There has been debate about the government’s use of ‘Henry VIII’ powers. (Photo by Imagno/Getty Images)
Henry VIII gave us the original Brexit: he took England out of the Church of Rome and established the highly distinctive part-Catholic, part-Protestant national Church of England. The 1533 Act in Restraint of Appeals severed England from foreign legal jurisdiction, solemnly declaring that: “This realm of England is an empire”, a sovereign kingdom owing allegiance to nobody, be they Pope, Emperor or anyone else. Henry had truly ‘taken back control’.
Now, as the EU Withdrawal Bill makes its difficult way through parliament, there is talk of the government using ‘Henry VIII’ power clauses, not to behead anyone on Tower Hill, but to take power away from parliament. What on earth is going on?
What are Henry VIII powers?
‘Henry VIII powers’ allow the government to change an act of parliament, or even to repeal it, after it has been passed and without the need to go through parliament a second time. The clauses take their name from the 1539 Statute of Proclamations, which allowed Henry VIII to rule by royal proclamation, ie by decree. Henry VIII powers are intended simply to help government deal with issues that need a quick response, but they are always controversial, and never more so than in this age of Brexit.
But I thought only parliament could make the law?
That is a common misconception. There are many ways in which laws can be made without going through parliament.
Orders in Council, for instance, which are issued by the Privy Council (though in practice that means the government) have full force of law. The royal prerogative used to be exercised by the monarch alone, as when Charles I ruled without parliament for 11 years (1629-40); nowadays it has largely devolved to the prime minister and can be used to make law without the need to go through parliament.
Acts of parliament can themselves authorise the government to make changes or issue orders through what is termed ‘secondary legislation’, such as ‘statutory instruments’. Many details of legislation, like NHS and National Curriculum provisions, or changes to the coinage, are issued by Order in Council or statutory instrument.
When have Henry VIII powers been used?
Tudor monarchs certainly ruled by decree when they wanted to, though they had to be careful: Elizabeth I’s use of the prerogative to grant monopolies caused a celebrated showdown with the House of Commons, which she needed all her charm and charisma to resolve.
The Stuarts ruled by decree too, though without Elizabeth’s gift for getting away with it: Charles I’s non-parliamentary taxation policy prompted the English Civil War and James II’s use of the dispensing power – suspending the application of the Test Act [which governed who was eligible to hold public office] to Catholics – was essentially a ‘Henry VIII power’, and it got him turfed off the throne in 1688 as a result.
Charles I’s decision to rule by decree and implement non-parliamentary taxation policy prompted the English Civil War, says Lang. (Photo by Imagno/Getty Images)
Later, in the 18th century, the American colonists’ case against George III and the British government was essentially that they were altering or suspending the laws that had originally granted their rights as British subjects.
More recently, government use of Henry VIII powers to tighten the law on immigration and asylum seekers in 2002 caused concern that the powers were being used to restrict human rights without proper parliamentary scrutiny. These powers are now scrutinised by a special cross-party committee appointed by the House of Lords.
Why are they important in the Brexit negotiations?
Britain’s membership of the European Union is embodied in thousands of pieces of parliamentary legislation. Some of these are actual laws implementing European agreements or treaties, but some are details in laws about anything from defence spending to the regulation of cheese.
All those clauses in laws and protocols saying that this provision or that design will need to adhere to EU regulations will now need to be changed. Rather than put every single change through the whole parliamentary process, the government is proposing to use Henry VIII powers to make the necessary amendments itself. But how is this to be scrutinised? The opposition claims that this is simply a thin disguise for a naked power-grab by a government without the Commons majority to get its proposals safely through parliament in the normal way.
Who’s right? Henry VIII would doubtless resolve it in his own way, by sending the lot of them to Tower Hill and making all decisions himself.
Dr Sean Lang is a senior lecturer in history at Anglia Ruskin University whose research interests include the development of British constitutional identity from the 16th century onwards. You can follow him on Twitter @sf_lang.