By Sara Joy - Law Student @ Downing College, Cambridge
In 1539, Henry VIII passed the Statute of Proclamations which allowed him to rule by royal decree, bypassing parliament. Judge Sir William Blackstone considered it a statute of “despotic tyranny” and was comforted by the fact it was eventually repealed. Today, this concept exists through Henry VIII powers, which allow ministers to amend or repeal provisions in an Act of Parliament without the need for parliamentary approval. This type of legislation is called secondary legislation and is often a necessity due to the sheer volume of amendments needed to be passed combined with the time constraints of Parliament. However, this type of legislation has harmful constitutional implications which will be explored below.
Henry VIII Powers and Brexit
Brexit has resulted in major upheavals from a legal standpoint as Britain attempts to adapt EU laws and “make them British”. As a result, the EU Withdrawal Act grants ministers Henry VIII powers so that they can amend and replace EU laws. Whilst it is important to adapt the law to changing circumstances and this is the most convenient way of doing so, the inherent danger with granting these broad powers is that they will be used not only to alter minor technical details but to also change the substance, effect and purpose of primary legislation.
Implications of the powers on parliamentary sovereignty
In the UK, there are three branches of government: the executive, legislative (parliament) and judiciary. Parliamentary sovereignty is a key principle of the UK constitution which declares parliament to be the supreme legal authority in the UK which can create, repeal and amend law. By its nature, Henry VIII powers allow ministers to amend and repeal law with minimal parliamentary scrutiny. Thus, from a constitutional perspective, Henry VIII powers are unpopular due to the fact their existence undermines the fundamental principle of Parliamentary Sovereignty.
Regulations to the powers
There are, however, regulations that can prevent the abuse of power that may come from using these clauses. Firstly, a member of parliament can introduce a motion to annul the piece of secondary legislation and thereby strike it down. If it has already been passed, they may introduce a motion of regret to voice their negative opinions on the Act. The problem with this approach is that a motion of regret can’t stop or amend the statutory instrument whilst a motion to annul rarely succeeds due to the fact it is an “all or nothing approach” and so tweaks to legislation cannot be made, the whole amendment would simply be struck down. Considering that, between 1950 and 2015, only 0.01% of the statutory instruments passed were struck down, a better approach is needed. This is where judicial review and the role of courts comes into play. Neuberger PSC sets a limit on these powers in his judgment in “The Public Law Project” case (UKSC 39 [2016]):
“subordinate legislation will be held by a court to be invalid if it has an effect, or is made for a purpose, which is ultra vires, that is, outside of the scope of statutory power pursuant to which it was purportedly made”.
This means courts have the ability to identify the purpose and effect of the original legislation and declare any secondary legislation which doesn’t match the identified purpose and effect invalid. This is an important power granted to courts to ensure that the Henry VIII powers are not abused by ministers to undermine parliament’s initial intentions and so maintaining some form of parliamentary sovereignty.
Further reading:
Public law challenges to “Great Repeal Bill” (Kingsley Napley): https://www.kingsleynapley.co.uk/insights/blogs/public-law-blog/public-law-challenges-and-the-great-repeal-bill
Models of Parliamentary Sovereignty (University of Bristol): https://legalresearch.blogs.bris.ac.uk/2017/12/the-models-of-parliamentary-sovereignty/comment-page-1/
Financial Times Article on Brexit and Henry VIII powers: https://www.ft.com/content/3e667c06-93d4-11e7-a9e6-11d2f0ebb7f0