This article was written for Conservative Home.
For the next few weeks the fate of the government’s Brexit Bill, Brexit itself and even the government could hang on the arcane issue of Henry the Eighth clauses in the European Union Withdrawal Bill. Some of my former Parliamentary colleagues – though not, I suspect, their constituents – are getting worked up about it. Before doing anything drastic they should remember the advice Anne Boleyn’s mother gave her daughter – “this Henry the Eighth is not worth losing your head over”.
The label “Henry VIII” refers to that arrogant King’s short-lived Statute of Proclamations giving him power to pass laws by decree without any Parliamentary scrutiny. A Henry VIII clause is more modest. It is a clause in a Bill which gives the government power to alter Acts of Parliament while allowing Parliament no right to amend those changes, restricting scrutiny and often avoiding any vote. The government’s Bill contains Henry VIII clauses for reasons explained below.
It is paradoxical that they should be raised as a concern by pro-Europeans in the context of what the government calls its ‘Great Repeal Bill’. After all, the purpose of this Bill is to repeal the greatest Henry VIII clause in our history. For 44 years the European Communities Act 1972 which implemented our membership of the European Community has meant EU legislation has become binding on UK citizens with no power for Parliament to amend or reject it. Once a law was agreed in Brussels, even if every single British MP voted against it, it still became law.
The Repeal Bill will end that. But to ensure certainty and continuity when we leave, the Bill will also transfer all existing EU laws into UK law so that the day after we leave the EU our laws are unchanged. We will subsequently be able to amend or repeal any EU laws we are unhappy with – but only by going through normal Parliamentary procedures. Both Leavers and Remainers accept that this is a sensible way of ensuring a smooth departure which gives business and individuals certainty.
Inevitably, some EU laws contain references to EU institutions which will no longer be relevant, post Brexit. For example, EU regulations may require certain businesses to seek approval from, or report to, an EU body. In future, they will have to deal with an equivalent UK body. So, transposing laws word for word would leave some laws ineffective. The Repeal Bill therefore includes Henry VIIIth clauses enabling it to amend existing EU laws by secondary legislation to make this sort of technical change. This will require between 700 and 1000 such changes. Ministers can only use that power where the existing law would otherwise be ‘defective’. As the notes to the Bill say “deficiencies, must arise from the UK’s withdrawal from the EU. The law is not deficient merely because a minister considers that EU law was flawed prior to exit.” If Ministers used it to change EU laws they do not like – as some have suggested is a danger – the Courts would strike such changes down.
Most parliamentarians, not least euro-sceptics, are reluctant to use Henry VIII clauses if avoidable. Nonetheless, they are not uncommon. In the last session they were used 98 times to alter primary legislation and 96 new Henry VIII clauses were enacted.
Critics have not suggested any practical alternative way of making the necessary technical changes to EU laws to make them workable post-Brexit.
What is new in the debate is the sudden enthusiasm of some pro-Europeans to protect the power of Parliament to shape our laws. In many cases this concern is quite genuine. One happy consequence of ‘taking back control of our laws’ is that it puts the focus back on our own democratic processes which for so long have been side-lined. In other cases, not least the Labour Front Bench, the motives for raising Henry VIII clauses are more cynical. It is difficult to see how concern for Parliamentary scrutiny can be reconciled with a desire to remain in the so-called Single Market. That would mean we would be subject, via a power that would have embarrassed even King Henry VIII, to a continuous flow of new laws over which neither Parliament nor the executive had any influence let alone control.
Of course, our pro-EU media – notably the BBC ignore this flagrant inconsistency. I offer a bottle of champagne to the first reader reporting a BBC interviewer challenging a Euro-enthusiast about why they are concerned about Henry VIII clauses in this Bill but are happy with the father of all Henry VIII clauses in the Act it repeals?