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How would the courts approach a judicial review of the EU (Withdrawal) Bill’s Henry VIII powers?

1. This article will discuss the Henry VIII powers in the EU (Withdrawal) Bill (“the Bill” – as referring both to the Bill in its present form and in its future form as legislation) and the issue of how the courts might approach a challenge to those powers, and in particular what account might be taken of the withdrawal agreement between the UK and the EU. 

(i) The Bill’s Henry VIII powers

2.  The Government’s Withdrawal Bill passed its second reading in the House of Commons with a slim majority of 36 votes on 11 September 2017. Both the Labour Party and Scottish National Party voted against the Bill on the basis that it granted too much power to the executive. Labour’s shadow Brexit Secretary described the Bill as ‘an affront to parliamentary democracy and a naked power grab by government ministers’.[1] 

3.  Do the powers in the Bill justify such strident criticism? The criticism has focused on the powers of delegated legislation granted to Ministers under the Bill. The Bill gives Ministers:

  1. powers by regulations to prevent, remedy or mitigate any failure of retained EU law to operative effectively or ‘any other deficiency in retained EU law’: clause 7(1).
  2. powers by regulations to make such provision as they consider ‘appropriate’ to prevent or remedy any breach of international law arising from the withdrawal of the UK from the EU; their powers extend to the imposition or increase of taxation: clause 8(1) and (3) (contrast the latter with clause 7(6)).
  3. powers by regulations make such provision as considered appropriate for implementing the withdrawal agreement if they consider that ‘such provision should be in force on or before exit day’: clause 9.
  4. powers to ‘make such provision as the Minister considers appropriate in consequence of this Act’, including by modifying any provision made under primary legislation passed before the session in which the eventual Act is passed; under clause 17(1).

4.  The powers set out above are ‘Henry VIII clauses’: they provide for a power to make regulations that amend primary legislation. The powers under clauses 7-9 provide that regulations made under those provisions ‘may make any provision that could be made by an Act of Parliament’: 7(4), 8(2) and 9(2). Clause 17 provides that the may be exercised by modifying any provision made by or under an ‘enactment’, which is defined as not including ‘primary legislation passed or made after the end of the Session in which this Act is passed’, the clear inference being that other primary legislation falls within the definition of ‘enactment’.

(ii) Henry VIII powers in our constitution

5.  In reflection of the centrality of parliamentary scrutiny to our constitutional arrangements, the courts have traditionally taken a highly restrictive approach to the interpretation of Henry VIII powers. Lord Donaldson MR’s summary of the approach to Henry VIII clauses in McKiernon v Secretary of State for Social Security[2] has been cited approvingly in a number of cases dealing with such powers: 

‘Whether subject to the negative or affirmative resolution procedure, [subordinate legislation] is subject to much briefer, if any, examination by Parliament and cannot be amended. The duty of the courts being to give effect to the will of Parliament, it is, in my judgment, legitimate to take account of the fact that a delegation to the Executive of power to modify primary legislation must be an exceptional course and that, if there is any doubt about the scope of the power conferred upon the Executive or upon whether it has been exercised, it should be resolved by a restrictive approach.’

6.  The House of Lords Constitution Committee has described Henry VIII powers as ‘a departure from constitutional principle… [which] should be contemplated only where a full and clear explanation and justification are provided’ and ‘a constitutional oddity… pushing at the boundaries of the constitutional principle that only Parliament may amend or repeal primary legislation’.[3] 

7.  In view of the established approach, challenges to regulations made under Henry VIII powers on the basis that such regulations are, by their effect, unlawful, are not uncommon. Might regulations made under the powers in the Bill face such a challenge?

8.  Given that Henry VIII clauses represent a circumvention of parliamentary scrutiny, broad powers under such clauses are viewed with particular suspicion. That being said, the approach of the courts is to consider the lawfulness of a particular regulation made under such a power in light of the originating statute itself. While the broader constitutional issues might inform the approach of the courts to interpreting a Henry VIII clause, the substantive exercise is simply one of statutory interpretation so as to ascertain whether a particular instance of something done under a Henry VIII clause is intra or ultra vires. 

9.  Thus, in considering any particular exercise of the Henry VIII powers, the courts will seek to ascertain the purpose of the statute in question and interpret those powers in light of that purpose. The constitutional dimension of the exercise was summarised by Lord Neuberger in the R (Public Law Project) v Secretary of State for Justice [2016] UKSC 39, the residence test challenge, at [23] as follows: 

‘Subordinate legislation will be held by a court to be invalid if it has an effect, or is made for a purpose, which is ultra vires , that is, outside the scope of the statutory power pursuant to which it was purportedly made. In declaring subordinate legislation to be invalid in such a case, the court is upholding the supremacy of Parliament over the Executive. That is because the court is preventing a member of the Executive from making an order which is outside the scope of the power which Parliament has given him or her by means of the statute concerned.’ 

