Henry VIII and the perils of Brexit

by George Peretz QC | 09.05.2016

A key claim by Brexit advocates is that the EU has destroyed Parliamentary sovereignty.  But if they are serious about upholding Parliament’s powers, they should not vote to quit Europe.

The Leave campaign directs its fire at section 2 of the European Communities Act 1972.  Section 2(1) says that EU law has effect in the UK and must be followed by the courts; section 2(2) gives wide powers to ministers to amend UK law to make it consistent with the requirements of EU law.

Brexiteers bristle in particular at the second subsection, arguing that it is a “Henry VIII” provision: that is to say, it allows ministers to make wide-ranging changes to our law without having to persuade Parliament to pass another act.

One might therefore have thought that repealing the section in question would be a high priority for the Brexit camp. But, interestingly, Martin Howe QC, the leading light of the “Lawyers for Britain” group, has made it clear that section 2(2) should not be repealed.  Instead, it should be “extended” to give ministers more power to amend UK law without the need to get Parliament to approve a new bill.

Why would that be necessary?  The problem is that, before Brexit took effect, something would need to be done about all the areas where EU law forms the legal basis for UK regulations.

Brexiteers usually admit that many EU rules are sensible. Indeed, when pressed, many struggle to name EU rules that they actually object to.  So we would want to keep them after we left the EU.

Unfortunately, that would not be a simple task.  You cannot just pass a short act saying the old rules remain in force, because they were drafted on the assumption that we are a member of the EU.  So, for example, EU regulations on agriculture frequently refer to the powers of the European Commission. These would have to be reviewed and replaced before Brexit took effect.  Much of this is technical stuff – important to those affected and requiring political judgments, but not of fundamental policy importance.  Some of it, though, will require important decisions on matters such as environmental protection and workers’ and consumers’ rights.

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    So in the brief period before Brexit went into effect, a vast amount of work would have to be done to establish whether rules needed amending in areas such as financial services, pharmaceuticals, employment, agriculture, product safety and so on. Martin Howe accepts that this task “would be a substantial exercise and would have to be carried out rapidly”.  Daniel Greenberg, a former Parliamentary draftsman, describes it as “the largest scale legislation and policy exercise that has ever been carried out”.

    There is no way in which Parliament could cope with the deluge of legislation. It would have to give power to ministers to make new laws in all these fields by statutory instrument. Whatever one thinks of current ministers, this proposal raises serious issues.

    EU legislation undergoes far more scrutiny (by member states and the European Parliament) than do UK statutory instruments.  Further, owing to recent staff reductions, Whitehall does not have the capacity to take on this task.  To review and redraft swathes of legislation in short order, a lot of lawyers would thus have to be recruited – and, as everyone knows, lawyers aren’t cheap.

    Martin Howe’s proposal for a supercharged Henry VIII clause therefore reflects a ghastly reality of Brexit: new teams of civil servants and lawyers would be engaged in plugging the gaps caused by our departure from the EU.  Ministers would have to be granted powers to push through major changes without proper Parliamentary scrutiny. Their time would be taken up with complex questions of little interest to anyone but the businesses affected.

    A vote for Brexit is, in truth, a vote for the UK government’s energies to be consumed for a decade by the legal and policy implications of leaving the EU, at the expense of matters that are more pressing to voters. Henry VIII would have a chortle.

    Edited by Alan Wheatley

    5 Responses to “Henry VIII and the perils of Brexit”

    • Expunging all mention of the EU from our statute books and pretending we had never been a member would require a great deal of work which would cost a lot of actual money to pay skilled people to do it and an opportunity loss from using them to expunge the EU instead of doing something useful. I personally would be very fascinated to see how Parliament handles it and very eager to read all the technical details and see what Bill Cash makes of them.

      Nonetheless, if you are a BREXITeer , you must have made an estimate of whether the money and time are worth spending. It does not matter if it is £1 or £1 bn, there is no point in spending it unless you are preparing the ground for better ways to recover it and more. Where can I find the list of things that I can do if we leave the EU but which I cannot do now? Could I control my borders? What would I do with all the EU nationals that are already here?

