November 30 2016

Rights on the chopping block

joelle-grogganEU law expert and Sticky Tricky Law founder Dr Joelle Grogan discusses Brexit, the Great ‘Misnomer’ Bill and Henry VIII’s ghost.

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. 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.’

Henry VIII - Photo by Hans Holbein

Henry VIII – Photo by Hans Holbein

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.

Graffiti during the run up to the EU referendum in the UK Photo by Sam (CC BY-SA 2.0)

Graffiti during the run up to the UK’s EU referendum -Photo by Sam (CC BY-SA 2.0)

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.

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.

This article originally appeared on EU Law Analysis.

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