Regulations that could strip EU workers of the right to be self-employed in the UK are up for debate in the House of Commons on Monday as legal charity Public Law Project warns that Government plans to make use of controversial Henry VIII powers may be unlawful.

If approved by Parliament, the draft Freedom of Establishment and Free Movement of Services (EU Exit) Regulations 2019 will allow Ministers to remove the rights of EU, EEA, Swiss and Turkish nationals to own and manage companies or to provide services in the UK on the same basis as UK nationals.

The Public Law Project has warned that there are four key concerns with the Government’s approach to making this change.

  • Secondary, rather than primary, legislation is being used to make significant policy changes and to disapply important rights
  • The changes appear to impact on immigration rights and so ought to be included in the Immigration and Social Security Coordination (EU Withdrawal) Bill (‘the Immigration Bill’)
  • They go beyond the powers conferred on Ministers by the Henry VIII power in section 8 of the Withdrawal Act, and
  • There has been no impact assessmentbefore laying the Regulations despite the obvious impact on businesses and individuals

Public Law Project researcher and Brexit Statutory Instrument project lead Alexandra Sinclair said:

“The Secretary of State made it clear during the passage of the Withdrawal Act that no change should be made to rights through delegated legislation. The Government also made it clear that the Henry VIII powers in Section 8 of the Act would not be used as a vehicle for policy changes.

“The changes that are being proposed reduce the rights of a large group of people. Not only will the regulations restrict the rights of EU, EEA, Swiss and Turkish nationals in respect of owning and managing businesses in the UK, they will almost certainly impact the underlying basis for their lawful residence in the UK. Whilst the Government’s position is that the regulations will not affect the immigration rights of these groups, there is not a clear legal basis for this view.

“Secondary legislation should not be used to make such profound policy changes or to reduce rights. It is not subject to the same level of parliamentary scrutiny as primary legislation. The proper and lawful way of making these changes would be to include them in the new Immigration Bill, thereby allowing full parliamentary scrutiny and for elected representatives to make amendments.

“The use of Henry VIII powers to make this change appears to be unlawful. Under Section 8 of the Withdrawal Act, such powers can only be used where there is a failure of retained EU law to operate effectively or if there is a ‘deficiency’ in retained EU law. There is no reason why the law containing rights of EU, EEA, Swiss and Turkish nationals should not operate effectively after exit day.

“The Government is interpreting ‘deficiency’ so broadly that it could encompass almost any aspect of EU treaty law and in a way that is inconsistent with the cautious approach to using Section 8 powers to which it committed during the passage of the Withdrawal Act.

“By taking such a wide interpretation, the Government is giving itself a ‘carte blanche’ to make a profound policy change that will undermine the rights of significant groups of people and elude effective scrutiny by Parliament.”

Read PLP’s parliamentary briefing.


About the Public Law Project

  1. PLP was set up to ensure those marginalised through poverty, discrimination or disadvantage have access to public law remedies and can hold the state to account.
  2. Our vision is a world in which individual rights are respected and public bodies act fairly and lawfully. 
  3. Our mission is to improve public decision making and facilitate access to justice.
  4. Our priorities are to:
    • Promote and preserve the Rule of Law
    • Ensure fair systems
    • Improve access to justice

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