One wonders whether the outrage over the “Great Repeal Bill” has been a little overdone. The White Paper explaining how the UK Government will handle all the mass of EU legislation that needs to remain in place after Brexit notes that much of it, while remaining in force, will need “correcting” by delegated legislation – powers given to ministers by Parliament.
The White Paper explains that this correcting will simply be to ensure the laws, all of which will be transposed into UK law, can continue to operate rather than become ineffective upon repeal of the European Communities Act 1979. Critics fear the Government will go further than this and use delegated legislation, or “Henry VIII powers”, to actually change or abolish laws and rights derived from the EU.
But this post is more concerned about whether the respectable name of King Henry has been blackened by being dragged into this sordid modern row. “Henry VIII powers” are quite often included in parliamentary legislation (increasingly and controversially of late) to allow a minister to later change the statute by issuing a statutory instrument.
The name (or nickname, really) of the powers has been mistakenly taken rather literally by some parts of the media with suggestions that the powers, legitimately given by a democratically elected Parliament, are actually derived from the despotic Henry VIII himself, that the Government has dredged up some arcane pre-democratic power and is about to swing Henry VIII’s very own axe to abolish EU law. Thus the Evening Standard: “Ministers defended so-called Henry VIII clauses dating back to 1539”. CNN took a similar line: “The British government wants to invoke controversial powers that date back 500 years to the time of King Henry VIII.” The Independent called them “ancient powers”. This is simply untrue.
The Mirror went the whole hog and dressed Britain’s Prime Minister Theresa May as Henry VIII and comparing her to “six-wives king – who used his ‘divine right’ to defy the Pope”, adding: “Mrs May believes she can act with the ‘royal prerogative’ – the Queen’s centuries-old direct power channelled through her.”
Wrong, wrong, wrong. Admittedly, Mrs May isn’t averse to using the Royal prerogative in Brexit matters – that, after all, was what the big Brexit court case R(Miller) v Secretary of State for Exiting the European Union was about. But she lost. “Henry VIII” powers do have their origin in prerogative powers since they are simply one form of secondary legislation, all of which is derived from prerogative but subsumed within a democratic parliamentary system.
But the reason the Henry VIII powers have that nickname is because, rather than powers to make incidental changes over time, they give the relevant minister wide powers to amend and even repeal the parliamentary Act to which they are attached (though still with some parliamentary oversight and even a veto). This is not unlike (but not the same as nor derived from) the powers Henry VIII got his Parliament to give him – indeed, in 1539.
The Statute of Proclamations (“that proclamations made by the king shall be obeyed”) is regarded (or certainly used to be) by some as the most significant example of Tudor despotism, the king’s grasping of powers to himself.
The new law declared that proclamations, laws declared by the king independently of Parliament, would have the weight of parliamentary acts. On the face of it this is a dangerous power to give one man. But some wiser historians regard this as something of a restraining act that put a limit to the prerogative power of issuing proclamations.
According to the 1539 statute, for example, the king and his “liege people” (owing a duty to him – his executive officers) could not remove people’s property or end people’s lives on the basis of a proclamation nor repeal common law or statute, nor “laudable customs of this realm” – except where the king was seeking to deal with heresy. So, far from extending the monarch’s powers, the Statute seeks to define and explain their limits since, hitherto, monarchs had been happy to issue proclamations and require them to be obeyed – but with no clear authority given the existence now of a law-making Parliament.
There is inherent in the Act a nod to the importance of that Parliament: the touchstone of what is regarded as real and effective law is parliamentary statute. So proclamations must be “obeyed, observed and kept as though they were made by act of parliament”. Autocratic it might be, yet this act acknowledges Parliament as the highest source of law – quite a concession in the earliest centuries of England’s Parliament when it was still trying to assert itself.
Why were such powers needed? Parliament did not sit all year or even every year in those days, so issues might arise with no Parliament to handle them. On one occasion in 1535 when Parliament was not sitting:
“it became necessary to prohibit the export of coin, a common administrative measure and the sort of thing for which proclamations were designed”, since it was acknowledged they could be used for emergencies “which do require speedy remedies and that abiding [waiting] for a parliament in the mean time might happen great prejudice [damage] to ensue to the realm”.
An emergency economic measure could not wait for the return of Parliament – yet Thomas Cromwell (a sceptic on monarchical power despite his loyal service to Henry) balked at simply issuing a ban in the king’s name and instead sought out precedents. His lawyers found a statute from Richard II’s time that allowed such a proclamation.
Cromwell asked what would happen “if there were no law nor statute made already for any such purpose”. The lord chief justice insisted a proclamation could be issued “of as good effect as any law made by Parliament”. Clearly this did not satisfy Cromwell so he promoted the 1539 statute, which, paradoxically, underlines the acceptance of the superiority of parliamentary law-making while seeking to pass powers to the king.
