What does Henry VIII have to do with Brexit?

Divorce proceedings between the United Kingdom and the European Union have started, and are expected to be finalised within the next two years. But leaving the EU also means repealing sixty years of European legislation, which will require major changes to the UK’s legal and constitutional framework.

To maximise legal stability and to ensure a smooth post-Brexit transition, the UK government decided to introduce a Great Repeal Bill, that is expected to be published soon after the Queen’s Speech on June 19th 2017. But what’s this Great Repeal Bill about and what are its legal implications?

What’s the Great Repeal Bill?

As the name suggests, the Great Repeal Bill is a bill that will repeal the 1972 European Communities Act (ECA), the domestic law that enacted the accession of the United Kingdom to the European Union and enshrined the supremacy of EU law over British legislation.

What will it actually ‘repeal’?

Apart from scrapping the European Communities Act and therefore ending the applicability of EU law in the UK, the bill will actually not repeal all that much. Instead, it seeks to :

  • incorporate all existing EU legislation into domestic law ; and
  • replace the ECA with a new legal framework that will reflect the UK’s new relationship with European law.

This tremendous transposition work is likely to be the largest legislative project ever undertaken in the UK. Indeed, the number of sectors affected by the Great Repeal Bill is endless, and while some amendments to the law will be minor, eg striking out references to EU institutions, others will be very substantial, notably when it comes to trade, immigration, competition rules or workers rights.

The problem is, this work has to be completed within two years, before the UK leaves the EU for good, and the countdown has already begun.

Two years? How is that possible?

Withdrawing from the European Union is not going to be a piece of cake, for the simple reason that there are thousands of EU laws (19,000 according to the House of Commons Library), and repealing each piece of legislation one by one would take decades, if not centuries.

The use of delegated powers

To make it possible to complete the work on time, the Great Repeal Bill will grant ministers the right to amend or repeal some pieces of legislation without a vote in Parliament, through the use of what is called ‘delegated powers’- also known as ‘Henry VIII powers’.

These powers – so named from a 1539 statute which gave King Henry VIII power to legislate by royal decree – will enable the ministers to:

  • make technical adjustments to EU-related law so that it operates effectively post Brexit; and
  • change the law to reflect the content of any withdrawal agreement under Article 50.

More generally, this means that the government will be able to decide how EU laws will be applied once Britain leaves, without parliamentary approval. And that’s where the Great Repeal Bill becomes controversial.

The fear of an ‘executive power grab’

Some members of the opposition condemn an ‘executive power grab’ and fear that Henry VIII powers will be used to make big policy shifts in substantial areas of law, such as food standards or workers rights, that normally require the authority of Parliament.

To reassure critics, ministers have guaranteed that such measures:

  • Will be time-limited; and
  • Will only be used to make technical changes, not for substantive policy changes.

Yet, the decision on what is considered “technical” appears to lie with the government.

What about Scotland, Wales and Northern Ireland?

The Great Repeal Bill also raises concerns about the decentralised legislations of Scotland, Wales and Northern Ireland. Indeed, many EU laws affect areas that are controlled by the devolved administrations. Will these laws become part of Westminster law, or will they fall within the scope of the devolved legislations?

It’s still unclear how the bill will deal with devolution matters,  but the government promised to work closely with the devolved administrations, and said they would have significant power in the decision making process.

Great or not great, the Repeal Bill will sure be a legislative upheaval that will have major implications on the future of UK law. And all things considered, calling on Henry VIII to handle the divorce with the EU seems legitimate. The Tudor monarch may not have been the greatest advocate of the principle of separation of powers, but with six wives on the go, he was sure a break-up expert !