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Henry VIII Powers: A Recipe For Disaster?

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Sir William Blackstone considered it a statute of “despotic tyranny” and was comforted by the fact it was eventually repealed.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.