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21 July 2017

16: Great Repeal Bill – I’m Henry the Eighth, I am

The European Union (Withdrawal) Bill (the Bill) (formerly known as the Great Repeal Bill) was introduced to the House of Commons and given its First Reading (a formal stage, without debate) on Thursday 13 July 2017.

MPs will next consider the Bill at Second Reading (when the principle of the Bill is approved). This will be in the autumn, either between 5 and 14 September (before conference season) or between 9 October and 7 November (when Parliament resumes after conference). The earlier date may be more likely, there isn’t a lot of legislation before the Commons at the moment, and the Government would probably like to get through Second Reading before conference.

When MPs turn to consider the Bill’s provisions, they are likely to focus on the wide-ranging powers being granted to Government Ministers (and others) to make delegated legislation. This post considers the most controversial powers sought in the Bill, namely those which would authorise a Minister of the Crown, by means of regulations, to modify not only secondary legislation (ie other regulations, orders and rules), but also primary legislation (ie Acts of Parliament).

These powers are known (pejoratively) as ‘Henry VIII powers’, so named from the Statute of Proclamations 1539 which gave Henry VIII power to legislate by proclamation (which is not technically the same, but we’ll let that pass). The use of ‘Henry VIII powers’ is controversial in any Bill because an Act of Parliament can normally only be amended by another Act of Parliament. Parliament does not like to see its Acts modified by the Executive via regulations, and so it grants the Executive power to do so only in exceptional circumstances.

Another reason Henry VIII powers are controversial is that, before a Bill becomes law, it is subject to detailed scrutiny by MPs: there is a vote on the principle of the Bill at Second Reading, there is opportunity to table amendments, the Bill will pass through a Committee Stage at which the Bill’s individual provisions are considered in detail. Secondary legislation, by contrast, is not subject to detailed scrutiny – Parliament tends not to debate it, it cannot generally be amended, and by convention it is not voted down by the House of Lords except in very exceptional circumstances.

The Henry VIII powers granted by this Bill will be particularly controversial because of the wide purposes for which they could be exercised:

  • Clause 7(1) authorises a Minister of the Crown to make regulations to ‘prevent, remedy or mitigate (a) any failure of retained EU law to operate effectively or (b) any other deficiency in retained EU law, arising from the withdrawal of the United Kingdom from the EU’. Clause 7(2) lists certain matters which are included within ‘deficiency’ but that list is not exhaustive. Clause 7(5) provides that such regulations may provide for EU functions to be transferred to a new or existing UK public authority or ‘replaced, abolished or modified’;
  • Clause 8(1) authorises a Minister of the Crown to make regulations to ‘prevent or remedy any breach, arising from the withdrawal of the United Kingdom from the EU, of the international obligations of the United Kingdom’; and
  • Clause 9(1) authorises a Minister of the Crown to make regulations ‘as the Minister considered appropriate for the purpose of implementing the withdrawal agreement if the Minister considers that such provision should be in force on or before exit day’.

In each case, clauses 7(4), 8(2) and 9(2) provide expressly that ‘Regulations under this section may make any provision that could be made by an Act of Parliament (including modifying this Act).’ That would include modifying any existing Act of Parliament, not just other regulations or secondary legislation, and not just EU-derived law.

Clause 10 and Schedule 2, Parts 1 to 3 confer corresponding powers to those granted to Ministers under clauses 7(1), 8(1) and 9(1) to the devolved authorities (ie the Scottish Ministers, Welsh Ministers or NI Departments) either acting alone or jointly with a Minister of the Crown, including that they may be used (so far as consistent with that devolved administration’s legislative competence) to amend primary legislation (see Schedule 2, Part 1 para (3), Part 2 para (3) and Part 3 para (3)).

The Government is also seeking two broad ‘sweep-up’ powers:

  • Clause 17(1) grants a power to make ‘such provision as the Minister considers appropriate in consequence of this Act’, including modifying primary legislation passed in the current Session of Parliament (clauses 17(2) and (3)); and
  • Clause 17(5) grants a power to make ‘such transitional, transitory or saving provision as the Minister considers appropriate in connection with the coming into force of any provision of this Act or the appointment of exit day’.

