By Sarah Clarke, Senior Policy and Communications Officer at Unlock Democracy.
What are Henry VIII powers?
Henry VIII powers are one type of delegated legislation that allow ministers to amend or repeal primary legislation - without having to create a new Act of Parliament that parliamentarians must debate and vote on. Henry VIII powers may also be referred to as secondary legislation.
Why are Henry VIII powers needed?
These powers are meant to only be used to make technical or administrative changes, and that’s what the government is arguing they will be used for.
Parliament has a very limited amount of time to deal with a whole host of issues relating to Brexit as well as domestic policy. It wouldn’t be practical for MPs to spend that limited time approving every single change in law where technical or administrative changes are needed. There will be thousands of largely technical changes to make, and if this job was left to MPs they would have virtually no time to debate or deal with other issues.
Concerns about Henry VIII powers
One of the main concerns about Henry VIII powers is the lack of scrutiny and control parliament has over them. This concern is not new or specific to Brexit legislation - campaigners and those in the legal community alike have raised concerns about Henry VIII for years. In 2016 for example, the former Chief Justice of England and Wales Lord Judge, said of Henry VIII powers:
“not one page, not one single page, of gazillions of pages of statutory instruments has been amended… There is no power of amendment. Subject to a tiny limited category, when an instrument is laid before Parliament, whichever House is considering it must take it or leave it.”
Given that parliament can’t amend Henry VIII powers, and are therefore forced into a ‘take it or leave it’ position, the use of these powers unavoidably means that the executive has more power. Lord Judge called for HVIII clauses to be “confined to the dustbin of history” because of their damaging consequences:
“proliferation of clauses like these will have the inevitable consequence of yet further damaging the sovereignty of Parliament, and increasing yet further the authority of the executive over the legislature.”
Henry VIII powers and Brexit
Henry VIII powers have featured in Brexit’s legislative process right from the beginning. Concerns were raised during the passage of the EU Withdrawal Act, the government flagship piece of Brexit legislation, about the sweeping nature of the Henry VIII clauses.
The particular concern about the use of Henry VIII powers in legislating for Brexit is the short time frame Parliament has in which to pass legislation, and the high volume of legislation anticipated. Scrutiny of Henry VIII powers is already very weak, and there are concerns that if Parliament is under significant pressure then scrutiny will be even further weakened, thereby ceding even more control to the executive.
Further reading
Lord Judge’s speech at King’s College London, ‘Ceding power to the executive; the resurrection of Henry VIII’ (April 2016)
Hansard Society, The devil is in the detail: Parliament and delegated legislation, executive summary
Simon Patrick’s publications for the Constitution Society Scrutiny of delegated legislation in relation to the UK’s withdrawal from the European Union (October 2017)
House of Commons Library, The European Union (Withdrawal) Act 2018: scrutiny of secondary legislation (Schedule 7), (July 2018)