Henry VIII clauses

Henry VIII legislation is a pejorative term for laws passed without Parliamentary approval.  The EU has been good at using such powers. Henry VIII sometimes passed laws by proclamation, without reference to Parliament. That is exactly how the EU legislates when it puts through directly acting Regulations. The UK Parliament cannot amend or vote down such laws, but just has to accept them as good UK law. Once we have left the EU there will be  no more directly acting Regulations that Parliament cannot vote down.

Incorrectly some people argue that a Henry VIII clause is a clause in an Act of Parliament which allows government to provide more detail under the Act  by means of Statutory Instrument rather than having to enact further primary legislation. This has been a common practice by governments of all persuasions. Parliament agrees the framework and main provisions of an Act, then allows details like level of charges or dates of implementation to be made by Statutory Instrument. SIs  still need Parliamentary approval. Parliament may  debate any SI it wishes, and can vote them down if they do not suit. Parliament decides when it passes the original primary legislation how much details it is willing to handle at a future date by SI and how much of the detail has to be on the face of the Bill. Any perishable or often changing provision, like a fee or charge level, is often best left to more flexible SIs.

This system has only been extended beyond its desirable limits by substantial legislation required by the EU. Much EU legislation takes the form of a Directive or instruction to the member states to enact laws in line with the Directive. The UK has often done this by means of Statutory Instruments under the power of the 1972 European Communities Act. Large swathes of our environmental, agricultural, trade and many other areas of  law have been put  through by such means. The 1972 Act offered by far and away the biggest extension of the power to government to legislate by SI ever adopted, and it is a power which has been used over and over again since 1972. That will end with repeal of the Act. The government has never been granted the same power to use SIs by non EU Acts.

When Parliament passes the Great Repeal Bill to provide continuity of law as we exit the EU under the Article 50 process it will wish to transfer all existing EU law into UK law, and to allow some future changes to be made by SI where these are tidying up matters. Parliament will not allow the government to create a new fishing policy or a new agriculture policy by SI under the Repeal Act nor will the government demand such power. Once the UK has left the EU and ensured continuity of law, it will then be up to Parliament to decide which areas it wishes to amend or repeal. A new fishing policy, for example, may well  be a priority. That will require a proper White Paper and an Act of Parliament. Brexit is about strengthening Parliamentary and public scrutiny and consent to our laws. Only the EU made law by proclamation ignoring the UK parliament, and only the 1972 Communities Act greatly widened the power to use SIs.

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29 Comments

  1. Newmania
    Posted March 28, 2017 at 5:12 am | Permalink

    Half if us have not given any consent to the only decision that really matters and the people who have lost their jobs or are unable to access services will not be comforted to know that Fishing Policy is given greater scrutiny

    By the way if you were under the impression that Fisherman were going to stop whining , think again. They won’t stop until the seas are dead , never have , never will

    • Duyfken
      Posted March 28, 2017 at 6:31 am | Permalink

      No, it was not half of the nation which “did not give consent …”. The nation as a whole voted for Brexit, this by way of a referendum the terms of which had been agreed overwhelmingly in parliament by our MPs – your and my political representatives. It was always apparent that the result could be tight, indeed why else would a referendum be necessary? Whether anyone suggests a 52/48 split was less than convincing is beside the point; it was a simple binary decision to be made. You may bitch as much as you wish Newmania but the whole nation has spoken for BREXIT.

    • DaveM
      Posted March 28, 2017 at 7:23 am | Permalink

      100% of us never gave consent for hundreds of laws that we never asked for. And 48% is less than half, that’s why we’re leaving.

    • forthurst
      Posted March 28, 2017 at 8:36 am | Permalink

      Actually our fishermen do a very good job of providing food for useless eaters without mentioning names and they will do an even better job when the useless eaters who interfere with their unalienable right to harvest from their ancestral fishing grounds are removed.

    • Denis Cooper
      Posted March 28, 2017 at 8:41 am | Permalink

      I’m certainly not expecting you to stop whining!

    • Leslie Singleton
      Posted March 28, 2017 at 8:51 am | Permalink

      Dear Newmania–You obviously haven’t grasped how voting works–Let me give you an early example that may help you understand, viz I believe there were 135 Judges at Charles I’s trial and they split 68 to 67 (there’s a percentage in there somewhere) in favour of regicide no less, which was, to boot, actually carried out and nigh on immediately. As to our Fishing, I labour under the impression that there was no problem with what they now call “sustainability” till Heath.

