Ghost of Henry VIII haunts Repeal Bill, lawyers warn

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Jul 14, 2017
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The bill would allow Theresa May and her ministers to make secondary legislation without full parliamentary scrutiny

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Arguably the Tudor era’s most famous monarch continued to loom over the UK’s withdrawal from the EU, with lawyers predicting that Henry VIII powers will be the most controversial element of the Repeal Bill.

The bill was published yesterday and campaigners warned MPs not to allow Brexit to destroy the established rights of British citizens. In a joint statement, Liberty and the UK branch of Amnesty International said “the vote to leave the European Union was not a mandate for ministers to take rights away from people in the UK. Paying lip service to protecting our rights doesn’t count for anything if those protections are not in the legislation – in black and white”.

Other lawyers predicted that while the bill’s provisions were likely to be straightforward, they would still be controversial. “The most controversial element,” predicted Robert Bell, a partner at the London office of the US law firm Bryan Cave, would be “those powers allowing ministers to fast track the implementation of certain EU laws into domestic law through regulations without parliamentary debate, sometimes referred to as Henry VIII powers.”

Bar leaders also warned of the dangers of removing MPs from the scrutiny process. Andrew Langdon, QC, the chairman of the Bar Council said: “Where ministers are given the power to make secondary legislation, this should be limited to technical amendments and should not be used to make substantive changes in policy, which should be made only by primary legislation, subject to full parliamentary scrutiny.”

Not all lawyers agreed that the essence of the bill would be so simple, not least because of the contentious issue of the European Court of Justice (ECJ) and the relevance of past judgments.

Chris Dryland, a litigation lawyer at Pinsent Masons, said: “The treatment of ECJ rulings outlined in the Bill adds a layer of complexity onto an already confusing and opaque issue for those currently pursuing EU law based disputes.”

He said that once the UK has left the EU, it “may still follow EU case law but through choice rather than compulsion. This may well give rise to inconsistencies as the fundamentals of UK law could be applied in very different ways. Those embroiled in disputes will be exposed to potentially loose interpretation of law with the goal posts constantly shifting on a case by case basis. Such a move creates instability in the legal system and across UK courts”.

Problems over devolved powers within the UK also lay ahead, legal commentators said. David Mundy, a partner at London law firm Bircham Dyson Bell, said that the bill would have to “deal with the effect of the repatriation of powers in various areas to the devolved governments of Scotland, Wales and Northern Ireland following Brexit and the mechanisms by which those administrations will assume responsibility for policy areas which will fall under their authority. The implications for the constitution and the balance of powers are profound”.

Mundy also pointed out the ticking Brexit clock: “The Bill needs to tread a tightrope of providing speed and flexibility in capturing and modifying EU law that will continue to have effect as UK law following Brexit day, with a democratically legitimate and accountable means of passing delegated legislation to achieve and modify it.”

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