The Great Repeal Bill: a giant Henry VIII clause?

03 Oct 2016 | by George Peretz QC

The Prime Minister has now announced that the 2017/2018 session of Parliament will feature a “Great Repeal Bill” to achieve the repatriation of EU law to the UK.

The Bill will, in particular, repeal section 2 of the European Communities Act 1972, which has long been a target of attack by those concerned by the impact of EU law on Parliamentary sovereignty.  Section 2(1) of that Act provides that EU law has effect in the UK and must be followed by the courts; section 2(2) gives wide powers to ministers to amend UK law to make it consistent with the requirements of EU law.

Section 2(2) is frequently criticised for being a “Henry VIII” provision: that is to say, it allows ministers to make wide-ranging changes to UK law without having to go through the process of primary legislation.

However, it is unlikely that the Great Reform Bill will see the end of Henry VIII clauses.  Indeed, a prominent lawyer on the “leave” side of the Brexit debate has argued that section 2(2) should not be repealed.  Instead, it should be “extended” to give ministers more power to amend UK law by statutory instrument.

Why will that be necessary?  The problem is that, before Brexit takes effect, something will need to be done about all the areas where EU law forms the legal basis for UK regulations: and it is common ground that very large parts of those regulations will need to be kept after Brexit.

Unfortunately, that is not going to be a simple task.  It is not possible just to pass a short Act saying the old rules remain in force, because they were drafted on the assumption that the UK is a member of the EU.  So, for example, EU regulations on agriculture frequently refer to the powers of the European Commission; and EU rules on medicines are a complex web of regulations giving powers to European institutions (the Commission and the European Medicines Agency) and involve recognising decisions of those bodies and of regulators in other Member States. Similarly the regulatory framework for telecoms, railways, energy, airports and air traffic all stem from European law.   There are countless other examples.  In order to avoid legal black holes, these rules will all have to be reviewed and replaced before Brexit with a new version that works in the post-Brexit world.  Much of this is technical stuff – vitally important to those affected and requiring political judgments, but not likely to be regarded as a matter of intense political controversy.  Some of it, though, will require important decisions on politically contentious matters such as environmental protection and workers’ and consumers’ rights.

So, in the period before Brexit comes into effect, a vast amount of work will have to be done to establish whether rules needed amending in areas such as financial services, regulation, pharmaceuticals, employment, agriculture, product safety and so on.  Daniel Greenberg, a former Parliamentary draftsman, describes this as “the largest scale legislation and policy exercise that has ever been carried out”.  The exercise will be even more complex (and accelerated) because it is likely that uncertainty as to the precise arrangements between the EU and UK after Brexit will persist until quite late in the day, so that detailed regulation will not be able to be finalised until that point.

There is no way in which Parliament will be able deal with this by primary legislation, within the 2 year time limits imposed by Article 50.  Once that time limit expires, the EU provisions will no longer apply, leaving the UK with a legal vacuum.  To reduce the length of uncertainty, the Great Repeal Bill will necessarily have to give power to ministers to make new laws in all these fields by statutory instrument.

That raises profound issues for Parliament.  When section 2(2) of the 1972 Act has been employed as a basis for secondary legislation, it has been used to implement EU legislation that has already undergone considerable scrutiny at EU level (by member states and the European Parliament).  In contrast, Parliament’s scrutiny of UK statutory instruments is widely regarded as seriously deficient (not least because there is no power to propose amendments).

It also raises important questions for Whitehall: in particular, it is not clear that the Government Legal Department (whose numbers have been very substantially reduced in recent years) will have the capacity to take on the amount of extra work that needs to be done, at least without a substantial recruitment campaign. And expertise in the numerous technical and policy areas affected cannot be acquired overnight.

So there is a serious risk that swathes of legislation, drafted in a hurry by overworked civil servants with inadequate knowledge of the areas concerned, will be waived through without Parliament having the means or capacity to scrutinise effectively what is being proposed. The extent of Parliamentary scrutiny depends on the terms of the parent act, and in most cases Parliament’s control is limited to approving, or rejecting, the instrument as laid before it: it cannot (except in very rare cases) amend or change it.  Not only would that sit uneasily with many leavers’ concerns to improve democratic control of the executive and to restore Parliamentary sovereignty, but it would create the risk of generating serious costs for business in dealing with inadequate, unclear, or even perverse, legislation.  The scale of the task of getting this right should not be underestimated by either Parliament or Whitehall.  Parliament will need to make certain, as it considers the Great Repeal Bill, that the powers that the Bill is bound to confer on ministers should be exercisable only after proper scrutiny by Parliament and after wide consultation and careful consideration.  If the price of a quick Brexit is rushed and incoherent legislation, prepared with inadequate democratic scrutiny and giving rise to substantial costs to business, even many leavers will wonder if that is a price worth paying.

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