Joelle
Grogan, Lecturer, Middlesex University
Perhaps
the most curious aspect of the Great
Repeal Bill is that ‘repeal’ is a misnomer: it will not repeal to a
significant extent at all. Rather, the ultimate Act will initially convert the
existing acquis
of EU law into British law at the point of formal separation from the EU,
following the completion of Brexit negotiations. This conversion will provide some
degree of certainty and continuity in the inevitable turmoil which will follow UK
withdrawal from the EU as the (at least) initial changes of domestic law will
be relatively minimal.
The
element of ‘repeal’ in the Great Repeal Bill will instead take the form of the
incorporation of a Henry
VIII clause. Named for the King who forced the passing of the Statute of
Proclamations 1539 empowering his decisions both to change and have the same
force as legislative acts, such a clause enables government to repeal or amend
primary legislation by means of a secondary act with limited or no further
parliamentary scrutiny.[1] For the complexity,
intricacy and sheer mass of EU law which forms part of UK law (for a cake analogy),
delegating decisions to secondary legislation makes pragmatic sense: does
parliament really need to be bogged down with issues such as labelling
regulations when there are more important debates to be had, trade deals to be
made, and economic and political crises to be resolved?
Beyond
the answer: yes, executive action during Brexit absolutely
should
be
monitored,-
the consequence of a Henry VIII clause in the Great Repeal Bill from a rights
perspective is that the question of whether rights based on EU norms are
compatible with post-Brexit Britain could be decided by a Minister, rather than
through Parliamentary debate and an Act of Parliament. In this post, I explore
the ghost of Henry VIII’s tyranny in his namesake legal clause, and outline
some of the possible impacts of a Great Repeal Act and a Henry VIII clause on
human and fundamental rights through the (somewhat shoe-horned) metaphor of the
fate King Henry’s six wives.
The
Ghost of Henry VIII
Henry
VIII clauses are intrinsically problematic for democratic governance: they levy
the convenience of a (relatively) quick amendment against the scrutiny of
parliamentary oversight. Immediately after Henry VIII’s death in 1547, the
Statute of Proclamations was repealed. No man, not even a king, should have
such power to make, amend or repeal primary legislation without Parliament. For
this reason, Henry VIII clauses have been subject to consistent criticism,
and an emphasis on their use only when absolutely necessary: the 1932
Donoughmore Committee Report on Henry VIII clauses (for which only nine could
be found in contemporary Acts) found that their use might only be when
‘demonstrably essential’ and must be justified by the Minister ‘to the hilt’. In
a 2010-11 Report, the House of Lords Constitution Committee found that
‘the
use of Henry VIII powers, while accepted in certain, limited circumstances,
remains a departure from constitutional principle… [which] should be
contemplated only where a full and clear explanation and justification are
provided.’[2]
Henry
VIII clauses are, however, not foreign to EU law in the UK. Article 2(2)
European Communities Act 1972 is itself a Henry VIII clause, allowing the
amending of UK law to comply with EU acts. The difference here, as has been pointed
out, is that EU acts go through multiple layers of legislative checks
before becoming law, and so not comparable in a situation post-Brexit.
The
issue is scale: it is now beyond an academic debate to consider the scope and breadth
of EU norms incorporated into British law. Simply enumerating some of the sweeping
areas of influence indicates only a shadow of the sheer scale of replacement,
repeal and revision ahead for Parliament: external trade; competition;
financial and banking services; telecommunications and data protection;
fisheries and agriculture; EU standards agencies; cooperation in matters of
security and the criminal law; and the environment. This also does not account
for rights based on EU law, including existing EU residents’, workers’ and
consumers’ rights, or even the right to be
forgotten. One of the Supreme Court Judges hearing the appeal on the Article
50 judgment, Lady Hale, raised the question
of whether a simple Act would be enough to authorise the government to give
notice, or whether the 1972 Act would comprehensively have to be replaced prior
to triggering Article 50. Though there was no elaboration in the speech, -
speculating, this could perhaps be a contrast between the rumour of a ‘short
three-line bill’ to authorise Brexit, and a more comprehensive bill clarifying
the Brexit process, transition arrangements and the post-Brexit legal
situation. However, the ECA 1972 cannot be repealed prior to the conclusion of
the withdrawal agreement, as EU law continues to be applicable within the UK
until that point. The (current) official stance is not such a comprehensive
replacement, ostensibly leaning instead towards a do-now, fix-later approach.
To shoe-horn
the metaphor, a Henry VIII clause in a Great Repeal Act will hand Ministers an
executioner’s axe to a range and breadth of law based on EU norms which is
still not fully understood or accounted for. This is by no means alarmist
argument, as widening the scope of power under a Henry VIII-type clause to
excise the influence of the EU has been advocated
by a barrister for the Leave Campaign. For
all the heralding of taking control
back to the UK Parliament, Henry VIII clauses, especially in the extended
scope necessary to cope with large scale repeal, will be less democratic,
create more legal uncertainty, and take the reins of control away from
Parliament and (potentially) rights away from individuals. Even as the controls
imposed on secondary legislation is an open issue, the latent threats to
cornerstones of British constitutionalism, parliamentary sovereignty and the
rule of law, are evident: the power to
amend primary legislation by Ministers acting independently of parliamentary
scrutiny and oversight runs counter to democracy, legal certainty, and the
ultimate supremacy of Parliament.
