From Reformation to Repeal – 480 years of leaving Europe

In April 2019, the United Kingdom of England and Wales will leave the European Union. But at the moment, it is a legislative act that happened 480 years prior to that date which seems to be concerning everyone.

In 1539, Parliament enacted the Statute of Proclamations, which is supposed to have given King Henry VIII absolute power. The wording of the Act states that proclamations shall be “obeyed, observed, and kept as though they were made by act of parliament”. Big words. Some historians appear to consider this to have been a power grab by the King, trying to rule as an absolute tyrant. In practice, actually, the rest of the Act goes on to say that these proclamations must be given in council, and then gives a list of things that a proclamation cannot do (including, for example, protection of property, the right to life and the preservation of the common law).

Comparisons have been made between the Statute of Proclamations and the European Union (Withdrawal) Bill 2017-2019 (also known as the Great Repeal Bill). As at the date I write this blog (19 September 2017), the Bill had just had its second reading approved in Parliament by 38 votes. Labour is opposed. The reason apparently is because of the delegated legislation provisions, which are the Henry VIII clauses.

One key provision is clause 7, which provides that the government can make any law it wishes to prevent, remedy or mitigate a deficiency in EU law as transposed to UK law. Subsection 4 states that “regulations under this section may make any provision that could be made by an Act of Parliament” which has such similarities to the Statute of Proclamations that I wonder whether the drafters put that in on purpose. Like the Statute of Proclamations, it also then goes on to create a list of things it can’t do (including, for example, increasing taxation or revoking the Human Rights Act).

It might be worth having a bit of a debate about whether Henry VIII was more restricted, because he had to make decisions in council, as compared to David Davis who appears to be able to make any decision he likes. However, no doubt this legislation is going to get scrutinised to death in Parliament and these sorts of issues are going to come up.

What is more interesting is the effect of the legislation itself, specifically the core provision that EU law will be transposed into UK law. Going back to the immediate aftermath of the EU referendum, I wrote in this blog that what was needed was legislation that transposed all UK law into EU law, and I then wrote another post gloating about how the government had decided to do exactly that, and that politics had become all too predictable.

However, it is worth thinking a bit more carefully about the impact that the Great Repeal Bill has on the UK’s membership of the single market. Politicians of all stripes are talking about remaining in the single market, having access to the single market, retaining all the benefits of the single market or leaving it altogether.

The single market is an area where laws relevant to trading are harmonised, to make it easier for seller from Country A to sell products and services in Country B. That is achieved by the institutions of the EU generating laws which apply to all members of the single market. If one of the members were to not comply with those laws, it would be harder (though usually not impossible) for its citizens to sell products elsewhere, and harder for citizens elsewhere to sell products in that country. The single market works because the EU enforces those laws directly onto EU citizens.

Regardless of where David Davis takes our Brexit negotiations, the Great Repeal Bill is a bit of a coup d’état for those who want to leave the single market (there are others who want to remain in the single market whilst still leaving the EU). It provides that EU law will become part of UK law, and in turn the UK can then legislate at will. That is the very definition of withdrawal from the single market. The UK will no longer have that mechanism in place to make the buying and selling of goods across the EU a bit easier. It will probably still be possible to buy and sell goods and services across the EU, but it will be a little bit more expensive.