The Bill does not state expressly that these powers authorise changes to Acts of Parliament (ie that they are Henry VIII powers), but the terms in which they are drafted would appear to make them so.

The s17 powers must be read in the context of Schedule 7, Part 3, para15 which provides, first, that s17(1) may be used to make regulations to modify anything that ‘continues to be, or forms part of, domestic law by virtue of … sections 2 to 6 or Schedule 1’ and, second, that s17(1) and (5) include the power to ‘make transitional, transitory or saving provision in connection with’ the repeal of any enactment contained in the European Communities Act 1972 (or any enactment repealed consequent on that repeal), or the withdrawal of the United Kingdom from the EU, which is ‘additional to that made by any provision of sections 2 to 6 or Schedule 1 or alters its effect in particular cases or descriptions of case.’

The Government’s justification for all these Henry VIII powers is set out in the Delegated Powers Memorandum, which was lodged with Parliament at the same time as the Bill. In general terms, the Government gives three reasons why these powers are necessary: time (the Government now has less than two years to get UK ready for exit); practicality (it could not all be done on the face of the Bill); and flexibility (the negotiations are ongoing, the Government can’t reveal its hand and, anyway, the outcome is unknown).

The Bill restricts the exercise of the Henry VIII powers in two important respects. First, ‘sunset’ clauses provide that regulations may only be made during a particular period: under clauses 7(7) and 8(4), within two years of exit day and, under clause 9(4), prior up to and including exit day. MPs may well query why, if the Government needs the Henry VIII powers in order to get the statute book ready for exit day (and if exit day itself is set by a Minister), it also needs its clause 7 and 8 powers to extend for two years after exit day.

Second, the regulations made under these powers (ie under clauses 7, 8 and 9) may only do certain things, eg impose or increase taxation; make retrospective provision; create a relevant criminal offence; amend, revoke or repeal the Human Rights Act – the list is slightly different for each clause, given their different purposes – if approved by both Houses of Parliament. Similar restrictions are imposed by Schedule 2 on the devolved authorities.

The Bill does not contain the ‘necessity test’ proposed by the House of Lords Select Committee on the Constitution, ie that Henry VIII powers be available only for changes that are ‘necessary’ to adapt EU law into domestic law or to implement the results of any agreement with the EU, nor does it include a requirement (as under the Human Rights Act 1998) that regulations must state on their face that they are compatible or intra vires with the purposes of the Bill. However, the Delegated Powers Memorandum states that:

‘The Government has decided that all explanatory memoranda accompanying statutory instruments made by Ministers of the Crown under powers in the Bill must, in addition to the usual requirements for the contents of an explanatory memorandum, also:

  • explain what any relevant EU law did before exit day;
  • explain what is being changed or done and why; and
  • include a statement that the minister considers that the instrument does no more than what is appropriate.’

It remains to be seen whether Opposition MPs might push for a statement on the Regulations themselves, rather than in the Explanatory Memoranda.

The Henry VIII provisions are likely to be the most controversial, but there are other matters which the Bill provides may be addressed by regulations or directions, ie:

  • Clause 14(1) – setting the date of ‘exit day’;
  • Clause 19(2) – allowing for different provisions of the Bill to become law on different days;
  • Schedule 1 – providing for a right of challenge to the validity of retained EU law;
  • Schedule 4, Parts 1 and 2 – enabling public authorities given new functions post-exit day to charge fees, prescribing the circumstances in which devolved authorities may legislate in that regard, and enabling changes to fees already charged;
  • Schedule 5, Part 5 – directing the Queen’s Printer re the printing of ‘EU retained law’; and
  • Schedule 5, Part 2, para 4 – requiring judicial notice to be taken of a relevant matter.

The Government is clearly aware that there will be a huge amount of secondary legislation to process under the powers it has sought: over 12,000 EU regulations and over 6,000 EU directives to transpose and ‘correct’, not to mention the existing UK legislation which requires consequential amendment. The SSExEU, David Davis, may get tired of singing, as he walks the corridors of Westminster …

‘I’m Henry the Eighth I am, Henry the Eighth I am I am, I got married to the widow next door, she’s been married seven times before’ (Herman’s Hermits, I’m Henry the 8th)
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