    • Ed Mahony
      Posted March 28, 2017 at 9:31 am | Permalink

      The nature of Brexit is that the government needs all the power and leverage it can muster in its negotiations with the EU.
      I voted remain. But now Brexit won, let’s just get on with it. Being in the EU or outside the EU isn’t something sacred. We can make both scenarios work well for us. But what is essential is that we’re all united, and we just let our government get on with it.
      Regards

      • Denis Cooper
        Posted March 28, 2017 at 5:51 pm | Permalink

        Well said.

  2. Lifelogic
    Posted March 28, 2017 at 5:41 am | Permalink

    Indeed. Perhaps when parliament becomes a proper parliament again, rather than a pathetic puppet of the EU (as is has been since Heath took us in without consent) then we can get some more MPs of stature in the house.

    Rather a shame that May is so clearly just a Ted Heath in drag figure or Perhapss even an Ed Milliband in drag, But for the fact she has been forced to move on Brexit by the people voting to restore democracy against her will.

    Central wage controls, endless tax increases, absurd red tape everywhere, bonkers employment laws, expensive energy, government waste and bonkers vanity projects all over, a devaluing currency and an anti jobs and anti business agenda.

    • Ed Mahony
      Posted March 28, 2017 at 9:35 am | Permalink

      ‘rather than a pathetic puppet of the EU’

      – this is just hyperbole that does nothing to persuade Remainers onto your side. Brexit won. You don’t have to keep justifying it! Instead, Remainers should just accept the verdict and get on with it. Whilst Remainers shouldn’t go on about how evil the EU is (it just annoys Remainers) and just try and give Remainers confidence about Brexit by positive arguments about our future outside the EU.
      Regards

      • Lifelogic
        Posted March 28, 2017 at 11:03 am | Permalink

        It would be far more positive were May and Hammond real Conservatives, had some vision and inspired confidence. This rather than imitating Ed Miliband.

        • Ed Mahony
          Posted March 29, 2017 at 9:12 am | Permalink

          Come on Lifelogic.
          Now’s not the time to call other socialists or Marxists or what-not. Let’s ALL get behind Mrs May now, whether Remainers or Brexiteers, so that we get the best deal for our country that we can. And just being ‘united’ is good anyway. I just get so fed up of all the squabbling in our country. If it’s not over the EU, its something else.
          Regards

  3. Mark B
    Posted March 28, 2017 at 7:32 am | Permalink

    Good morning.

    And thank you to our kind host for his explanation of the subject.

    What I like to know is, as soon as this Reform Bill is made law, what happens with regard to both new and existing EU law ?

    Does it still go through the same route as before or, does parliament scrutinise it before passing it ? If the latter can we delay EU laws ?

  4. E.S Tablishment
    Posted March 28, 2017 at 7:52 am | Permalink

    Henry VIII tried more than most to make marriage work. Like the EU project, you’ve just got to know when you are flogging a dead horse. That the whole institution is fundamentally flawed despite your best intentions and effort.

    • Denis Cooper
      Posted March 28, 2017 at 6:02 pm | Permalink

      Or when to make the latest horse (technically, mare) dead …

  5. Denis Cooper
    Posted March 28, 2017 at 8:25 am | Permalink

    Most of those who have sprung to the defence of Parliamentary sovereignty since June 23rd didn’t care two hoots about it before, and most of those who are demanding proper scrutiny of everything the government does now with Brexit weren’t bothered about the mass of EU laws being sent across from Brussels year after year.

    Plus, some of those who are now emphasising the sheer volume of EU laws, and the great difficulty the government will face, and the likelihood that many of the laws derived from the EU will still be around and applying for years previously denied that the EU had much impact at all on our law.

  6. Antisthenes
    Posted March 28, 2017 at 8:36 am | Permalink

    How the negotiations pan out will decide common fisheries policies and the like. In fact a repeal bill if it is to enshrine EU law into UK law will change nothing except the matter of sovereignty. A massive step forward but leaves us in a very ambiguous position and vulnerable to the machinations of the remainers. For instance if the UK leaves with no deal or one remainers will not accept how are we to reconcile the repeal bill with that if MPs block any changes to it. The UK will still be obliged to allow foreign fishermen into UK territorial waters which is just one obligation of many that cannot be changed.

  7. Denis Cooper
    Posted March 28, 2017 at 8:48 am | Permalink

    I expect the government has this in hand, but there really needs to be a proper system whereby ministers give reasonable notice of the laws they intend to repeal and a dedicated committee of MPs goes through the list provided each month (say) and decides which proposals should be allowed without any further ado (the great majority) and which should be referred to the House for further consideration (a small minority). Perhaps that will need a new committee just for that purpose? And likewise in the Lords, as an extra check?