      Supposing that I could control my borders, an isolationist approach might not foster investment in global trade conducted from within my territory. Atomised, and long, supply chains require movement of people, goods and services across borders. Better that it were easy than hard. What’s the point of trying to assemble a car if you have pay a 10% tariff on importing the ball bearings in a wheel hub? Or if you cannot bring in a design engineer to economise the fuel system with a new piston crown swirl pattern?

      We may also like to consider that the House of Lords is reviewing its privileges on Statutory Instruments following the cut in welfare payments to disabled people as it is no longer quite so clear what constitutes a money bill. Log-jammed ping pong might not make tidying up the law any easier!!

    • How very ironic that the QUITTERS are quoting “Henry VIII” as an example of what they would have to do if they win. They cannot give us any real facts nor figures of what would happen in this country. Nothing on what happens to the electricity from the French Grid, nor the gas from the European pipe-lines, nothing on the disruption to food imports from the continent.
      Henry VIII, with the Disolution of the Monastries murdered a great many people as alms houses, orphanages, hospitals and work centres were closed down. Henry VIII destroyed the English wine industry, (that did not recover until 1976), reduced food production in England and Wales to the point where many more poor people died.
      Henry VIII is a great example for the QUITTERS to quote. An obsessed man who cared not one jot for the consequences of an action, just so long as his will was carried out. Farage the Third? Pronounce Third with an Irish action!! (”)

    • This article, in pointing out quite how far the EU permeates our laws (if true), just reinforces the case for leaving. The author is admitting that vast swathes of our law are outside our, or any, democratic process to amend or repeal (unless we leave). If the British electorate would like a change to any of these laws, there is absolutely nothing we can do. The only institution of the EU we vote for is the Parliament, and this has no power to amend or repeal laws.

      The issue is not whether we would have most of the laws and regulations anyway. Perhaps we would. It is how we exercise our democratic rights where we want a change.

      • SCOXIT had the same problem in September 2014. They would have been obliged to repatriate all the functions carried on centrally by the whole UK and bear the cost of them as well as expunge all reference to the Union from their laws, bring them into a distinct Scottish legal system and put them under the full control of a democratic Scotland. That would have been fine. This is what SCOXIT costs and this is how we intend to get a return on investing it. Unfortunately, the SCOXITeers did not have a plan to make use of the SCOXIT to improve Scotland, nor defend it, and they lost.

        BREXITeers are in the same position. Where is the list of advantages I can gain in return for the costs of repatriating all the functions currently carried on by the EU on our behalf and expunging all reference to the EU from our laws? It is nice to be sovereign, but not if it rains and you don’t have an umbrella as Alex Salmond discovered to his cost. With sovereignty, as with so much in life, whilst the amount you have matters, it’s mainly what you do with it that counts.

        • Julian is right in a way. And it’s certainly an irony. But the analysis is slightly superficial in my view.

          I absolutely agree with the author that this is a mess and that the process of legally fixing things if we go through with Brexit will be costly and undemocratic.

          But in reality it doesn’t actually mean that on a lot of really important contentious issues we don’t have high levels of sovereignty.

          These laws matter but, like the author says, a lot of them are quite niche.

          The stuff that keeps lawyers and their clients awake at night – whether it’s legislation- or precedent-based is predominantly British in origin.

          I speak with moderate authority on this. I’m not a lawyer and have no legal qualifications but I worked for a legal publisher for over seven years and spoke to and interviewed countless barristers and solicitors. We had loads of EU that we tried to flog them but it was an uphill struggle. By and large, all they were interested in was the British stuff.

          That isn’t to say that a great number of our laws aren’t derived in Europe. But of those that are the bread and butter of our courts, most are British.

          Notable exceptions relate to employment, and remainers were upfront about this and positive about it on their campaigning.