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Great Repeal Bill Brexit row: Keep Henry VIII’s name out of it

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One wonders whether the outrage over the “Great Repeal Bill” has been a little overdone. The White Paper explaining how the UK Government will handle all the mass of EU legislation that needs to remain in place after Brexit notes that much of it, while remaining in force, will need “correcting” by delegated legislation – powers given to ministers by Parliament. 

The White Paper explains that this correcting will simply be to ensure the laws, all of which will be transposed into UK law, can continue to operate rather than become ineffective upon repeal of the European Communities Act 1979. Critics fear the Government will go further than this and use delegated legislation, or “Henry VIII powers”, to actually change or abolish laws and rights derived from the EU.     

But this post is more concerned about whether the respectable name of King Henry has been blackened by being dragged into this sordid modern row. “Henry VIII powers” are quite often included in parliamentary legislation (increasingly and controversially of late) to allow a minister to later change the statute by issuing a statutory instrument. 

The name (or nickname, really) of the powers has been mistakenly taken rather literally by some parts of the media with suggestions that the powers, legitimately given by a democratically elected Parliament, are actually derived from the despotic Henry VIII himself, that the Government has dredged up some arcane pre-democratic power and is about to swing Henry VIII’s very own axe to abolish EU law. Thus the Evening Standard: “Ministers defended so-called Henry VIII clauses dating back to 1539”. CNN took a similar line: “The British government wants to invoke controversial powers that date back 500 years to the time of King Henry VIII.” The Independent called them “ancient powers”. This is simply untrue.

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Bonfire of EU rights: Bring on the Brexit bureaucrats!

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Note: the Government has now (30 March 2017) published its Great Repeal Bill white paper here and it states that delegated legislation will be used to “correct” UK law so that the legacy of EU law can continue to operate (eg by removing references to EU institutions). EU law will therefore be enshrined as freestanding UK law. It has also produced the European Union (Withdrawal) Bill (July 2017) since when many people have raised the fears expressed in this piece. It also remains relevant regarding the sources of EU law and the complexity of enshrining them in UK law.

So what happens after Theresa May’s Great Repeal Bill and Brexit? A disturbing prospect has arisen of a bonfire of legal rights currently held by British citizens could be brought about on little more than the say-so of government ministers. No parliamentary debate, little likelihood of votes by MPs, rights lost by administrative order rather than new laws passing through both Houses of Parliament.

Here is the plan: Given there are many legal rights enshrined in UK law that derive from the European Union and which, under the Great Repeal plan, will remain in effect after Britain leaves, an efficient way must be found to comb through them and disapply them where necessary. It could take mammoth parliamentary sessions passing complex repealing legislation. Instead, and rather chillingly, Conservative barrister Martin Howe QC (among others) has said ministers should be “given powers” to disapply them bit by bit as and when it is deemed appropriate.

So Parliament will be asked to pass a piece of primary legislation in the “Great Repeal Bill”, handing those powers to ministers, in other words allowing the ministers to repeal or disapply European law at will through secondary (delegated) legislation, probably statutory instruments (see below). It will be “the quickest way of taking the necessary decisions … to reemploy or replace them” he told BBC Radio 4’s Unreliable Evidence 14 Sept 2016.  

But giving such powers to the Government could leave whole areas of law at the mercy of ministers including employment and equality rights, privacy and consumer rights, environmental law, copyright protections, safety law, food hygiene and many laws affecting business. It is difficult to establish how much British law is driven by the EU but FullFact.org says this:

“An estimated 13% of Acts [primary legislation] and Statutory Instruments have an EU influence, whereas that rises to 62% when EU regulations are included in addition to Acts and Statutory Instruments.”

So, if all this is open to repeal or amendment by delegated legislation, MPs may as well go home for the duration. There will be hardly any other business and in effect the Government will be able to pass wholly new legislation in large areas of law – presumably not quite the victory for  the sovereignty of Parliament (not Government) that some Brexiters said they wanted. The proposal is constitutionally dubious, impractical – and wholly oppressive.

But does this plan even make sense? In particular what about all the EU law that is not part of the 13% that has been rendered into British legislation – the Regulations, Decisions and rulings of the Court of Justice of the European Union at Luxembourg? If FullFact is right, this must make up getting on for 40% of UK law – yet it is not written into our legislation and so can’t obviously be “repealed” by Parliament or government ministers. What will happen to it all? Read the rest of this entry

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