92.Paragraph 1 of Schedule 5 sets out the statutory duty of the Queen’s Printer in relation to the publication of retained EU law. Paragraph 2 of Schedule 5 allows a Minister of the Crown to amend the scope of this duty, not by a statutory instrument but by a direction.
93.Amending the law by direction — with no statutory instrument and no parliamentary procedure — is highly unusual. The delegated powers memorandum justifies this on the ground that it is a “limited administrative power”. Even so, to allow Ministers to amend the law by a mere direction, with no associated parliamentary procedure, sets an ominous precedent. Such a direction is what Henry VIII might have called a proclamation. The Statute of Proclamations 1539, which gave proclamations the force of statute law and later gave rise to the term “Henry VIII power”, was repealed in 1547 (after the King’s death earlier that year).
94.The direction-making power should be replaced by a requirement that any changes to the scope of the statutory duty of the Queen’s Printer in Schedule 5 be made by statutory instrument.