Notes from a Foreign Field: The EU Withdrawal Act 2018, Henry VIII Powers & The threat to Representative Democracy in England (Guest Post)

(This is a guest post by Preetika Mathur.)

Whilst the judgment of the Supreme Court in NCT Delhi v Union of India is undoubtedly a step forwards for representative parliamentary democracy and the separation of powers in India, England is facing grave threats to both. It seems that the internationally celebrated judgment of the UK Supreme Court in R (Miller) v Secretary of State for Exiting the European Union will not be enough to protect the UK Parliament’s status as the primary law making body vis a vis the executive Government. The EU Withdrawal Act 2018 (the primary piece of legislation designed to implement Brexit) effects a significant transfer of legislative powers from the British Parliament to the executive in a manner that disturbs the established constitutional relationship between the legislature and executive. This is through the use of Henry VIII powers. The Act relies heavily on Henry VIII powers to preserve legal continuity and legal certainty after Brexit.

The Issue:

Article 50 of the Lisbon Treaty governs withdrawal from the European Union. Article 50 provides that the EU Treaties which are the source of all EU laws and institutions shall cease to apply to the exiting State two years after it notifies the European Council of its intention to leave the EU. On the expiry of the two year period, EU laws simply cease to apply to the UK and the UK is no longer subject to the jurisdiction of the European Court of Justice. Article 50 was triggered on 29th March 2019, after Parliamentary approval. This means that the UK has until 29th March 2019 to agree the terms of its departure from the EU. On 29th March 2019, all existing EU laws will simply cease to apply to the UK and it will also no longer be subject to the jurisdiction of the European Court of Justice.

EU law radiates into almost every UK legislative and governmental sphere. To further complicate matters, the extent of its influence also varies from sphere to sphere. For example, in certain areas such as agriculture, fisheries, external trade and environmental regulation it is the dominant or determinative body of law. In other areas such as crime, social security and health it has a marginal impact. In addition, there are a variety of legal mechanisms which are deployed to make EU law have national effect – from Regulations which are immediately enforceable in domestic law to Directives which require national legislation to implement as well as soft law measures.

As a result of these factors, the relationship between EU law and national law is so complicated, interwoven and entangled that in almost every instance it is impossible to determine end of the national and the start of the European. It follows that the consequences of EU law simply ceasing to apply to the UK are likely to lead to a level of chaos and uncertaintanty that poses a serious threat to the Rule of Law. To deal with this problem, the Government has proposed that EU law that is in force before “exit day” should simply continue to remain in force after “exit day”. Indeed, it is difficult to think of any more obvious solution to the lacuna created when the two year period expires. However, the solution of retaining EU law as it existed before “exit day” is far from simple. This is because much of the retained legislation will be unworkable or simply nonsensical after the UK leaves the EU. For example if the law makes reference to EU procedures, EU guidelines, EU decision makers or EU institutions by which the UK is no longer bound and to which the UK no longer has access after “exit day”.

The Government’s Solution:

To deal with the problem of making retained EU law workable, the Government has proposed the widespread use of Henry VIII powers.

Henry VIII powers are powers of delegated legislation. These are conferred on the executive government through primary legislation. Henry VIII powers empower the executive government to amend or repeal existing primary legislation. Delegated legislation is not scrutinised by Parliament in the same way as primary legislation. The Government’s justification for reliance on Henry VIII powers is practical necessity. They take the position that given the tight timetables for departure from the EU and thousands of instances of potential unworkability that are likely to arise in retained EU law, it will simply be infeasible for Parliament to deal with every one itself.

Nevertheless, in spite of the logic of these practical arguments it is clear that the Act elevates powers intended to be exceptional into the norm. It is not the case that the Act merely allows formalities and technical matters to be resolved through the use of Henry VIII powers. Instead, the scope of the powers conferred is such as to enable sweeping substantive changes to policy and to the constitution without proper democratic scrutiny. This is clear from Clauses 8, 9 and 23 in the Act and the lack of corresponding safeguards.

