Published: 18th October 2019 GOVERNMENT FORCED TO WITHDRAW PLANS TO MAKE BREXIT LAWS ‘BY DECREE’ In response to a challenge by the Public Law Project, the Government has agreed to shelve plans for civil servants to make Brexit legislation by ‘public notice’, a controversial Henry VIII style power recently described by a committee of MPs as “a modern form of ruling by proclamation”. A statutory instrument (SI) laid by the Government last week (the Cross-border Trade (Public Notices) (EU Exit) Regulations 2019) sought to give Treasury officials the power to amend the law by public notice following a no-deal Brexit. But in response to opposition from legal charity the Public Law Project, the Government this week agreed to withdraw the SI with immediate effect and promised not to use the controversial power. Public Law Project Director Jo Hickman said: “The Henry VIII powers laid out in this regulation would have allowed unelected officials to amend laws by decree and without oversight from Parliament. That is wrong in principle and in this case, unlawful. “The use of public notices in this way has been likened to making law by proclamation as in the time of Henry VIII. Introducing a power to change the law completely outside of the parliamentary process would set a dangerous and undemocratic precedent. The Statute of Proclamations 1539 was repealed after the death of Henry VIII for good reason.” The legal basis for the Public Law Project’s challenge was that the Cross-border Trade (Public Notices) (EU Exit) Regulations 2019 went beyond the powers of its parent act, the Taxation (Cross-border Trade) Act 2018 (TCTA). Statutory instruments are considered to be ultra vires (beyond their powers) and not lawful when they do so. Jo Hickman said: “The TCTA does not provide for law to be amended by public notice. The text of the TCTA is clear. Parliament did not intend to confer on Treasury civil servants the power to amend primary legislation by way of public notices. “Withdrawal from the EU represents an exceptional legislative challenge. But whatever the demands, the Executive cannot dispense with our law-making process or confer on unelected officials powers that have not expressly granted by Parliament.” Ends Further information Read the Public Law Project pre-action protocol letter to HM Treasury.Read HM Treasury reply to Public Law Project.PLP also received correspondence from HMRC legal team on 17 October in which officials confirmed that the Government “have treated the Regulations as revoked with immediate effect.” Explainer: Statutory Instruments and Henry VIII powers Henry VIII powers, whereby a Minister is given the power to amend primary legislation by way of statutory instruments (SI) are controversial. SIs are a form of secondary legislation. Commonly made in the form of ‘regulations’, they undergo a lower level of parliamentary scrutiny before they become law, although they are usually seen and are in some cases debated in Parliament before they become law. Even more controversial are those Henry VIII powers which can be exercised by a Minister through a ‘made’ SI. This is a procedure whereby an SI can come into force immediately and before any Parliamentary scrutiny can take place, albeit Parliament does have the opportunity to scrutinise and (if it wishes) revoke the SI after it has become law. The Cross-border Trade (Public Notices) (EU Exit) Regulations 2019 sought to take Henry VIII powers a stage further still by authorising Treasury officials to change the law not by SI, but simply by making a ‘public notice’. Statutory Instruments derive their authority from a ‘parent act’; a piece of primary legislation. In this case, it was stated that the public notice powers of the Cross-border Trade (Public Notices) (EU Exit) Regulations 2019 were derived from s51 of the Taxation (Cross-border Trade) Act 2018 (TCTA) (the ‘parent act’). The Public Law Project’s legal argument The Public Law Project argued that this SI was unlawful because the TCTA does not include a power to delegate a Henry VIII power at all, and certainly not by way of issuing a public notice. The TCTA also states that any exercise of Henry VIII powers by SI would in any event have to be subject to the ‘made affirmative’ procedure (whereby the SI must be approved by the House of Commons within 28 days or it ceases to have effect), whereas the Cross-border Trade (Public Notices) (EU Exit) Regulations 2019 were laid under the ‘negative’ procedure. (See footnote). Footnote Negative SIs become law on the date stated in the SI unless either House annuls (stops) them within a fixed 40-day period. SIs which are subject to the affirmative procedure are scrutinised by the Joint Committee on Statutory Instruments and then by a Delegated Legislation Committee and must be approved within a specified period or they cease to have effect. About the Public Law Project PLP it takes no position on the decision to leave the EU – its work seeks to uphold the rule of law and to ensure that Parliament is appropriately sovereign. 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.PLP’s current priorities are to:Promote and preserve the Rule of LawEnsure fair systemsImprove access to justice Legal Team PLP was represented by its Deputy Legal Director, Sara Lomri, and by Tom de la Mare QC, Kieron Beal QC and Daniel Cashman of Blackstone Chambers Contact information Web: https://publiclawproject.org.uk/ Tweet: @Publiclawprojct Email: l.robins-grace@publiclawproject.org.uk Call: 07808 159200