The “Great Repeal Bill” and its Henry VIII Clause: Some Suggestions

It is now taken as a given in most legal and political circles that the vaunted “Great Repeal Bill” will contain a great Henry VIII clause. The purpose of this post is to speculate on how the clause might be crafted to to overcome the many constitutional problems created by Brexit and to assist Britain in the negotiation of its departure from the European Union.

The “Great Repeal Bill” was announced by the Prime Minister in her speech to the Conservative Party’s conference earlier this month. She said:

This historic Bill – which will be included in the next Queen’s Speech – will mean that the 1972 Act, the legislation that gives direct effect to all EU law in Britain, will no longer apply from the date upon which we formally leave the European Union. And its effect will be clear.  Our laws will be made not in Brussels but in Westminster.  The judges interpreting those laws will sit not in Luxembourg but in courts in this country.  The authority of EU law in Britain will end.

As we repeal the European Communities Act, we will convert the ‘acquis’ – that is, the body of existing EU law – into British law.  When the Great Repeal Bill is given Royal Assent, Parliament will be free – subject to international agreements and treaties with other countries and the EU on matters such as trade – to amend, repeal and improve any law it chooses. But by converting the acquis into British law, we will give businesses and workers maximum certainty as we leave the European Union.  The same rules and laws will apply to them after Brexit as they did before.  Any changes in the law will have to be subject to full scrutiny and proper Parliamentary debate.  And let me be absolutely clear: existing workers’ legal rights will continue to be guaranteed in law – and they will be guaranteed as long as I am Prime Minister.

Although the emphasis in the Prime Minister’s speech is on Parliament being free to change EU law going forward, it is, as my colleague Mark Elliott has put it, “almost inconceivable that the entirety of the process whereby the body of domesticated EU law is to be reviewed — and some, perhaps much, of it adjusted or removed — could be carried out in this way”. Given the extent to which EU law has flowed into the domestic legal system (into the estuaries and up the rivers, as Lord Denning memorably put it), there will almost certainly need to be a “Henry VIII” clause that allows ministers to “amend, repeal and improve” domestic law that is intermingled with EU law.

Of course, the European Communities Act 1972 also contains, in s. 2, a giant Henry VIII clause permitting the executive to introduce changes to domestic law consequent on EU law obligations. But as George Peretz QC has observed, “it has been used to implement EU legislation that has already undergone considerable scrutiny at EU level (by member states and the European Parliament)”, whereas “Parliament’s scrutiny of UK statutory instruments is widely regarded as seriously deficient (not least because there is no power to propose amendments)”. Indeed, a Henry VIII clause permitting the executive to derogate from EU law would be altogether more radical, because the principles guiding ministerial action will not necessarily have been worked out in advance through a mostly transparent process to which interested parties could contribute. Making law without meaningful parliamentary scrutiny is constitutionally unpalatable.

But if we are to have a “Great Repeal Bill” and if it must have a Henry VIII clause, here are some suggestions (on which I welcome readers’ comments) on how it might be designed.

First, any amendments proposed by ministers could be accompanied by an EU law impact assessment which would lay out the new measure and its likely effect in practice, in particular how the new UK law would deviate from EU law. Such assessments could be reviewed by a parliamentary committee, which could then recommend whether or not the measure ought to require legislation. In other words, permission from the committee would be a condition precedent to an exercise of the power contained in the Henry VIII clause. We might further imagine that the pre-condition could function on something of a sliding scale, requiring legislation at one extremity and simply allowing for the possibility of a measure being disallowed at the other extremity.

Second, any amendments could also be accompanied by a devolution impact assessment. Again, a committee could be established to scrutinise proposals and could also be empowered to require consultation with the executive or legislative branch of a regional government before introducing delegated legislation to change EU law. A sliding scale could be envisaged here too (along the lines of the “duty to consult” Aboriginal peoples developed by the Supreme Court of Canada), with mere advice being required at one extremity and something like positive consent at the other. (Incidentally, even if such provisions were not included by Parliament in the “Great Repeal Bill”, it is not beyond the bounds of possibility that courts would develop analogous duties; lawyers mindful of the constitutional status of the European Communities Act 1972 and constitutional importance of the Scotland Acts might be minded to suggest such duties and courts might well be minded to recognise and enforce them; there is already, after all, an emergent common law doctrine of consultation).

Thirdly, Britain could conceivably use the design of the Henry VIII clause to strengthen its negotiating position with the EU. The more that the UK retains existing EU law, the stronger the UK’s argument will be for participation in the single market (which, as well as being economically sensible, would greatly reduce constitutional complications in Scotland and Northern Ireland). It is possible to imagine, in tandem with the parliamentary committee evoked above, the establishment of an independent agency which could monitor the UK’s compliance with EU law and suggest ways of minimising tariff and non-tariff barriers to trade with the EU where EU law and UK law began to diverge. Indeed, this could even be an agency jointly staffed by EU (which has many decades of experience of monitoring compliance with EU law) and UK representatives. Whether this would satisfy those who want to ‘take back control’ is another question, of course, but economic, constitutional and geopolitical reality might limit the degree of control that can be placed in the hands of Britons alone.

This content has been updated on October 19, 2016 at 09:14.