Constitutional bombshells do not come along very often, most change is incremental and piecemeal – or at least that was the conventional wisdom that prevailed on the UK constitution for many decades. More recently, it appears that scarcely a month passes without suggestions, discussions, proposals, or enactments of far-reaching constitutional reforms – whether through government consultations, changes to the ministerial code, the political and legal constitution and devolution, or bills specifically introduced into Parliament to break international law. 

The latest constitutional reform concerns the Human Rights Act 1998 (HRA), or rather, its wholesale abolition and replacement through a Bill of Rights (BoR). Mark Elliott – widely known as the fastest gun in constitutional law – has provided an excellent and detailed analysis of the Bill’s provisions, available in a 1,000 word version for those in a hurry.

While the Bill is framed in some circles as the mere logical follow through on a Conservative manifesto pledge, the Bill in fact goes significantly further than any fair interpretation of a promise to ‘update’ the HRA. Daniella Lock argues that the manner in which the Bill has been introduced and will be debated side-lines Parliament in favour of government control. Robert Craig has provided a very helpful analysis of clause 40 of the Bill, which – at least on one reading – provides for the complete purging of all interpretation of legislation reached under the (soon to be repealed) s3 of the HRA. My contribution picks up that discussion and explores two questions related to clause 40. 

First, what evidence do we find for the proposition that the BoRB purges all s3 HRA interpretations from domestic legislation on commencement day? Some suggest that this is so merely through the existence of clause 40, which grants the Secretary of State (SoS) the power to ‘preserve and restore’ the effect of relevant court judgments through delegated legislation. The inclusion of that provision means, so goes the argument, that all s3 HRA interpretations that are not specifically saved (or later restored) are purged from the law. But hard evidence is difficult to come by in the Bill: if this is the intended outcome, then Parliament should make itself much clearer.

Second, how broad is the clause 40 discretionary power and does it raise any constitutional concerns? The provision allows the SoS to make sweeping policy decisions ordinarily debated and decided in Parliament, overrule court judgments, and enact their own interpretation of legislation with only limited parliamentary scrutiny. These are powers that the courts have generally viewed as problematic in comparable cases and which raise serious concerns over the separation of powers and the rule of law.

Purging section 3 HRA interpretations?

Clause 40 BoRB gives the SoS the power to make ‘transitional or saving provision’, specifically to ‘amend or modify any primary or subordinate legislation so as to preserve or restore (to any extent) the effect of a relevant judgment of a court.’ A ‘relevant judgment’ is then defined as a judgment where it ‘appears’ to the SoS that an interpretation or application of a provision of primary or subordinate legislation was made in reliance on s3 HRA. But why would any such interpretation require saving?

Paragraph 264 of the Explanatory Notes suggests that this is necessary to ensure that the effect of legislation interpreted or applied in a certain way due to section 3 HRA is ‘not lost on repealing the HRA.’ The wording leaves open the question whether clause 40 is therefore intended simply to avoid any confusion about the retention of s3 HRA interpretations after commencement day (a safety net provision), or whether the BoRB seeks to purge all s3 interpretations from the law apart from the ones expressly saved or restored under clause 40 (a purging provision).

Paragraph 71 of the government response to the consultation on HRA reform is not of much help either. It suggests only that a ‘power to (…) preserve the effects of interpretations made under [section 3 HRA]’ is necessary to accompany any repeal. That does not shed much light on why it is necessary, but arguably hints at an assumption that s3 HRA interpretations are purged. However, given that the statement is made in a consultation document, it is not immediately relevant to the legal effect that the Bill produces (although it can be an aid to interpretation where there is legal ambiguity, and perhaps – per Lady Arden – even demonstrate that a supposedly clear provision is ambiguous).

There is no obvious ‘smoking gun’ in clause 40 or the wider Bill that unequivocally requires this outcome. Indeed, the Interpretation Act 1978 assumes that repeals generally do not have such an effect ‘unless the contrary intention appears’ (s16 (1) Interpretation Act). The point behind this provision is to eliminate the need for general savings clauses whenever an Act is repealed and thus risks ‘accidentally’ reviving long lost provisions.

Should Parliament wish to legislate in a manner that avoids the default application of the Interpretation Act it can certainly do so – but merely repealing s3 HRA and providing an ambiguously worded saving clause risks producing a different outcome.

. The bottom line therefore remains that if the Bill does not unequivocally provide for the purging of s3 interpretations from the law, then this result cannot be achieved through appended explanatory notes or similar statements. 

Parliament may of course clear up any ambiguity, by expressly providing that all s3 HRA interpretations should fall away on commencement day unless specifically saved under clause 40 BoRB. Even such a step would however not alleviate the considerable practical difficulties associated with a purging provision and a saving power for the SoS. 

The trouble already starts at a basic survey, although there are some laudable efforts at tracking the phenomenon. Unlike with declarations of incompatibility under s4 HRA, there is no definitive record because, as pointed out by Colm O’Cinneide, courts frequently do not spell out whether they arrived at an interpretation on the basis of s3 HRA. The reliance on the appearance to the SoS is presumably a response to this difficulty: a discretionary power to delineate the s3 interpretation that falls away (and may be saved) from the acceptable ‘ordinary’ interpretation. Drawing such a distinction may be contentious enough when it comes to legislation enacted before the passage of the HRA, but becomes even more so where legislation was enacted subsequently. That is so because there is no pre-HRA interpretation of such legislation that the law can revert to: no established reading could logically exist, and the only interpretation available is one influenced by s3 HRA. Moreover, the broader legal environment in which the statute came into existence was one already inextricably shaped by the HRA. Parliament debated the policy issues and enacted the legislation in the full knowledge (and perhaps the confidence) that a s3 HRA interpretation was available. It is therefore not even clear that it is possible to separate ‘ordinary’ from s3 interpretations in such cases – they are two sides of the same coin.