Problems:

Once triggered clause 8 provides Ministers with the same legislative power as Parliament. Clause 8 (5) empowers Ministers to ‘make any provision that could be made by an Act of Parliament’. Since the reach of the powers is so broad, the circumstances in which such powers may be triggered ought to be strictly curtailed but this is not the case. Clause 8 provides for an exceptionally wide set of circumstances in which executive power to amend or repeal primary legislation may be triggered.

Clause 8 sets the following threshold for the triggering of Henry VIII powers:

“A Minister may by regulations make such provisions as the Minister considers appropriate to prevent, remedy or mitigate – (a) any failure of retained EU law to operate effectively, or (b) any other deficiency in retained EU law”.

Clause 8 makes the decision of when to exercise Henry VIII powers the subjective decision of the Minister. The level of subjective satisfaction required before the Minister can decide to use these powers is low. This is because a Minister is only required to consider it “appropriate” to use Henry VIII powers as opposed to “necessary”. The House of Lords Constitution Committee had previously recommended setting the threshold at “necessary” as opposed to “appropriate” in order to establish stricter internal constraints on the decision making of the executive. By setting the trigger at “appropriate” as opposed to “necessary”, resort to Henry VIII powers is not made a matter of last resort and there is nothing indicating that these powers should be used with extreme reserve or indeed even cautiously. This also enables the executive to decide to use these powers based on subjective policy preferences alone.

The drafting of Clause 8 to favour “appropriate” as opposed to “necessary” also has important consequences when it comes to judicial review of the exercise of a Henry VIII power by a Minister. The exercise of Henry VIII powers is judicially reviewable on the basis that the exercise of the power is ultra vires the parent act and outside of the scope of the power that was conferred by the parent act. Therefore, setting the threshold at “necessary” as opposed to “appropriate” would also have given the judiciary greater opportunity for stricter scrutiny of these powers through judicial review.

The executive discretion with respect to when Henry VIII powers may be used is also widened by the definition of ‘deficiency in EU law’ for the purposes of interpreting clause 8. Clause 8 (2) provides that the existence of a deficiency in EU law is also a matter for the subjective determination of the relevant Minister as opposed to being an objective standard.

Further Clause 8 (2) contains a list of situations that amount to a deficiency in EU law that are drafted so broadly that virtually any situation could be said to fall within this list. The first of the specified situations, Clause 8 (2) (a) illustrates this breadth. Clause 8 (2) (a) provides that:

Deficiencies in retained EU law are where the Minister considers that retained EU law – contains anything which has no practical application in relation to the United Kingdom or any part of it or is otherwise redundant or substantially redundant…”.

It follows from this that if a minister considers it appropriate to amend or repeal primary legislation on the basis that in their opinion the legislation is no longer of practical application they can do so. There is no further definition of “practical application” and this easily lets in the subjective policy preferences of the individual minister. For example, this would enable a minister who considers that work place safety or anti discrimination regulations no longer have practical application on the basis of their political ideology to amend or repeal such laws on the basis that they consider it appropriate to do so.

Further, the situations specified in Clause 8 (2) are not exhaustive because of Clause 8 (3). Clause 8 (3) further widens the net by providing that anything of a similar kind to that contained in clause 8 (2) but not actually listed in clause 8 (2) would also count as “a deficiency in retained EU law”. “Of a similar kind” is also not further defined and given the wide range of disparate situations included in Clause 8 (2) – the combined effects of Clause 8 (2) and Clause 8 (3) is to ensure that the amending or repealing of primary legislation is justifiable in almost every situation on the basis of ‘a deficiency in retained EU law’.

Clause 8 includes some restrictions on the delegated powers, such as the stipulations in Clause 8 (7) that the Henry VIII powers cannot be used to impose or increase taxation or fees; make retrospective provisions; create certain types of criminal offence; establish a public authority; amend, repeal or revoke the Human Rights Act 1998 or subordinate legislation made under it; or amend or repeal the Scotland Act 1998, the Government of Wales Act 2006, the Northern Ireland Act 1998.

Nevertheless, these restrictions do not protect the wide range of rights contained in domestic law which originate from EU law as opposed to from The European Convention of Human Rights through The Human Rights Act. For example, the majority of labour, anti discrimination, environmental, health and safety, social security and data privacy protections arise from EU law. This creates the potential for the removal of hard-won EU fundamental rights protections by the executive through the backdoor.

