Tarun Khaitan: A Constitution Protection Clause for the Great Repeal Bill?

Scope: Extensive provisions for Henry VIII powers in the European Union (Withdrawal) Bill 2017 (hereinafter, the “Repeal Bill”) have become predictably controversial. These powers are mainly found in clauses 7 (‘dealing with deficiencies arising from withdrawal’), 8 (‘complying with international obligations’) and 9 (‘implementing the withdrawal agreement’). The scope of the power in clause 7 is the broadest, allowing Ministers to enact any provision that Parliament could make to remedy ‘any failure … to operate effectively’ or ‘any other deficiency’, remove ‘redundant or substantially redundant’ laws, remove provisions no longer ‘appropriate to retain’. The use of such vague and broad terms fail to reassure that ‘technical’ amendments alone will fall within the scope of these powers. The likelihood that these powers will be used by a minority Government to sneak in policy changes is high, especially at a time when Parliament will have an extremely heavy workload.

Limitations: A sunset clause limits the use of these powers to a period of 2 years after the exit day. The Bill also provides that these powers may not be used to create tax or criminal liability, make retrospective provisions, or to tinker with either the Human Rights Act 1998 or the Northern Ireland Act 1998. The Northern Ireland Act is not protected from Henry VIII powers under clauses 8 or 9, and even the protection for that Act under clause 7 is qualified by certain exceptions. There is no protection for the laws concerning Scottish or Welsh devolution; nor are legislative provisions concerning welfare, equality and antidiscrimination, freedom of information or working conditions protected. The necessity test proposed by the Constitution Committee (that Henry VIII powers be available only for changes that are “necessary” to adapt EU law into domestic law or to implement the results of any agreement with the EU) isn’t required by the Bill either [H.L. 123 (2016-17) at [50]].

Scrutiny: Schedule 7 of the Bill provides for the scrutiny procedures for secondary legislation made pursuant to clause 7. But for a small number of specified regulations (such as those creating the power to legislate) subject to the ‘affirmative procedure’ (requiring Houses of Parliament to affirmatively approve draft regulations), most regulations under clause 7 will be subject to the extremely light-touch ‘negative procedure’ (whereby a regulation only needs to be laid before the Houses, and will come into effect unless either House annuls it). The more stringent super-affirmative procedures that often accompany the grant of extensive Henry VIII powers (such as in the Human Rights Act 1998, the Legislative and Regulatory Reform Act 2006 or the Public Bodies Act 2011) have not been prescribed either. The Constitution Committee in fact suggested that given these uncharted waters, it is better not to fix the scrutiny procedure in advance, but to allow a parliamentary committee the power to determine the appropriate level of scrutiny (including, if proper, the super-affirmative procedure) required for each measure in a case-by-case basis [102].

Constitution Protection Clauses: The Henry VIII powers under the proposed Bill are wide in scope, with few limitations, and feeble scrutiny provisions. The ‘necessity’ test, recommended by the Constitution Committee, will certainly go some way in mitigating some of the worries about the extent of the Henry VIII powers sought to be granted under the Bill. The rest of this blog post will focus on another, little noticed, limitation that has been used by Parliament in recent years to restrict the use of otherwise wide-ranging Henry VIII powers (for a more detailed discussion of this limitation, see section II of this article). These “constitution protection clauses” forbid the executive from using the Henry VIII powers delegated to it for making changes “of constitutional significance”. The Constitution Committee itself recognised that the necessity test may not suffice to control these powers, and that additional limitations were necessary [51]. A constitution protection clause might be one such limitation.

Such a clause was first enacted in section 3(2)(f) of the Legislative and Regulatory Reform Act 2006. Since then, the clause has also appeared in section 5D(2)(e) of the Fire and Rescue Services Act 2004 (as amended in 2011), and section 6(2)(e) of the Localism Act 2011.  Section 83(2)(e) of the Local Government Act (Northern Ireland) 2014 includes a similar limitation on the powers delegated upon the Department of the Environment.

