Repeal in haste, repent at leisure

Published 29.09.2017 21:13
Updated 29.09.2017 21:15
emEPA Photo/em
EPA Photo

The Great Repeal Bill was published this July of this year in the U.K. with the aim to help the British government steer through the stormy waters of Brexit

Brexit looms and the exit date for the U.K. leaving Europe is early in 2019. However, it is not as simple as the U.K. simply walking away from the EU; what awaits the U.K. is a fine balancing act of gracefully extricating itself from a complicated compilation of laws and regulations without leaving a void behind. EU laws have been in force in the U.K. since the 1972 European Communities Act; it was this act that ensured EU law would have instant effect in the U.K. There are fears that a legal "black hole" will appear after Brexit becomes real. Standing EU laws will no longer be effective, and there will be no regulations to replace them.

With the introduction of the 1972 European Communities Act, European Union law became automatically binding. If there was a conflict with existing British law, the EU law would take precedence.So, after 45 years, all the existing EU laws in the British system must be converted into British law or removed altogether. This is no ea

sy task, as it is estimated that there are more than 12,000 such EU laws in force in the U.K.

This is the purpose of the Great Repeal Bill, or as it is officially titled the European Union (Withdrawal) Bill. With the passing of the bill the European Court of Justice will no longer have jurisdiction in the U.K.

The controversial aspect of the European Union (Withdrawal) Bill is what is known as the "Henry VIII clauses." The clauses authorize ministers and bureaucrats to trawl through the thousands of EU laws, treaties and directives (or the EU legislative soup) and take out those laws they like, changing those that they see fit to change, and throwing out those that they deem irrelevant or unworkable - all without parliamentary review.This means that ministers and bureaucrats will be deciding which laws are needed to regulate the country. As a country with no one written constitution, such a practice could pose a grave threat to Britain's rule of law.

The Henry VIII clauses are named after a Statute of Proclamations that was promulgated in 1539, during the reign of Henry VIII. This statute gave any decision or command made by King Henry VIII the same legal status as parliamentary legislation; these royal commands were not referred to the Parliament. It is this very Statute of Proclamations that made it possible for the headstrong king to divorce, execute and marry his large number of wives.

And it is these very Henry VIII clauses that will allow old laws, previously scrutinized and passed by parliament to be made null and void. Any existing law can by changed by the prime minister, without full approval from parliament. The House of Lords, a crucial institution for examining and debating the finer aspects of the laws, will be circumvented. Other governments have added Henry VIII clauses to legislation to allow for its future repeal or amendment without parliamentary involvement.

There is some sense in invoking the Henry VIII clause for the European Union (Withdrawal) Bill. There is a very real fear that the British parliament will become bogged down in discussing regulations on packaging regulations or other such minutiae.

There is no question that sometimes parliament can take a very long time to make decisions on law. It is for this reason that when a state of emergency is declared, as in Turkey or France, or many other countries, today, laws can be introduced without parliamentary scrutiny. But the Henry VIII clauses pose a serious challenge to democratic governance.

Leaving the EU is not an emergency. There is a time schedule, talks and planning involved. None of these are aspects that can be found in a true emergency. To allow for such a vast review of legislation with no involvement by parliament and with no legal recourse, seems to be undermining the great British tradition. Indeed, the Statute of Proclamations was repealed immediately after Henry VIII's death. It was thought that the power to make, amend or repeal laws should not be wielded by any one individual, be they a king or Theresa May. The 1932 Donoughmore Committee Report on the Henry VIII clauses stated that it should be used only when "demonstrably essential" and that it should be justified by the minister "to the hilt." Although "to the hilt" is not a measurable unit or even a concrete idea, the concern that the Henry VIII clauses might be abused is clear. In 2011, the House of Lords Constitution Committee stated that:

"[T]he use of Henry VIII powers, while accepted in certain, limited circumstances, remains a departure from constitutional principle."

There are those who have stated that giving the power to amend primary legislation to ministers or bureaucrats without parliamentary scrutiny or oversight is in contravention of the principle that ultimate supremacy lies with parliament and with democracy itself. The very fact that the Henry VIII clauses are based on royal prerogative rather than democratic tradition has upset many.

Keir Starmer, Labour's Brexit spokesman, said that with such sweeping powers as are set out one should expect "rigorous safeguards," unfortunately, he says "none are to be found."

There are serious divisions within the parties on the future of the European Union (Withdrawal) Bill. Many conservative members of parliament are not pleased with the reintroduction of Henry VIII clauses, concerned by the wide-ranging powers that will be granted. On the other side of parliament, for the second reading of the bill Labour put a three-line whip in place to vote against the legislation, due to fears that rights and rules will no longer be protected after the U.K. leaves the EU. The Liberal Democrats, although not an overwhelming force to be reckoned with, warned: "If the government try any wheeze or trick to force through changes to vital protections, from workers' rights to the environment, they are playing with fire."

Despite these worries, two weeks ago, the second reading of the bill revealed no rebellion in the Conservative Party and seven Labour members of parliament voted in favor, despite the three-line whip, allowing the second reading to pass with a majority of 36 votes.

The next stage will be when a committee of the entire House will be convened to allow members of parliament to debate the bill. The date for this has yet to be announced.

Below is a quote from Clive Lewis, appearing in the Independent in March of this year.

"Last month I resigned from the opposition frontbench. I did that not because I wanted to reverse the referendum result, but because in a democratic country, parliament makes laws and parliament holds the government to account. By allowing the government to trigger Article 50 [i.e. Henry VIII clause] without any expectations, any guidance or any effective veto over what they decide, we have allowed them carte blanche over a huge range of policies that will affect every individual in this country.

"This is dangerous. At times of constitutional uncertainty and social division, parliament needs a greater, not a lesser role, in defining our future.

"The Lords Constitution Committee said parliament should consider imposing 'sunset clauses' to ensure EU laws can be amended 'rather than being left to drift into permanence.'"

While the desire for a clean and easy exit from the EU is understandable, there are serious questions about the function of law and democracy here. To hand individuals the ability to change laws, to introduce laws and to annul laws without parliamentary scrutiny in a time of peace, when there is no existing state of emergency, when there is no enemy within or without, is truly worrying. The impetus for suspending parliamentary scrutiny on some laws should only be an internal or external threat. Such acts, such measures can only be dictated by situations that require urgent actions; leaving the EU is something that is programmed and something that will take time. Surely the process of reconstructing the legal landscape of Britain, which has changed in many ways over the past 40 years, should also be something that not only is given sufficient time, but also sufficient debate.

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