In the Third Report of the Delegated Powers and Regulatory Reform Committee of the House of Lords from its 2017 – 2019 session, the Committee has given numerous examples of instances where Henry VIII powers could be used to undermine EU fundamental rights protections through the backdoor. The Committee gives the example of the EU Data Protection Regulation which will become retained EU law. Referring to Clause 7 of the Bill, now Clause 8 of the final Act, it states:

Clause 7 allows Ministers to amend it if they think it “appropriate” to remedy any failure of the law to operate effectively arising from the UK’s withdrawal from the EU. Under the Regulation, individuals have rights of access to personal data subject to exceptions such as national security, defence and public security. Ministers might take the view that, once we no longer have to recognise the supremacy of EU law when we have left the EU, the exceptions to data access rights do not operate effectively as regards EU citizens resident in this country and should be widened under clause 7 to prevent them, say, from having a right of access to immigration information held about them by the Home Office”.

Clause 9 of the Act is also similarly broad both with respect to the circumstances in which the powers to amend, modify or repeal primary legislation may be triggered and the scope of the powers once triggered. Clause 9 allows the executive to amend, repeal or modify primary legislation if the Minister considers it to be appropriate to implement the withdrawal agreement. Further, the Act also confers a range of other Henry VIII powers on ministers i.e. through Clause 23 which empowers Ministers to use Henry VIII powers to make “such provisions as the minister considers appropriate in consequence of the Act”. Clause 9 also contains similar restrictions to Clause 8 on the circumstances when the Henry VIII powers may not be exercised – and are subject to the same fundamental rights concerns.

Lack of Safeguards:

Given the sweeping nature of the transfer of legislative powers to the executive it is necessary that the Act should contain important safeguards to mitigate for the breadth of the powers that are conferred. Sadly, this is not the case either.

The Act includes sunset clauses that provide a time limit on the use of the Henry VIII powers. Clause 8 (8) sets a two year time limit after “exit day” on the Henry VIII powers to deal with deficiencies in retained EU law. Clause 9 (4) also provides that Henry VIII powers cannot be used to implement the withdrawal agreement after exit day. Nevertheless, the time period in which the powers may be exercised is still sufficient for widespread use of the powers that are conferred. The government has indicated that it envisages reliance on these powers thousands of times in the run up to and immediately following “exit day”.

Leading NGOs in the UK such as LIBERTY had previously proposed that the Act should contain a “non-retrogression clause” that would state that Henry VIII powers could not be used to worsen human rights protections. This was not included in the final Act. Similarly, Tarunabh Khaitan had previously proposed that the Act should contain a clause expressly stating that amendments to the constitutional scheme could not be carried out through the use of Henry VIII powers. This was also not included in the final Act.

The need for a “non retrogression” or a “no constitutional amendment” clause is all the more pressing in the context of English Constitutional law because of the paucity of implied limitations on the use of such powers. On the contrary, given the supremacy of Parliament in English constitutional law which entails that Parliament can make or unmake any law – the conferral on Ministers of the same power as Parliament can be said to expressly indicate the lack of limitations on these powers. Clause 8 (5) says that regulations made through use of Henry VIII powers may make any provision that may be made by an Act of Parliament.

Tarunabh Khaitan has previously suggested that the exercise of these powers may be subject to the implied limitation of the principle of legality. As Lord Pannick argued in his submissions before the UK Supreme Court in Miller, the common law principle of legality requires Parliament to expressly provide for any abrogation of rights considered fundamental at common law. However, for our purposes there are at least four problems with this argument. Firstly, it can be argued that EU law derived rights are no longer fundamental at common law after Parliament has expressly approved Brexit and after the repeal of The European Communities Act 1972. It was The European Communities Act 1972 that made EU fundamental rights part of domestic law. Secondly, it can in any case be argued that since Parliament has expressly conferred such broad Henry VIII powers on ministers through primary legislation that it envisages these powers could be used to amend or repeal rights protections. Thirdly, the use of the common law principle of legality as a sword remains contentious. There is insufficient precedent to suggest that the Courts would take such an approach when reviewing the exercise of Henry VIII powers. On the contrary, in the case of R (Public Law Project) v Sectrary of State for Justice, the Supreme Court explained that when it comes to review of Henry VIII powers it would consider the narrower question of whether the exercise of a Henry VII power exceeds the statutory purpose for that power that was set out in the parent act that confers the power. Fourthly, when it comes to guiding the actions of ministers who are using such powers – an explicit non retrogression clause or an explicit no constitutional amendment clause contained within the statute itself would have had greater action guiding force than the common law principle of legality. For all these reasons the principle of legality is of itself not sufficient to do the work of an explicit “non retrogression clause” or a “no constitutional amendments” clause.

