What are the so-called ‘Henry VIII Powers’ and why are they a controversial part of the Brexit Debate?

As part of her accession to the European Economic Community (now the European Union) on 1st of January 1973, Britain agreed to accept the supremacy of European Community Law over UK Law. This was later further confirmed by the Factortame Case of 1989.

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The Law Lords, then making up the supreme court of the United Kingdom, confirmed the precedence of EU Law over UK Law in the Factortame Case of 1989.

Since Britain joined the European Union thousands of EU Directives and Regulations have been implemented into UK Law. Indeed, since the EEC was formed in 1958 it is estimated that there have been over 80,000 items of EU Law, most of which has had to be incorporated into the legal system of the Member States. In Britain, some of this implementation has been done by Primary Legislation (Statute Law). However, most has been done by Secondary Legislation (Statutory Instruments). The statistics below illustrate this:

  • Between 1993 and 2014, 231 Acts of Parliament were passed that implemented EU obligations.
  • Between 1993 and 2014, 4,263 Statutory Instruments were enacted that implemented EU obligations

Source: House of Commons Library

These are both significant figures, especially when it is considered that they only run back to 1993, many Acts of Parliament and Statutory Instruments relating to the EU will predate these. EU Directives and Regulations may be wide-ranging, dealing with issues as diverse as food packaging standards and privacy standards.

What this means is that whilst the question of the ballot paper the June 2016 Referendum was quite straightforward, the complexity of putting into practice its results is hard to comprehend and is also very controversial, due to the Government’s plans to use so-called “Henry VIII Powers”.

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The English King of 1509-1547 has been mentioned in debates over Brexit more than most would have imagined!

The Henry VIII powers are named after the English King who reigned from 1509-1547. In 1539 the Proclamation of the Crown Act was passed. This gave any proclamation by the King the full force of law. In the post-reformation period, Henry VIII wanted to ensure he could quickly quell any Catholic rebellion in England.

Contrary to popular belief, laws are not passed by Parliament alone and never have been. A Law is simply an accepted action that regulates the Government. Therefore, in the UK Law is passed in a variety of ways:

Statute Law – This is law passed by Parliament. As Britain accepts the doctrine of parliamentary sovereignty, this is the supreme form of Law in the UK.

Common Law – This is also known as ‘Judge Made’ Law. These are legal decisions made in court cases that are then used in future cases, thereby forming legal precedents.

Royal Prerogative – The Prime Minister retains the power to act without the direct consent of Parliament through her use of the Royal Prerogative. These are powers that traditionally belonged to the monarch but are now exercised by Ministers. These are a legacy of absolutist monarchs, like Henry VIII.

Statutory Instruments – Government business is far too complex for every single decision that needs to be made going through the legislative stages of the House of Commons and House of Lords. Therefore, the Government has the power to implement legislation through Statutory Instruments that have been pre-authorised by Parliament.

As outlined previously, Britain’s membership of the European Union is made up of thousands of pieces of legislation, some of it Primary (Statute Law) and some of it Secondary (Statutory Instruments). The job of the Government and Parliament post-Brexit is to decide which of these thousands of pieces of law need integrating into UK Law, which need to be amended to fit into UK law and which should be repealed entirely from UK Law.

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Whilst Ministers make the policy decisions on what to include, it is Senior Civil Servants like Cabinet Secretary, Jeremy Heywood, who have the unenviable task of transposing EU Law into UK Law.

To do all of this via Statute Law would be a mammoth task and would tie up Parliament for years to come. The Government therefore propose making many of these changes using the so-called Henry VIII Powers – via Statutory Instrument – not via full parliamentary procedures. This would enable it to be done efficiently and quickly. However, it would also mean it could done without the level of parliamentary scrutiny that many think is necessary. Currently, the Conservatives do not have a majority in Parliament and rely on the support of the DUP in a ‘confidence and supply deal’. Any attempt to circumvent Parliament in implementing Brexit is unlikely to be easily accepted – especially as one of the prime selling points for Brexit was bringing sovereignty back to the UK Parliament.

The issue of the Henry VIII Powers, is a good example of the arguments over the reality of where sovereignty lies in the British political system. Is Parliament truly sovereign, or is there, as Lord Hailsham said, an elective dictatorship?

 

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