Within the United Kingdom, law takes two forms: primary legislation and secondary legislation. The first of which is the law which you’re undoubtedly aware of, i.e. Parliament debates the act and once a majority agrees on its form, it becomes a statute of Parliament. These acts, however, can often form but an outline that requires more specific, secondary legislation to make it a complete legal entity. As such, primary legislation will regularly bestow upon ministers the ability to create statutory instruments (secondary legislation) – but as secondary legislation these are not treated as an entirely new act of Parliament. Thus, Parliament’s scrutiny of the instruments is limited. Specifically, the instruments can only be annulled or supported by both houses of Parliament, they cannot be amended themselves. To add to that, annulments are rare, not tending to happen unless they gain wide support from members. ‘What’s the issue?’, you might ask, ‘The government have been elected the government!’. This might be so, but it is central to the mechanics of parliamentary democracy that whilst the government possesses a degree of executive power, the opposition has a right to represent the voices of its constituents and debate the law of the land.
However, there is a breed of Statutory Instrument that excels in relevance: so-called Henry VIII Clauses (named after the power granted to Henry VIII under the Statute of Proclamations 1539). These allow for cabinet ministers to amend primary legislation without any parliamentary scrutiny whatsoever. A shudder may well have just shot down your spine, ‘is it the end of the road for democracy?’ you ask yourself. You see images of Theresa May and Philip Hammond grinning mischievously like hyenas in a dark cabinet meeting by the fire, as they plan the next of a series of oppressive, autocratic instruments. As frightening and strangely plausible an image this might be, allow me to attempt to bring the situation back to some objectivity and contemporary comparison.
You will, no doubt, have heard of the Great Repeal Bill or the European Union (Withdrawal) Bill. David Davis’ creation aims to do three things: repeal the act of Parliament which entered the UK into the EU; transfer EU regulations into UK law; and grant ministers the power to amend such regulation under Henry VIII clauses. What is the motivation behind these three actions? Well, whilst we have been a member of the EU, regulations have been passed in Brussels which have been directly applicable in the UK as law. Thus, there are gaps in the UK’s legal body where the EU has legislated on issues and the UK hasn’t. To fill these gaps, the repeal bill proposes that we shall ‘copy and paste’ them into our law, and then they should be continually edited by ministers in order to make them completely compatible. Apart from the resounding irony that those regulations made in Brussels which the leave camp so desperately wanted to escape will now be in our own legal body itself, there is a pressing issue here. The presence of Henry VIII clauses in the Great Repeal Bill (one of the most constitutionally relevant acts of legislature the UK will see) has brought into the scope of public debate the position of the clauses themselves.
So how has David Davis, the Brexit secretary and architect of the repeal bill, defended this problematic section? In the way that Statutory Instruments themselves have typically been defended, by responding that the time it would take for amendments to primary legislation to be fully debated by both houses of Parliament is an impractical obstacle for more important issues with which the legislative palace is concerned. Since the EU legislation passed since 1972 will, for example, often refer to the UK as a member state or to institutions to which the UK will no longer be affiliated, it is necessary to change the legislation in the interest of congruency. A report by Thomson Reuters in March 2017 found that no less than 52,741 pieces of EU legislation have been passed since 1990 alone. To edit so many documents would be impossible if Parliament as a whole were involved, thus Davis has proposed Ministers should create Statutory Instruments to iron out the creases in the legislation.
The power granted to ministers is addressed in two sections of the bill. Section 7, dealing with aforementioned ‘deficiencies’ in EU law stipulates that the secondary legislation created cannot be for certain issues such as increasing taxation or creating a relevant criminal offence. Section 9, however, grants ministers comparatively more power to make provisions in law which they deem requisite for a smooth exit of the union.
Despite these constraints, and the bill often acknowledging the need for a ”balance…between the need for speed and the need for scrutiny”, many have criticised the bill for handing too much power to the ministers and their command of secondary legislation. In fact, at the time of writing, the labour party is threatening to vote down the bill with respect to its relationship with secondary legislation.
So, should we be worried? Are we right to envisage the cabinet planning a covert assault on the integrity of democracy? The truth is, probably not. Whilst in principle the Henry VIII clauses can seem archaic and unfair, it is reasonable to introduce Statutory Instruments in this situation given the monumental task of converting EU regulation into UK law. Furthermore, the bill proposes that the instruments should be scrutinised by parliament, where annulment is possible, and in more contentious cases where a vote of agreement is required.
I suspect that Theresa May’s surprise election was, in part, planned (in the hopes of gaining a large majority) to make these powers seem increasingly in line with the consensus of the electorate. In the lack of a definitive majority, though, the executive power of the cabinet seems a tenuous, fragile one at best, especially in light of the recent instability caused by leaks and smears from senior ministers.
Over the next few months, expect Henry VIII, David Davis and the state of democracy to be a key part of the ongoing Brexit debate, but try to see through the tabloids’ attempts to portray the Great Repeal Bill as a Weapon of Mass Destruction, and recognise as well its necessity given the context.