10.  In considering the Henry VIII powers under the Bill, therefore, the Court will consider the words of the Bill in light of its statutory purpose. It follows that ascertainment of the statutory purpose of the Bill and its regulation-making powers will be a central aspect of any consideration of the latter’s legality. 

(iii) The Bill’s statutory purpose and the withdrawal agreement

11.  The question of the Bill’s statutory purpose is likely to be particularly relevant because the Bill’s powers are so broad. The Clause 7 powers are predicated on the existence of a ‘deficiency’. This term, however, is not defined, although illustrative examples are given, including: situations where reciprocal arrangements are ‘no longer appropriate’: 7(2)(c)/(e); where EU law (not being a directive) does not contain ‘functions or restrictions which it is ‘appropriate to retain’: 7(2)(f). The Clause 17 power is also broadly worded: ‘such provision as the Minister considers appropriate in consequence of this Act’. The plain dictionary definition of such terms implies a very broad ministerial discretion. 

12.  It follows from the constitutional logic underpinning the disapproval of Henry VIII clauses that, the broader the power, the greater the scrutiny to which such a clause is likely to be subject by the courts. That scrutiny will manifest itself, given the nature of the analytical exercise on a challenge to a Henry VIII clause, in the consideration of the statute’s underlying purpose.

13.  What approach, then, are the courts likely to take the purpose of the Bill, and its Henry VIII powers, to be? Let us consider how the courts might go about answering this question.

14.  The obvious answer to this question is also the least helpful: purpose of the Bill is (obviously) to effect the UK’s withdrawal from the European Union. This broad characterisation of the Bill’s purpose, however, does little to illuminate the question of the scope of the Henry VIII powers. This is because disputes are unlikely to centre on whether or not exercise of the Bill’s powers is genuinely for the purpose of exiting the EU; rather, disputes are more likely to centre on whether what a Minister considers ‘appropriate’ for the purposes of effecting the UK’s withdrawal falls within what is envisaged in the statutory framework. Consideration of the referendum and the European Union Referendum Act 2015 are similarly unhelpful, providing as they do to a similarly general answer to the question of statutory purpose.

15.  The question as to the Bill’s purpose is, in the context of interpretation of the scope of its Henry VIII clauses, a question as to what kind of withdrawal the Bill’s powers envisage and are directed to; in other words, the question of what arrangements the Bill envisages for how (rather than if) the UK is to withdraw from the EU.

16.  This precise question is, as a matter of fact, going to be answered by the withdrawal agreement between the EU that the UK that is presently under negotiation. Logically, therefore, the withdrawal agreement would appear to represent a sensible point of entry for ascertaining the nature of withdrawal provided for under the Bill and, consequently, the scope of the Henry VIII powers contained therein.

17.  The question of whether arrangements as to the form of withdrawal from the EU, rather than the fact of it, require parliamentary approval was not before the Supreme Court in Miller. However, the majority’s reasoning, particularly where it focuses on the particular nature of extinguishing rather than modifying EU rights, would appear to lean against the need for such approval.[4] The Government has, however, in any event made a commitment to a vote by Parliament on the withdrawal agreement. Therefore, the final withdrawal agreement will be subject to a parliamentary vote.[5]

18.  In view of the foregoing, the final withdrawal agreement, once voted upon, would appear to represent the most important document of the purpose to which the Court might take the Bill’s powers to be directed. Such an agreement would represent the UK’s agreement with the EU, binding as a matter of international law, and, in light of Miller and broader constitutional principles, would, by its having been subjected to some form of parliamentary scrutiny, carry a significant degree of legitimacy in terms of its status in domestic law.

19.  There might be concerns about interpreting a domestic statute in light of what would, in substance, be a treaty binding in international law. The UK has a dualist system, in that international law is only taken to have effect where enacted through domestic law. Even where one is not arguing for international law to have direct effect domestically, arguments that it should influence interpretation of a domestic statute might be said to undermine the principle of separating domestic and international sources of law which underpins the dualist doctrine.

20.  Two points can be made in response. First, the parliamentary approval of any agreement would undermine such arguments. Either it can be said that it is the parliamentary approval of the agreement, rather than the agreement itself, that falls to be taken into account; or, more simply, that the fact of parliamentary agreement sufficiently ameliorates any issues of principle that could be said to arise. Second, it should be said that such objections increasingly appear anachronistic, and out of step with the legal reality. The interpretation of a domestic statute in light of the international law obligation that gave rise to is a core interpretative principle in EU law, albeit that the way in which EU law functions within EU member states’ domestic systems gives a particular gloss to the substance of the principle. Further, it was in part in analogy with this underlying principle that the courts developed the interpretative approach under s.3(1) of the Human Rights Act 1998, with reference to the provisions of the ECHR.[6]

21.  In reality, it would appear unlikely that the courts would not consider the text of the withdrawal agreement on a review of the Bill’s Henry VIII powers. More difficult is the situation in which the Bill is challenged prior to the withdrawal agreement being agreed and approved by Parliament. If the withdrawal agreement were structured so that it would not have effect in international law until Parliament approved it, such a situation would not arise because, by definition, it would not be possible to have an international agreement without the approval of Parliament. There may be good reasons, however, why the Government may not adopt such an approach, the most obvious being the need for some agreement before the time limit under Article 50 of the EU Treaty elapsed.

