority of 80, the government could just amend the Act in the normal way.

  15. David

    Would I be correct in thinking the following?

    One of the ‘unintended consequences’ of membership of the EU, has been a slow transfer of power from Parliament to the Executive, because the royal prerogative means the Executive can act on foreign policy issues using powers derived from the Sovereign and not from the legal authority of an Act of Parliament.

    Leaving the EU would naturally reverse this process, so it seems to me, and you’re blog appears to follow the same line of thinking, the Government has legislated to prevent this happening and no one in Parliament appears to have noticed or cared?

  16. It seems as if Brussels has retained control – as much as the UK executive has taken control from the UK parliament.

    Let’s hope the European Parliament does a better job of scrutinising legislation ‘on our behalf’ than our own elected MPs.

    One does begin to wonder why we bother electing MPs at all – if all we are really doing is electing a governing party let by a ‘monarchical’ PM.

    1. It seems to me, the Joint Partnership Council – which will resolve any disputes between the UK and EU with regards to this Agreement, is in fact a pseudo-government, able to impose amendments to the Agreement, beyond the reach of both Parliament & the Courts.

  17. I have very much enjoyed your recent commentary – thank you. You mention that domestic law in clause 29 of the FR Bill (now s.29 of the Act) covers private law as well as public law. This would be of some considerable concern – but I wondered what you based this on? The definition in s 29(4) just seems to relate to the law of England and Wales, Scotland or Northern Ireland and doesn’t explicitly mention private law. Thank you!

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