‘Henry VIII powers’ are needed to unpick EU legal knot, say pro-‘Brexit’ lawyers

31 January 2017 9:55am

20 June 2016. By Lewis Crofts.

Campaigners pressing for the UK to exit the European Union say leaving would give the country control over its own lawmaking destiny again, enabling a cull of unwanted legislation.

But more than 40 years of EU membership have stitched the legal fabrics of Westminster and Brussels together, meaning swift and sweeping changes could be needed to ensure legal certainty.

One way to make that happen would involve controversial “Henry VIII powers” that allow repeal without parliamentary scrutiny, according to a group of pro-“Brexit” lawyers.

If Britons vote during Thursday’s referendum to leave the bloc, it would trigger at least two years of talks with other EU countries over the future relationship between the UK and its divorced partners. Crucial to that process will be the UK’s statute book and its mix of national and European legislation.

All eyes will be on one keystone piece of legislation: the European Communities Act of 1972. This is the act that incorporates EU legislation into UK law. If Britain exits the union, this law would cease to apply.

Regulations vs. directives

This will throw a spotlight on two main groups of laws.

One is the body of EU legislation and treaty provisions that apply directly to the UK straight out of Brussels — “regulations” and “directly applicable” laws, as they’re known in Brussels jargon. These measures will simply lose their legal foundations in the UK.

Lawyers for Britain, a pro-“Brexit” group headed by barrister Martin Howe, says it would be “harmless or positively desirable” for many of those laws to lapse. But some of the provisions — such as legislation for authorizing medicines — would need a new text to fill the vacuum, the group says.

The second set of laws derive from looser EU “directives.” These won’t need immediate scrapping or amendment because they were introduced into the UK statute through a separate piece of UK-only legislation, which a post-“Brexit” government could amend at its leisure. This applies, for example, to laws on maternity leave and temporary workers.

For both categories, the government will have to draw up a list of priorities that need attention. With hundreds of measures at stake, lawmakers would have to concentrate on the most pressing areas for legal and commercial certainty.

“Such decisions would need to be taken on a case-by-case basis,” Lawyers for Britain has said. “It would not be possible to deal with them all with a single global rule.”

Henry VIII

A third category of legal provisions could provide a tool to untangle the legal mess that will ensue from a “Brexit,” according to Lawyers for Britain.

Section 2(2) of the European Communities Act contains a legal provision that allows a government to change or repeal a law without going through the usual parliamentary route. The mechanism is meant to allow a minister to make changes without touching the underlying law.

It is known as a “Henry VIII clause” after the Statute of Proclamations of 1539 which gave King Henry VIII power to legislate by proclamation. Such powers have drawn the criticism of senior UK judges, who decry their use to bypass the national Parliament.

Lawyers for Britain suggests extending this “existing well-oiled regulation-making power” so it could be used to handle the legislative fallout from a “Brexit.”

“Thus, these sweeping ‘Henry VIII’ powers, which have been used so effectively to implement the incoming tide of EU law, would be used rapidly to unravel EU law,” the group said.

Keeping the machinery

In short, the government could make the hundreds of decisions needed — to repeal, amend or roll over legislation — without going through Parliament.

Lawyers for Britain suggests writing such a new “Henry VIII” clause into whatever law replaces the European Communities Act 1972. This would, in effect, scrap the law but keep its legislative machinery in place.

Given that such clauses are often viewed as undemocratic, a post-“Brexit” government could enrage the public by resorting to them to undertake such a massive legislative exercise.

Alternatively, the government may feel it has the mandate to do just that after the referendum result, arguing that it will just be enacting the will of the people in the most efficient way possible.

In the meantime

Lawyers for Britain also suggests expanding the powers so that a government could shun EU measures during the two-year period leading up to a formal exit.

Such a provision would enable the government to ignore demands — or retaliatory measures — from Brussels while negotiating an exit.

Michael Gove, a leading Conservative politician in the Leave campaign, has already suggested swift legislation would be needed to restrict the reach of EU judges into British affairs during exit talks.

Lawyers for Britain also suggests new provisions to ensure the “acts of the EU institutions taking place after the withdrawal are accorded no legal recognition in the UK.”

If the UK votes on June 23 to leave the union, the message would be clear: Britons want to turn their back on the lawmaking of Brussels.

The irony is that it could take them a decade of lawmaking in Westminster to do so.

Brexit Special Report