Brexit and the use of "Henry VIII" powers
It has been reported that the UK Government has estimated that it will take at least 600 UK Statutory Instruments (which are secondary or subordinate regulations enacted under the authority of primary legislation) to take the UK out of the EU.
This has led to the increased use of a practice known as "Henry VIII" powers (as a back- handed recognition of that King's arbitrary use of the power to rule by proclamation under the Statute of Proclamations 1539 - a statute which was happily repealed in 1547 after his death), whereby Statutory Instruments promoted by the Government can be used to amend primary legislation enacted through Parliament.
The explanation apparently given by Government is that there is so much do to accomplish Brexit within a tight timetable that , provided that there is proper Parliamentary scrutiny, the use of such statutory instruments is the most practical way forward.
The Public Law Project (PLP), a charity whose stated aim is to improve access to public law remedies for disadvantaged individuals, has as one area of focus its so-called SIFT Project ( standing for "Statutory Instruments: Filtering and Tracking") and is reported to have written a Letter before Action to UK Government bodies threatening judicial review in respect of the Cross-border Trade (Public Notices) (EU Exit) Regulations 2019 ( SI No 2019/1307) ("the Regulations"), which contains such a "Henry VIII" power. The PLP says that such power goes beyond what is permitted by the associated primary legislation (in this case, the Taxation ( Cross-border Trade) Act 2018 (the TCTA). As a result, the UK Government has agreed to revoke the Regulations (though without admitting that it was wrong to have enacted them).
The problem centred around regulation 3 of the Regulations which purported to authorise HM Treasury, on the recommendation of HM Revenue and Customs, in certain circumstances to dis-apply by "public notice" primary legislation relating to VAT, customs duty or excise duty if in consequence of , or otherwise in connection with , the withdrawal of the [UK] from the EU, HM Treasury considers it appropriate "in the public interest" to give the notice.
The PLP argued that this purported authority to HM Treasury to dis-apply primary legislation by public notice - albeit that it was a temporary power and was couched around with a number of safeguards - went beyond what was permitted by section 51(1) and (3) of the TCTA.
The fact that the UK Government , whilst pleading the best of intentions in arguing that the Regulations were "designed to ease the flow of trade and to allow flexibility" (and there is no reason to disbelieve their good intentions in that respect), has , nevertheless, stated that it will revoke the Regulations, shows that there is merit in holding the Government to account where there is reason to do so.
The long-established proverb - "More haste, less speed" - perhaps never had more resonance than now!
