The First Brexiter
In the fatness of these pursy times, there’s much talk of Henry VIII, the first Brexiter. The tubby tyrant’s serial monogamy led to Brexit from Rome and from Pope Clement VII, then incumbent in the line of apostolic succession that has latterly issued in Jean-Claude Juncker. In an early exercise in having one’s cake and eating it Henry hung on to the title of Fidei defensor, which Rome had granted him for taking a pop at Luther. As part of the Reformation power grab, Henry got Thomas Cromwell to draft the Statute of Proclamations of 1539, which has given rise to today’s talk of ‘Henry VIII clauses’ in the Brexit legislation launched last week in the Commons.
This has provoked another outbreak of misappropriated-sovereignty syndrome. Who rules? Scares circulate that the government’s spectacularly misnamed ‘Great Repeal Bill’ will ape the 1539 statute’s provision that royal proclamations be accorded the force of law; even James VI and I, king of Scotland and England by divine right, is said to have called the Henrician act ‘tyrannical’ (it was repealed after only eight years). But it’s notable that the measure rested on what the late historian G.R. Elton, in his pitilessly turgid The Tudor Revolution in Government, called ‘the omnicompetence of statute’. Now in place of proclamation through enactment we have enactment as repeal: the blanket incorporation of the European acquis into UK law when the country leaves the union. This is to prevent what the Telegraphcalled ‘a black legal hole after Brexit’. No doubt the ‘Great ingestion of European law just when we thought we were escaping the clutches of Brussels’ was found to be a less catchy moniker. As the Sunreported the other day, the bill’s name has now had to be changed on misrepresentation grounds.
On the one hand, it’s possible to get over-wobbly about Henry VIII clauses, which give the government the power to amend legislation without extended parliamentary scrutiny. Indeed, Henry turns out to be inescapable: the European Communities Act 1972, the one measure that is in line for repeal, itself contains a clause, 2(2), which empowers UK government ministers to transpose EU directives into UK law. Europhiles point out that in such cases the legislation has at least been through a drafting process in Strasbourg or Brussels before being transposed. Delegated legislation via statutory instruments is bread-and-butter legislative fare (about three thousand statutory instruments are enacted each year; according to the government Parliament has enacted 7900 of them to implement EU law). But since its say is usually limited to issuing a yea or nay to statutory instruments, Parliament’s scrutiny of them has long been subject to criticism. Last year the Strathclyde Review recommended stripping the Lords of its power to veto statutory instruments after their lordships blocked secondary legislation on tax credits. The Constitution Committee voiced concern that ‘the government can pass legislative proposals with greater ease and with less scrutiny if it can do so as delegated, rather than primary, legislation.’
On the other hand, the very fact of mass incorporation poses questions about the plethora of EU laws that rely on European agencies for their enforcement. Sometimes, as with food standards, the UK’s FSA stands alongside a European agency (the European Food Safety Authority): what happens when the UK is no longer part of the EU? Similar regulatory systems are in place for the finance sector, agriculture, telecoms, medicines and environmental protection. A cleft stick looms: either the UK does its own thing, and jeopardises trade and other forms of co-operation with the union; or it defers to the extant European regime, as do countries importing meat products into the EU, and escape from the Euro-hydra is bilked.
As there’s little chance that comprehensive replacement regulatory regimes will be in place before the Article 50 deadline in March 2019, the default policy will presumably be to empower ministers in whatever government is in office by then to decide these matters by personal fiat – the modern version of Henry VIII’s omnicompetence of statute, without the beheading.