    • Posted March 28, 2017 at 11:06 am | Permalink

      A cross party committee of both Houses might be a very good idea in these circumstances. A carte blanche to the Government is bound to be abused. And dumping mountains of stuff in the library to be passed by SI unless anyone objects is expecting too much of most MPs and the Labour Party.

  8. acorn
    Posted March 28, 2017 at 9:06 am | Permalink

    The standard decision-making procedure for most EU policy areas, involves joint adoption by the European Parliament and the EU Council of Regulations, Directives and Decisions (Article 294 TFEU).

    Neither the European Parliament or Council, may adopt the legislative act alone. The Commission is in charge of submitting the proposal for a legislative act, to the European Parliament and the Council. An EU “Bill” goes through the EU parliamentary system in a remarkably similar way to a UK Bill.

    There is actually less “Executive” dictatorship powers in the EU, than there is in Downing Street.

    • Denis Cooper
      Posted March 28, 2017 at 6:21 pm | Permalink

      There are cases where the Commission had delegated power to make regulations off its own bat, Article 290 TFEU:

      https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/228848/7310.pdf

      • acorn
        Posted March 29, 2017 at 7:53 am | Permalink

        290 TFEU is basically the same as the Statutory Instrument procedure in the UK. The European Parliament or the Council can revoke the delegation.

        • STM
          Posted March 30, 2017 at 2:58 pm | Permalink

          Point well made. I would say that the powers which the UK government will now be exercising to put EU law into domestic law are far more frightening and power-wielding than anything the EU has ever done, which was, as you say, through a proper legislative process involving three EU bodies.

  9. Alan
    Posted March 28, 2017 at 9:27 am | Permalink

    According to Wikipedia Directives require the consent of the Council and the EU Parliament. They then require the member countries to pass them into law. So it’s hardly government by proclamation.

    Reply For the UK a Regulation is a proclamation. A Regulation, unlike a Directive, is directly acting. Do try and understand how the EU works if you like it so much.

    • Denis Cooper
      Posted March 28, 2017 at 6:25 pm | Permalink

      Maybe he wouldn’t like it so much if he did understand how it works … but to be fair in June 2008 the French Foreign Minister Bernard Kouchner said:

      “No one understands the institutions and no one’s interested. No one understands anything, not even me.”

      That was part of his explanation for why the Irish had voted against the Lisbon Treaty in their first referendum.

    • Alan
      Posted March 28, 2017 at 9:21 pm | Permalink

      I do try to understand how the EU works, but I can’t find any reference to the Commission being able to issue Regulations without the approval of others. I did find that in some very restricted situations it could issue Directives, but there only seem to be two.

      The Council seems to be able to issue Regulations, but that is the decision made by the nations taken by democratically elected politicians who are answerable to their parliaments. That seems quite a way from Henry VIII powers.

      I’m not arguing that the EU legislative process is without fault, but it isn’t that bad, and it does not seem to allow the exercise of arbitrary power. It’s more constrained than the UK’s Royal Prerogative, for example. I’m not sure how many countries have anything like the Royal Prerogative (which appears to be an Henry VIII power in some areas, although I had never thought of it like that before).

  10. NA
    Posted March 28, 2017 at 3:43 pm | Permalink

    I feel every PM we have is a big government extremist desiring a police State and our only hope is Mr Redwood and people like David Davis holding them back. The European Arrest warrant for a start is totally unnaceptable in principle and principle does matter Mrs May as does history, our history.

  11. Jerry
    Posted March 29, 2017 at 6:29 am | Permalink

    Your analogy is as much an argument for welcoming Scexit (Welsh or or even NI independence…) with open arms as it is Brexit. In fact it goes further (seeing that you have brought the Middle Ages into the debate, and the lack of a popular democratic mandate) as it could also be apply to all the kingdoms that make up the Kingdom of England – independence for Wessex is what I say, why should I have to pay my taxes to London and obey the laws of London when they should be applied from Winchester…

  12. NA
    Posted March 29, 2017 at 3:10 pm | Permalink

    It is not Hegels dialectic by the way (Isaiah 45:7).

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    John Redwood won a free place at Kent College, Canterbury, He graduated from Magdalen College Oxford, has a DPhil and is a fellow of All Souls College. A businessman by background, he has been a director of NM Rothschild merchant bank and chairman of a quoted industrial PLC.

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