Henry VIII and the Great ‘Control and Paste’ Repeal Bill

It isn’t going to be as simple as copying and pasting something on a computer, but the U.K. government’s Great Repeal Bill has been dubbed the ‘Control and Paste’ Bill, because that is what it seeks initially to do: take a snapshot of every piece of EU legislation and paste it into English law. Without it, or something like it, Britain would fall into a legal limbo on Brexit day as existing laws and regulations—some of which Britain has been operating under for some forty years and were never intended to be done away with—would cease to apply. Prime Minister Theresa May’s solution is to copy and paste it all into English law and then sort it out later. Sort of.

But how did Henry VIII get in there?

Henry VIII is a reference to the intention of the bill to use parliamentary procedures that date back to the 16th century in order to expedite processing, terminating, and/or dropping some of the legislation transposed in the Repeal Bill. In 1539, King Henry VIII published a Statute of Proclamations, which gave his decisions and commands the same legal status as legislative acts passed by Parliament. Since then, governments have on very rare occasions used “Henry VIII clauses” to repeal or amend legislation by what is known as a “secondary act.” This allows the government to act with little or no Parliamentary scrutiny. These are similar to the Executive Orders signed by President Trump, except that Henry VIII had more wives.

There are at present nearly 20,000 EU legislative acts in force. These are mainly directives, regulations, decisions, and international agreements, but they include a range of other instruments. Of these, around 5,000 EU regulations are directly applicable in all EU Member States.
House of Commons Library

“Don’t worry, we’ll only invoke Henry VIII where it is mechanical,” reassured the government.

The Institute of Directors was generally confident. “We have to avoid a legal vacuum where no one knows what rules and regulations they should be following,” said Allie Renison, IoD’s Head of EU and Trade Policy. “Confirming that nothing will change on the day that we leave the EU helps to give companies certainty.” Such a position was echoed by the Association of British Insurers, the British Bankers Association, and the Bar Council. However, Renison indicated that sweeping automatic changes to legislation after Brexit might not be the most comforting expectation. “After we have left and the new relationship becomes clear, we will of course want Ministers to look at whether it makes sense for us to keep EU-inspired laws.”

Legislators were even less reassured.

When the bill was presented to Parliament on 30 March, Keir Starmer, Brexit spokesman for the Labour Party, told MPS that given the “sweeping” nature of the powers contained in the proposed bill, one might expect to see “rigorous safeguards” but that “none are to be found.” Even more significantly, so sweeping are the powers abrogated to itself by the government that the House of Lords Select Committee on the Constitution made an unprecedented early review of the bill to make sure that it was constitutional. Its findings are discussed below.

The European Communities Act 1972 (ECA) is the primary legislative vehicle for the United Kingdom to give domestic effect to EU law. EU law is found in a number of different places and in a number of different forms in the United Kingdom. Some is found in existing U.K. primary or secondary legislation. Some elements of EU law are directly effective in the United Kingdom via the ECA but are not found at all in the U.K.’s statute book. Other elements consist of judgments made by the Court of Justice of the European Union (CJEU) or regulatory rulings by EU regulators, none of which is embodied in law at all.

THREE MAIN STRANDS

The Great Repeal Bill will put the U.K. back in control of its laws; maximise certainty for businesses, workers, investors and consumers across the whole of the U.K. as we leave the EU; and ensure accountability for the powers contained in the Bill.
To achieve this, the Great Repeal Bill will do three main things:
First, it will repeal the ECA and return power to U.K. institutions.
Second, subject to the detail of the proposals set out in this White Paper, the Bill will convert EU law as it stands at the moment of exit into U.K. law before we leave the EU. This allows businesses to continue operating knowing the rules have not changed significantly overnight, and provides fairness to individuals, whose rights and obligations will not be subject to sudden change. It also ensures that it will be up to the U.K. Parliament (and, where appropriate, the devolved legislatures) to amend, repeal or improve any piece of EU law (once it has been brought into U.K. law) at the appropriate time once we have left the EU.
Finally, the Bill will create powers to make secondary legislation. This will enable corrections to be made to the laws that would otherwise no longer operate appropriately once we have left the EU, so that our legal system continues to function correctly outside the EU, and will also enable domestic law once we have left the EU to reflect the content of any withdrawal agreement under Article 50.
Source: Great Repeal Bill white paper

Making all this fit the U.K.’s circumstances following Brexit is complicated not just by the immensity of the task but by the timing involved. Some of it cannot be decided until negotiations have an outcome but will still need to be amended before Brexit day itself, sometimes in minor ways, removing references to EU institutions and sometimes significantly, where an EU regulatory regime needs to be replaced with an equivalent U.K. regime.

