Most famous for having six wives and dissolving the monasteries, Henry VIII is remembered by constitutional experts for something rather different: the Statute of Proclamations 1539.  This allowed the King to change legislation by order, rather than through parliament; a method of lawmaking convenient for those in power but wholly at odds with democracy and accountability.  The present government seems likely to enact something as far-reaching as Henry’s law.

To give legal certainty as the UK leaves the EU, the government promised to bring forward a bill to preserve current EU law in Britain unless and until parliament voted to repeal or modify that law. Somewhat ironically, ministers called this the “Great Repeal Bill” on the grounds that it will repeal the current legislation through which the UK is a member of the EU.

The difficulty for ministers and for parliament is that although there are vast areas of our lives barely touched by EU legislation – health, education and social security are some examples – most business regulation has been agreed at Brussels since the single market was established and we have also adopted many joint measures to tackle cross-border crime and terrorism. 

Repealing all these laws would lead to chaos. As the UK has not yet left the EU, we do not know which we will want to keep and which we will want to amend. Furthermore, some of the EU’s regulations, such as those to do with agriculture, impact directly on the responsibilities of the devolved administrations in Scotland, Wales and Northern Ireland. Those administrations may well argue that they should determine new policies in their area and not the UK government.

The government’s solution to these problems is to ask parliament to pass primary legislation – the Great Repeal Bill – that will enable ministers to repeal or modify UK law in the manner of Henry VIII by ministerial orders. But this approach would deprive parliament of the opportunity to amend the proposals (such orders are unamendable) and some may not be put to parliament at all. Far from parliament taking back control from Brussels, it would be giving away its power to ministers.

The House of Lords Constitutional Committee has today argued that there should be a distinction between converting EU legislation into UK law, a largely technical process, and replacing EU legislation with new policies. The latter is not technical but highly political and in some cases (agriculture is a good example) likely to be highly contentious. The government’s Brexit White Paper did not draw such a distinction but instead talked of using ministerial orders to repeal EU legislation that would not “function sensibly” once we leave, an unusual form of words whose meaning is not clear.

Leavers sometimes argue that the European Communities Act 1972 contains a Henry VIII clause that enables EU law to pass without proper scrutiny, but they ignore the fact that EU laws have already been subject to wide-ranging debate and scrutiny before national legislation is brought forward to implement them. 

The prospect of a Henry VIII clause in the Great Repeal Bill has unsurprisingly raised concernsthat it might be used to scrap key EU measures, such as employment rights for workers. Having tried to evade parliamentary scrutiny over triggering Article 50, ministers need to show proper respect for our constitutional practice and not use the Great Repeal Bill to enact new policies.

by Nick Kent | 07.03.2017 

Edited by Hugo Dixon

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