The Government has also failed to propose any bespoke and adequate system of scrutiny over the powers conferred. It proposes mainly to rely on pre-existing processes, which include ‘Affirmative Resolution’ and ‘Negative Resolution’ processes. The former requires Parliamentary approval of Government draft changes; in the latter the onus is on Parliament to veto Government drafts. Nevertheless, even in the former, the proposals are not subject to the same kinds of debate and discussion as primary legislation. There is a risk of these procedures being merely rubber stamps.

Constitutional Impact:

It is clear that delegated legislation powers sit uncomfortably with principles of settled common law.

From as early as 1610, the English judiciary has sought to curtail the use of Henry VIII powers. In The Case of Proclamations, Sir Edward Coke CJ held that:

No man not even a king, should have such power to make, amend or repeal primary legislation without Parliament”.

In the 1920s Lord Chief Justice Hewart published a book titled ‘The New Despotism’, in which Henry VIII powers were described as arbitrary bureaucratic powers.

The Donoughmore Committee had expressed serious concerns about the increasing resort to Henry VIII powers in its 1932 report, The Report of the Committee on Ministers’ Powers. The Committee stated that in spite of the quantatively insignificant number of times these were relied upon over the period studied by the Committee these powers were a cause for concern. The frequency of reliance on Henry VIII powers envisaged by The EU Withdrawal Act is clearly far greater than anything that could be considered legitimate by The Donoughmore Committee report.

In McKiernon v Secretary of State for Social Security, Lord Donaldson emphasised that Henry VIII powers should be a highly restricted exceptional measure and not the norm. He stated:

“Whether subject to the negative or affirmative resolution procedure, [subordinate legislation] is subject to much briefer, if any, examination by Parliament and cannot be amended. The duty of the courts being to give effect to the will of Parliament, it is, in my judgment, legitimate to take account of the fact that a delegation to the Executive of power to modify primary legislation must be an exceptional course and that, if there is any doubt about the scope of the power conferred upon the Executive or upon whether it has been exercised, it should be resolved by a restrictive approach.’

The House of Lords Constitution Committee in its 6th report of Session 2010 – 11 on ‘Public Bodies Bill [HL]’, has expressed strong criticism on widespread use of Henry VIII powers. At paragraph 4 it has stated that Henry VIII powers “remain a constitutional oddity” and that “they are pushing at the boundaries of constitutional principle that only Parliament may amend or repeal primary legislation”. At paragraph 6, the Committee goes on to say that: “The use of Henry VIII powers whilst accepted in certain limited circumstances remains a departure from constitutional principle. Departures from constitutional principle should be contemplated only where a full and clear explanation and justification is provided’. ‘a constitutional oddity’ and ‘pushing at the boundaries of the Constitutional principle that only Parliament may amend or repeal primary legislation’.

The practical benefits of the delegated legislation powers conferred come at immense cost to the constitutional settlement. Representative parliamentary democracy became entrenched in the English Constitution through The 1688 Bill of Rights and has been sacrosanct ever since. By making exceptional powers the norm the soon to be EU (Withdrawal) Act undermines representative parliamentary democracy itself. The erosion of Parliamentary power is all the more problematic given that it is driven by a Government which failed to win a majority in the Commons in support of its legislative agenda for Brexit. Even more so because of the undemocratic nature of the referendum which led to Brexit in the first place. The referendum failed to take into account that the British constitutional settlement is founded on representative Parliamentary democracy. The EU Withdawal Act 2018 has same fundamental misassumptions at its core.

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