The ultimate
irony is that, for all the rhetoric of democracy and a return to parliamentary
sovereignty, the powers on which Government is relying to leave the EU are royal,
not democratic. Beyond the use of a Henry VIII clause, the question of who is permitted
to trigger Article 50 currently awaiting appeal before the Supreme Court, is a
fight between a royal prerogative and parliamentary sovereignty. In the current
approach to Brexit, there seems a concerning commonality with the character of Henry
VIII beyond his namesake clause in the use of unchecked executive power.
The
(Possible) Fates of Fundamental Rights
To
sketch out some of the possible consequences of the Great Repeal Bill and the
Henry VIII clause on rights, we can follow the rather grim framework provided
by Henry VIII’s wives. Their fates followed a (tragic) pattern: divorce,
beheaded, died, divorce, beheaded and survived. We should rightly be concerned
for the fates of fundamental rights protections post-Brexit in the divorce between
the UK and the EU which encompasses not only the likely biggest divorce
settlement in history, but will also see the division and separation of
significant rights and protections away from UK citizens and residents.
The
right to complain to, or seek a decision from, EU Institutions will be beheaded
by Brexit. For instance, post-Brexit, citizens and residents will not have the
opportunity to complain to the Commission for a breach of EU law or a violation
of their rights by UK authorities. Under the current schema, if their complaint
is upheld, the Commission can make a request to the UK that it respects the
rights of its citizens and residents, or even bring proceedings in the Court of
Justice for a violation of EU law. Referrals and the limited right of direct
access to the EU’s court system could be similarly cut off by Brexit, relying
on the domestic judicial system and common law and ECHR rights.
This
is linked to a significant death in the UK arising from Brexit: the rights
which arise from the Treaties, which cannot be restored or replicated in UK
law. These rights would include, for example, the rights of EU citizenship, and
free movement between Member States. Notably, however, it would mean the death
of the application of the EU Charter
of Fundamental Rights in the UK. The EU Charter, which can be relied upon
in national proceedings when the subject-matter of the litigation falls within
the scope of EU law has more normative clout than the comparable European Convention
on Human Rights, operative in the UK under the Human Rights Act 1998. This
means, for instance, that a violation of the EU Charter requires the
disapplication of the offending law, while a violation of the ECHR under
section 4 HRA 1998 can, at worst, only result in the issuing of a declaration
of incompatibility or a signal to Parliament that it should consider amending
the legislation.[3]
Serious
questions highlight the uncertainties which will arise as a consequence of the divorce
between the CJEU and the UK judicial systems. This will cause issues for the
interpretation for law which has been wholesale incorporated into UK law:
should UK courts follow subsequent cases regarding the interpretation of laws
by the Court of Justice? In situations where the similarity of the law is
required for reasons of trade (for example, product specifications), this would
follow. Should claimants then continue to plead EU case law before British
courts as persuasive precedent? And if so, how far, and in which areas? The
uncertainty which would arise from the contrary interpretation of a UK law
based on EU norms would also need resolution: should a subsequent judgment of
the Court of Justice take precedence over a UK ruling? These are only some of
the ‘known
unknowns’ of Brexit, no doubt there are far many more currently unaccounted
for.
Further,
there will be the possible beheading of rights based on EU law, which can be
replicated in UK law, but may be contentious in a new political regime: for
example, consumer and workers’ rights. The existence of a Henry VIII clause endangers
these rights and others, as they could be removed either accidentally or
intentionally by amendment of the primary act by executive decision. As
outlined above, there would be no recourse to EU institutions to challenge
this, or to the Courts if there is not explicit protection for these rights at
common law or in the ECHR.
After
such gruesome fates – one survivor will be the ECHR which, through the Human
Rights Act 1998, does not depend on the EU for its continued application in the
UK law. As I’ve hypothesised,
it’s possible – if unlikely - that we could witness a new relevance and force
with the ECHR to fill a gap in rights protection. The ECHR does not have equal normative
clout as directly effective EU rights, as evidenced by Benkharbouche &
Janah. Other survivors would be rights that have existed at common law,
such as the rights to personal security, liberty, and property. It’s possible
even, that there will be a new impetus for a ‘British
Bill of Rights’, however misplaced
that optimism may be.
Whatever
ultimately survives the Great Repeal Bill and a Henry VIII clause, it will be a
shadow of a larger, and likely uneulogized, death. The last seven decades have
been building a progressive narrative of strengthening and enhancing
fundamental rights across Europe and the world. Hopeful and aspirational
international declarations of human rights have led progressively towards the
adoption and implementation of more robust and justiciable instruments for the
protection of fundamental rights in the domestic sphere. Amid political,
social, legal and economic crisis, – this narrative is dying. In the current
climate, it is perhaps more than the ghost of Henry VIII that will haunt us.
Image
credit: Hans Holbein
[1] House of Lords Select Committee on the
Scrutiny of Delegated Powers, HL 57 1992-93, para 10.
[2] HL Constitution Committee 6th
Report, HL 51 2010-11, para 6.
[3] For example Benkharbouche
v Sudan, and Janah v Libya wherein the Court of Appeal held that the embassies of
Sudan and Libya could not rely on the State Immunity Act 1978 to bar employment
rights claims under the EU Working Time Directive, as it would violate Article
47 CFR which in turn required the disapplication of the Act. The Court found a
violation under Article 6 ECHR, but could only issue a declaration of
incompatibility.
No comments:
Post a Comment