EU law takes two forms. Some is “directly effective,” which means it applies regardless of whether it has been implemented on a national level. Some is based on directives, which require national governments to adjust their domestic legal system to achieve the results required in the directive. Unfortunately, repealing the ECA will invalidate both these kinds of law, because even those actually implemented at the national level are only in force because the ECA authorizes the implementation of such secondary legislation.

A third set of EU law has been enacted via primary legislation in the United Kingdom. Notable examples include the Equality Act 2010 and the Consumer Rights Act 2015. Laws such as this will be preserved, though, unsettlingly, the Great Repeal Bill also allows the government to change these as well.

Finally, while Brexit will bring to an end the jurisdiction of the CJEU in the United Kingdom, the government has committed to retain all its interpretations of existing EU law—that which will be transposed by the bill—until Brexit day. For example, the White Paper on the bill notes that CJEU case law governs the calculation of holiday pay entitlements for U.K. workers. The bill would carry across that case law in order to create uncertainty for workers and employers. Similarly, CJEU case law has set what is and is not subject to VAT over the last forty years, and this case law will be retained in the U.K.’s own legal system in order to retain certainties about the application of VAT.

As the House of Lords select committee understands it, the Great Repeal Bill is intended to facilitate the “mechanical act of converting EU law into U.K. law,” while “the discretionary process of amending EU law to implement new policies in areas that previously lay within the EU’s competence … should be achieved through normal parliamentary processes.” On the other hand, the government has already stated that it will “introduce primary legislation to make substantive changes to certain areas currently covered by EU law, including immigration and customs law,” without waiting for the Great Repeal Bill. According to the White Paper, the Bill also appears to guarantee workers’ rights and equalities, consumer protection, and environmental protection.

The Secretary of State for Exiting the European Union, David Davis told parliament that: “Delivering a smooth, mutually beneficial exit, while avoiding a disruptive cliff-edge, will be the key. A never-ending transitional status is emphatically not what we seek, but a phased process of implementation for new arrangements ….” Unfortunately, witnesses to the committee say that the government’s expectation of a smooth exit is over-optimistic.

The process is summed up succinctly by the committee as: “First, it will be necessary to identify which aspects of EU law can be straightforwardly domesticated; which aspects would make no sense if domesticated; and which aspects need to be amended prior to Brexit day. Second, legislative provisions will need to be put in place before Brexit day (even though they will not be able to take effect until Brexit day) to make those necessary amendments of relevant aspects of EU law.”

Having said that, the committee carefully warns, “The delegated powers granted by the Bill should allow the Government significant leeway to adapt EU law, without allowing those same powers to be used to effect substantive change to implement Government policy.” It proposes that the delegated powers, the so-called Henry VIII clauses, be limited to two sets of actions:

adapting the body of EU law to fit the U.K.’s domestic legal framework

implementing the results of the U.K.’s negotiations with the European Union

This should allow the majority of delegated legislation, which have changes of an uncontroversial nature, to pass without delay. But it also means that any legislation that contains significant policy decisions is subject to meaningful scrutiny by Parliament. The committee also recommends the use of “sunset clauses” to limit the use of Henry VIII powers.

And then, assuming Scotland hasn’t left the Union and stayed in the European Union, the Scottish parliament has devolved authority to make its own decisions on which EU laws to keep, amend, or toss out. Then there’s Northern Ireland. And Wales. The prospect of compliance officers having to deal with four different sets of regulations governing the same behaviour within a single kingdom is not one that inspires much joy at work.