So, pace the Mirror, far from using his own powers to “defy the Pope”, Henry actually needed Parliament to unseat papal supremacy in England. A king could not do it alone by declaring it to be true since a king had no such authority. After all, where else did he get his authority but from the Pope himself, as representative of God? Cromwell understood this and had to find a new authority to declare the king’s supremacy in England, and he found it – or constructed it – in Parliament and in statutes passed by Parliament.
Having established an early form of parliamentary supremacy, at least on a theoretical basis, Cromwell needed to get a certain amount of executive power back for the King through the 1539 Act. As it happens, in 1547 during the reign of Henry’s son Edward (a child king under the control of the reforming Duke of Somerset as “Protector”) the Statute of Proclamations was repealed along with Henry’s treason acts, deemed to be excessively “strait [strict], sore, extreme and terrible”.
Nevertheless subsequent monarchs, Mary I and Elizabeth I, continued to issue proclamations, and under James I the matter became one of real conflict with Parliament. Since when England has had its civil wars and Glorious Revolution and its Walter Bagehot making clear that Parliament is supreme. And hence Theresa May does not and will never have the powers of Henry VIII to change EU law when it is enacted by Parliament into British law.
• Lord Judge criticises “Henry VIII powers: Mark Elliott
• Lord Judge’s critique is here
• House of Lords on delegated legislation here
• See links to more constitutional history below
Note on secondary legislation and the powers the Government seeks
The Government intends to seek powers from Parliament to “correct” (but not amend or repeal) EU law once it is all turned into UK law in the “Great Repeal Bill”. It explains that only a small proportion of EU law (such as that already in UK legislation) could continue without such correcting: “There will be law which will, upon leaving the EU, no longer work at all and which will need to be corrected to continue to work”.
As such, the powers it wants aren’t even, strictly speaking, “Henry VIII powers” of the sort often attached to modern Acts of Parliament. Most such Acts may require incidental amendments that need not go through a full parliamentary procedure (they are made by statutory instrument which “sit in Parliament” for MPs and Peers to review and even veto but not amend. Some may require a vote in Parliament (details of the positive and negative procedures for statutory instruments can be viewed here).
“Henry VIII clauses” go further and allow wholesale changes to Statutes by ministers under a similar procedure of limited parliamentary oversight. But what the Government says it is asking for in the “Great Repeal Bill” goes nowhere near this. It wants power to “correct” the EU legislation so that it continues to work in a purely UK context. Otherwise, the White Paper notes:
“There will be gaps where some areas of converted law will be entirely unable to operate because we are no longer a member of the EU. There will also be cases where EU law will cease to operate as intended or will be redundant once we leave.”
References to EU law and obligations will have to be changed, for example, and the influence of the Court of Justice of the European Union removed (though not retrospectively – previous CJEU rulings will remain as part of the new repatriated legal system).
So what’s not to like? Given, for example, that the pro-EU former Labour Lord Chancellor Lord Falconer demanded a few months ago that Parliament must pass a piece of holding legislation that says not a single EU right is lost at the point of exit from the EU … well, that’s just what he has got. And the “correcting” powers come with a further safeguard taking them far from “Henry VIII powers”, however you define them: a “sunset clause” which means they fall once all EU law has passed satisfactorily into UK law.
One might even go further. The commitment to enshrine EU law in UK Statute actually sets Britain up rather nicely for the softest of soft Brexits if that is what is finally agreed. Britain would be out of the EU (as per the referendum result) but its laws would be in conformity with the EU for a continuing close relationship (with some extra tweaks, for example to allow continued European Court judgments to still apply). This is not to say that’s what will happen – but it’s very handy if it did….
Note: David Allen Green in the FT is sceptical on the White Paper promises, saying:
“But one problem with this approach is that one person’s technical amendment is another person’s policy shift – especially in areas such as environmental protection. Another issue is that the use of delegated powers can be challenged in court in a way primary legislation cannot be. What the government gains in convenience it loses in legal exposure. A third problem is that wide discretionary powers for Whitehall, even on supposedly technical matters, will mean a largely unaccountable power grab from Westminster.”
• Rules on subordinate (secondary or delegated) legislation are in the Legislative and Regulatory Reform Act 2006 Section 4. Statutory instruments are described in the Statutory Instruments Act 1946 especially at Section 5.
Other pieces on constitutional history:
• 1297 and All That: How to Impress a Brexit judge
• Magna Carta: Not such a great charter
• How Tim Yeo buried the Seven bishops
• Sir George Young, Baronet, and the original cash for honours scandal
• Treason in history (and Julian Assange)
• Harry Potter’s misleading case of the law
• Torture: a history of hypocrisy
• Holy alliance to capture the British constitution
• Ken Clarke gets his Henry VIII clause into judicial appointments
[Note: Elton, The Political Creed of Thomas Cromwell in Fryde and Miller p.206].