The term ‘Henry VIII clause’ originates from the infamous King himself who in 1539 published a ‘Statute of Proclamations’. This Statute granted King Henry the power to avoid legislating through Parliament. Instead, he had empowered himself to make statutory changes by public announcement. These clauses currently exist to enable the UK government to use secondary legislation to amend primary legislation. In contrast to King Henry’s power-hungry motivations, such clauses are used today as a sensible means of avoiding the whole, rather lengthy Parliamentary approval process. Parliamentary scrutiny is an option which can be called upon if felt needed but will not become a necessary burden where ministers are more than qualified to make the right amendments independently. However, it could be argued from an orthodox, Dicey viewpoint that such clauses are further evidence of the erosion of Parliamentary sovereignty. For surely only Parliament has ‘the right to make or unmake any laws’.
How could the Henry VIII clause impact Brexit?
‘Excessive’ is the word that has been most commonly used when describing the powers granted to ministers by the European Union (Withdrawal) Bill. This is the Bill which will aid the transferral of EU law into UK law as Brexit becomes a reality. Controversy surrounds the ability to rewrite laws during the exiting process.
The European Communities Act 1972 (ECA) is the Act that Parliament used to recognise the UK entering the EU whilst granting EU law supremacy over domestic law. Within the ECA is one of the largest Henry VIII clauses. Section 2 (2) of the ECA allows UK ministers discretion on how EU directives are implemented within the UK on the condition that the intentions of such directives are met. Post Brexit, the executive wants to reverse the Henry VIII clause to turn EU laws into domestic laws. This is a logical approach. There are also fears about the ‘negative procedure’ whereby a statutory instrument will automatically become law unless there is an objection. Thus, this procedure in addition to the reversal of the Henry VIII clause, can be said to reduce the possibility of sufficient scrutiny whilst granting ministers excessive powers.
Despite these fears, the Withdrawal Bill lays out limitations upon the use of Henry VIII powers. It is also unlikely that the government would make corrections or changes to laws being transferred into UK law without it being wholly necessary. Misuse of the power to change laws for the sake of making them more politically palatable would surely leave the government open to having their powers limited whilst public trust would rapidly disappear. The judiciary will also ensure that both the rule of law and human rights continue to be recognised in UK courts.
Brexit negotiations continue, whilst the future of the UK come March 2019 and beyond remains uncertain. It is however imperative that both government and Parliament reach agreement. Remaining in conflict as time races away will not aid the UK in reaching the best possible scenario for all. Henry VIII clauses have long been a part of the political and legal landscape. Despite these clauses stirring up controversy well before the Withdrawal Bill, they have not been abolished. Hence, the choice now is a radical overhaul and removal of these powers conferred on ministers or compromise. There are of course positives to the efficiency of the clauses and in Parliament retaining sovereignty. Consequently, compromise appears to be the most viable option at this stage.