22.  One scenario that could arise from such a situation would be where a withdrawal agreement had been agreed by the UK and the EU, but was yet to be approved by Parliament. In such a scenario, concerns as to interpretation of a domestic statute in light of a treaty would have more force, and absence of parliamentary approval would make the situation less clear-cut. However, the better view, in the author’s view, would be that the withdrawal agreement should nevertheless form an obvious focus for ascertainment of the Bill’s purpose, not least because it would represent the best available indicator of the same.

23.  A second scenario, where a withdrawal agreement were agreed but then put before Parliament and failed to get approval would present greater difficulties (and not just in the legal sense). There would, then, be a direct conflict between the will of Parliament and the position at international law; this conflict would be underlined where the agreement contained provisions that parliament has specifically disapproved in a rejected final agreement. It might fairly be said that objections to considering international law instruments would have their greatest force in such a scenario, although it might still be argued that the withdrawal agreement should be taken into account as one factor among many.

24.  With the exception of the power at clause 17(1), the Bill’s Henry VIII powers do not appear capable of being used prior to the UK’s withdrawal from the EU. Further, while those Henry VIII powers could only sensibly operate subsequent to withdrawal, there appears no requirement that the Bill (as an Act) only come into force subsequent to withdrawal; indeed, given the scope of what is envisaged, it would sensibly be expected that the Bill come into force prior to withdrawal. Thus, it appears at least possible that, in the context of the very broadly worded clause 17(1) power, there might arise a scenario in which a challenge might be made even prior to an agreed withdrawal agreement. At this point, a court is unlikely to have more than position papers produced by the Government as to its aims under the negotiations. Could the Court interpret the Bill’s powers in light of the Government’s policy as to its desired objectives under the Brexit negotiations?

25.  There does not appear to be any direct precedent for such an approach. On the one hand, there remains the practical argument that such documents might represent the best available information as to what kind of withdrawal is provided for under the Bill. The Bill does not itself deal with the substance of the withdrawal agreement; and there would have been no other opportunity for parliamentary scrutiny of the agreement that could be taken into account. The courts might be asked to take into account parliamentary debate and scrutiny in relation to the Bill as potentially indicating the view of Parliament as to the Government’s stated objectives, particularly where clear support or opposition is indicated. Even allowing for temptations engendered by a dearth of useful information as to how to interpret the purpose of the Bill, it appears unlikely that the courts would take such material into account. The courts are, in general, reluctant to take into account parliamentary debate in interpreting statute is well-established.[7]

26.  A challenge to the Bill’s Henry VIII powers will require the courts to ascertain the purpose of the Bill and those powers. This is unlikely to be a straightforward exercise. This is particularly so if a challenge were to be made prior to Parliament’s approval of a withdrawal agreement, when it would require the courts to engage with difficult and potentially novel legal issues as to what can and cannot be taken into account in such an exercise against, in all likelihood, the backdrop of a political crisis. It can only be hoped that the Government, in taking the Bill through Parliament, will take every measure possible to minimise the risk of such a scenario materialising.

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[1] The Guardian, Brexit bill: senior Conservatives warn May after vote for second reading, 12 September 2017: https://www.theguardian.com/politics/2017/sep/12/theresa-may-eu-withdrawal-bill-brexit-stance-conservatives

[2] The Times, November 1989; Court of Appeal (Civil Division) Transcript No 1017 of 1989

[3] Committee 6th Report 2010-11, HL 51 2010-11, §§6 and 4 respectively.

[4] See e.g. [78]-[81].

[5] David Jones, Minister of State in the Department for Exiting the European Union, statement to House of Commons during debate on amendments to the Bill, 07/02/17.

[6] See Ghaidan v Godin-Mendoza [2004] UKHL 30, in particular per Lord Steyn at [45]; and Lord Rodger at [118] and [124]. See also, for a similar interpretative exercise in another context, Hassan v Ministry of Defence [2017] UKSC 2, where the Supreme Court adopted the ECtHR’s interpretation of the ECHR in light of the Geneva Conventions. The analogy with the relationship between the Bill and the withdrawal agreement is inexact, as the former has not been passed to give effect to the latter (quite the contrary); but the close relationship between the two is self-evident.

[7] This is particularly clear from the way in which the House of Lords’ decision in Pepper (Inspector of Taxes) v Hart [1992] UKHL 3 has been interpreted in subsequent decisions. See, e.g. Spath Holme [2001] 2 WLR 15; McDonnell [2003] UKHL 63; Wilson and others v Secretary of State for Trade and Industry [2003] UKHL 40.