Even though the clause 40 power is time limited to two years from commencement (subsection 2) it nonetheless provides for a problematic level of executive discretion: s3 interpretations could be lost, only to be revived at some arbitrary point within the two-year time period.

Extensive discretionary powers

The clause 40 powers are extensive. The only substantial requirements for their exercise are that the relevant judgment being preserved or restored (a) rules on the interpretation or application of primary or subordinate legislation (which applies to virtually all judgments in some respect) and (b) that it ‘appears’ to the SoS that the judgment was based on a s3 HRA interpretation. 

Henry VIII powers are not invariably objectionable, especially when they provide consequential, technical and supplemental rules to an Act of Parliament. Parliamentary time is rightly seen as a scarce resource that must be sensibly managed. However, as Alison Young and Nick Barber point out, there is a worrying trend in recent years towards ever more expansive Henry VIII powers that empower a body other than Parliament to alter primary legislation.

Clause 40 BoRB fits squarely into this category. It is far from technical and provides the power for potentially wide-ranging changes to laws: changes, that under ordinary circumstances Parliament would determine in terms of policy and legislation through debate, and that courts would be empowered to interpret and apply in specific cases. 

On its wording, clause 40 covers virtually all Acts and subordinate legislation that were the subject of a s3 HRA interpretation: the power cuts across and unsettles vast areas of the law. In many areas, the decision whether a s3 interpretation should be saved by amending primary legislation is crucial and amounts to a policy decision that would ordinarily be subject to a full debate in Parliament. While the regulations affecting primary legislation are subject to the affirmative procedure (subsection 4), the House of Commons and House of Lords are only able to accept or reject them wholesale. 

Crucially, the BoRB Henry VIII power also includes the ability to overrule particular court judgments in some circumstances. Ordinarily, the decision whether to overrule the development of the law through the courts is one reserved to Parliament under the constitution: especially deciding whether a change in the law is desirable and what form it should take is subject to a wide spectrum of reasonable policy considerations best debated in Parliament. Clause 40 is problematic considering the broad discretion of the SoS in their response to any determination that a judgment relied on a s3 HRA interpretation, especially their discretion on:

• what the legislation (its specific provisions and in the round) would have required in the absence of s3 HRA, because otherwise it is impossible for them to isolate the s3 interpretation that they may choose to save, and
• to what extent the SoS then saves the interpretation they assess was achieved through application of s3 HRA.

Furthermore, once a change in the law has been deemed necessary and duly enacted by Parliament, interpreting the law and applying it to particular cases is a task typically reserved to the courts. Yet, clause 40 grants the SoS discretionary powers to enact their own interpretation of the law. They are free to ‘save’ only those elements of s3 interpretations they deem desirable and purge what remains by omission. This could leave legislation changed beyond recognition and operating in a manner that bears little resemblance to the statute passed by Parliament or the ‘relevant judgment’ the SoS is supposedly preserving. As long as the stated intention is even a tokenistic ‘saving’ of some element of a s3 interpretation, the SoS could enact their interpretation of the law by altering primary legislation. This could affect: 

• any pre-BoRB judgment where it is unclear (for whatever reason) whether any reliance was placed on s3 HRA, as long as it ‘appears’ to the SoS to be based on such an interpretation,
• any pre-BoRB judgment that considers, and possibly even rejects a s3 HRA interpretation, as long as it nonetheless ‘appears’ to the SoS to be based on a s3 interpretation, and
• any post-BoRB judgments that affirms (or overrules) a pre-BoRB judgment that ‘appears’ to the SoS to have been based on a s3 HRA interpretation.

Giving the SoS such extensive powers that are traditionally the purview of Parliament and the courts is extremely problematic. And, to put it mildly, courts have in the past been reluctant to accept similar powers as compatible with the rule of law and separation of powers. It may well invite judicial review proceedings on any exercise of clause 40 powers, including where the SoS declines to save s3 interpretations. The broader a delegated power, the more likely it is that the courts will read it down.

Clause 40 introduces deep uncertainty over the interpretation of all areas of law touched by s3 HRA interpretations, and potentially even those where they played no decisive role. Most significantly, the BoRB contains a remarkably broad and extensive Henry VIII power – one that usurps the traditional role of Parliament and of the courts. That alone should be sufficient cause for close scrutiny and amendments during the legislative process.

I am grateful to Michael Gordon, Hayley J Hooper, David Feldman, Ewan Smith, and Alison Young for helpful comments on earlier drafts. Special thanks also to Robert Craig, Mark Elliott, Gavin Phillipson, Kyle Murray, Robert Thomas, and everyone who contributed to the social media thread aptly described as ‘legal geekery of the gods.’

Stefan Theil is John Thornley Fellow and Director of Studies in Law at Sidney Sussex College, University of Cambridge

(Suggested citation: S. Theil, ‘Henry VIII on steroids – executive overreach in the Bill of Rights Bill’, U.K. Const. L. Blog (6th July 2022) (available at https://ukconstitutionallaw.org/))