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Martin Howe QC, the leading light of the “Lawyers for Britain” group, has made it clear that section 2(2) should not be repealed.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.
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