The limitation in the 2006 Act grew out of a growing discomfort with the increasingly frequent grant of Henry VIII powers. Only a couple of years earlier, while reporting on the Civil Contingencies Bill in 2004, a parliamentary joint committee was worried that the blanket Henry VIII power proposed in the Bill could, “[i]n the wrong hands … be used to remove all past legislation which makes up the statutory patchwork of the British constitution” [H.C. 1074 (2002-2003)] at [183]. The Report then enumerated 21 statutes which make up this patchwork and recommended that these statutes should not be vulnerable to modification or disapplication under the proposed Henry VIII provision. The Civil Contingencies Act 2004 did not protect all of the recommended constitutional statutes. Instead, section 23(5) provides that the powers granted under it may not be used to amend parts of itself or the Human Rights Act 1998. Given this limited statutory protection, it is remarkable that the Explanatory Note to section 23(5) of the 2004 Act had this to say:

“Parliamentary Counsel have advised that the effect of the normal principles of the construction of delegated powers is that substantive amendments could not be made by emergency regulations to provisions of an enactment which are of constitutional significance.”

This extra-statutory assurance with regard to the Henry VIII power in the Civil Contingencies Act was later enacted as a statutory limitation on the powers under the Legislative and Regulatory Reform Act 2006, on the insistence of an anxious House of Lords.

Given that Brexit may necessitate some changes to devolved legislation (how and by whom, of course, a different issue best left to another post), a constitution protection clause in the Repeal Bill will have to be subject to specific provisions outlining the powers and procedures in relation to amending devolution settlements.

Evaluation: Would a constitution protection clause limiting Henry VIII powers in the Repeal Bill be sufficient to mitigate worries about their overreach? Such a clause will certainly be a greater limitation on the scope of the power compared to the current set of limitations specified in clauses 7, 8, and 9 of the draft Bill—unless the principle of legality is interpreted as already forbidding the use of a general Henry VIII power to make changes to constitutional provisions (given the direction of recent jurisprudence, it is more than plausible that a court would arrive at such a finding before long. If it does, constitution protection clauses might become redundant, or at best evidence parliamentary recognition of the constitutional principle).

Speculation about the scope of the principle of legality aside, whether a constitution protection clause is likely to be sufficient will very much depend on how the judiciary interprets the phrase ‘of constitutional significance’. None of the statutes that use the phrase have attempted to define it, the task has been left entirely to the judiciary. In the absence of a constitutional code, there exists a wide interpretive latitude for determining what is and isn’t of constitutional significance. It is clear, for example, that changing the provisions of the Human Rights Act 1998 would be of constitutional significance. What about a change to the National Minimum Wage Act 1998 or the Equality Act 2010?

Perhaps the very ambiguity of the limitation might make it a workable compromise. It would be a classic example of a deferral tool, where controversial matters with a very high decision costs are deferred to the future, allowing parties on opposite sides of an argument to accept the compromise in the simultaneous hope of a future victory. This might be especially attractive given the second order uncertainty over what these points of disagreements might end up being. Inclusion of a constitution protection clause in the Repeal Bill will no doubt be a significant gain for the Opposition (possibly more than that, if recent judicial trends towards constitutional protection continue). The Government is likely to prefer adding this general limitation to its currently extensive powers under the Bill to the alternative (significantly pruning and specifying those powers), especially when it isn’t quite sure what uncertainties lie ahead. It will at least be able to hope that the courts might read the limitation narrowly, if and when it comes to that (if it doesn’t come to that, it will probably be because the threat of litigation under the clause would have sufficiently disciplined the Government enough to restrict its use of these powers to truly technical matters).

Dr Tarunabh Khaitan is an Associate Professor and Hackney Fellow in Law, Wadham College, Oxford. Thanks to Alison Young, Jeff King and Nick Barber for helpful comments.

(Suggested citation: T. Khaitan, ‘A Constitution Protection Clause for the Great Repeal Bill?’, U.K. Const. L. Blog (19th Jul 2017) (available at: https://ukconstitutionallaw.org/))