The Prime Minister has announced that the Queen’s Speech will include a “Great Repeal Bill”. Its primary purpose will be to provide for the repeal of the European Communities Act 1972. (The Act through which European Union (“EU”) law is given supremacy in the UK.)
The Bill, once enacted, will not “repeal” any EU law but would freeze the existing EU law that apply in the UK. The EU law would then take effect through domestic law. The UK Government would start the process of amending, repealing, or continuing with, this body of EU law. It is likely that the Bill would provide the Government with so-called “Henry VIII” powers to carry out the task.
A “Henry VIII” clause is a provision in a Bill which enables primary legislation to be amended or repealed by subordinate legislation, with or without further Parliamentary scrutiny. This means that there is no limit to Parliament’s legislative. This will give Ministers the power, by way of secondary legislation, to amend primary Acts of Parliament.
Unlike primary legislation, which cannot under domestic law be rejected by a court, secondary legislation is subject to review by the court further to its supervisory jurisdiction. The court can void secondary legislation it finds such legislation to be “ultra vires.”Subordinate legislation can be subject to judicial review on the grounds of illegality, procedural impropriety or Wednesbury unreasonableness.
In conclusion, EU derived law has become an integral part of the UK’s legal landscape. Following Brexit, the body of EU law will have to be reviewed. Nevertheless, it is hard to see how Parliament can delegate Henry VIII powers to Ministers to undertake this task so as to insulate Great Repeal Act secondary measures from challenge. Such challenges are likely to be irritating to the government. However, Ministers might want to remember that restoring the sovereignty of Parliament was a key aim of the Brexit campaign.