Henry VIII Clauses

Last Friday, the Belfast High Court rejected a legal challenge to the government’s claim that it can use the royal prerogative to invoke Article 50 of the Lisbon Treaty. Judgment in a similar case before the London High Court is due shortly.

The Belfast court did not rule on matters which would be considered by the London High Court, but limited its assessment to the Northern Irish constitutional landscape: in particular, whether or not the 1998 Good Friday Agreement prevented Brexit being imposed on the people of Northern Ireland. A key assumption behind the Belfast judgment was that the triggering of Article 50 would not, in itself, alter the law of the United Kingdom; instead the judge found it was merely the beginning of a ‘process which ultimately will probably lead to changes in UK law’. That argument has effectively already been lost in London, since the government was forced to concede, for reasons of political expediency, that Article 50 is irreversible. Irreversibility has consequences which considerably weaken the government’s arguments on the scope of prerogative power.

Rights that have been granted expressly by Parliament will be removed, whether or not a deal is reached to protect some, all or none of them during the two-year negotiation period. The government said in the London High Court that Parliament would be ‘involved’ later on, but such ‘involvement’ (the language used by the government’s counsel was often deliberately loose) would amount to no more than the power to sign off on a situation once ‘the die is cast’, as David Pannick argued for the claimants. ‘A vote so late in the day,’ as the shadow Brexit secretary, Keir Starmer, said, ‘would put MPs between a rock and a hard place. It would ask us to choose between a deal on the government’s terms or leaving the European Union with no deal at all.’

The government relies on an omission in the European Union Referendum Act 2015, which says nothing about what should happen in the event of a vote to leave. The government argues that, because the Referendum Act does not say it cannot trigger Article 50 without Parliament’s authority, it must mean it can. And because it is entitled to use the royal prerogative to negotiate international treaties, it is also entitled to dismantle them. In Belfast, a similar omission argument found favour with the judge. In London, it was explored in some detail by the lord chief justice. The government’s counsel conceded that even if the government can negotiate international treaties, they neither take effect nor can be withdrawn without Parliament’s express authority.

The claimants argued that where Parliament has created constitutional rights, the minister has no power to destroy them unless Parliament has authorised him, expressly and clearly, to do so. The government has failed to recognise the destructive effect of Brexit on fundamental rights created by Parliament. Take its shameless bartering of the rights of EU nationals who lawfully live here, or its careless demands for companies to compile lists of their foreign workers. Even if the rights that are being removed by our leaving the EU are replicated in domestic law through the Great Repeal Bill, the fact remains that rights are being taken away, without the consent or scrutiny of Parliament. Just as the royal prerogative cannot and does not create rights or duties in domestic law, the claimants argue, so it cannot be used to defeat rights or duties granted by Parliament in domestic law.

Vote Leave campaigned, among other promises that have been reneged on, with demands to restore Parliamentary sovereignty. Yet the government’s arguments before the High Court sideline Parliament in more than one way. There is a vast array of legislation derived from 43 years of Britain’s membership of the EU and its predecessors, covering fundamental rights and social policy, including workers’ rights, environmental rights, regulations on product safety, pharmaceuticals, financial services etc. All of that needs to be replicated in domestic law on the day that EU law no longer has effect. It will be a virtually impossible task, grossly underestimated by the government, to ensure that all of that regulation already extensively debated and scrutinised, is replicated in domestic law, within the two-year negotiation period, with sufficient scrutiny and consideration by Parliament. That makes the use of Henry VIII clauses, which give government ministers the power to amend, repeal or improve legislation without oversight or scrutiny from Parliament, inevitable. It would be the most significant transfer of power to the executive in the modern history of the United Kingdom. Restoring sovereignty to Parliament could not be further from the undemocratic reality of what is being proposed.