In the lead up to the EU referendum vote last June, and in the months that have followed, it has been stimulating to witness so many people talking about politics, especially British parliamentary sovereignty. This sovereignty has evolved over centuries, but we have a government whose agenda appears to be turning the clock back to the time of Henry VIII.
In 1539, that old despot persuaded a spineless Parliament to pass the Statute of Proclamations giving his decisions the same force as acts of the legislature. His fondness for divorces resulted in a shameless and disgraceful constitutional fettering of Parliament. In trying to lead the UK’s divorce from the EU, Theresa May appears to be channelling a monarch who was willing to do anything to get himself out of the tight spot he had put himself into.
My case about the royal prerogative was always about so much more than Article 50 and Brexit. It was about making sure we didn’t turn the constitutional clock back 400 years and find ourselves back in feudal days where powerful overlords could do whatever they wanted.
The government says it needs to resurrect these ancient powers, otherwise the task of acquiring and repealing the thousands of regulations, laws and edicts from Brussels will be impossible. So to ensure a smooth process of leaving the EU, the task is likely to be undertaken behind closed doors by Queen Theresa and her most trusted courtiers much in the way Henry VIII went about ruling the country.
Even in 1547, the Tudor king’s law was so unpopular it was repealed not long after he drew his last breath. In recent years, there has, alas, been a creeping Tudorisation of Parliament. Recent examples include the Banking (Special Provisions) Act 2008 which increased Treasury ministers’ powers, the Constitutional Reform and Governance Act 2010 allowing ministers to amend or repeal any prior statute dealing with the civil service, rules on MPs’ expenses.
More recently research by The Hansard Society, an independent body that seeks to promote democracy, found that during 2015-16, ministers used Henry VIII’s powers 96 times in order to amend or repeal primary legislation – laws generally made by Acts of Parliament.
Henry VIII clauses have been called a “constitutional oddity” (House of Lords Constitution Committee, November 2010), but arguably do have a place in our constitution, for example in circumventing the need to obtain parliamentary approval for minor amendments to statutes, or allowing an old and newer act relating to the same area to be updated at the same time. But alarm bells should be loudly sounding. The government’s power grab could be intensified by the Brexit process at the cost of the very thing Brexiteers voted for – parliamentary sovereignty.
People far brighter than me have also been worried by the increased use of Henry VIII powers. In January 2014, the Constitution Unit at UCL published a set of proposed legislative standards for the scrutiny of Bills; including a large number of suggested provisions for addressing the effect of Henry VIII clauses. The Hansard Society’s Director, Dr Ruth Fox said: “There is a very real threat that the Brexit process will empower the government rather than Parliament.”
Ironically, “Taking Back Control” could end in Brexit robbing Parliament of its power. As a transparency and scrutiny activist for nearly a decade, and a stanch believer in parliamentary democracy, the inclusion of Henry VIII powers in the Government’s Great Repeal Bill White Paper fills me with dread.
As the Supreme Court confirmed in my case, the principle of parliamentary sovereignty is a cornerstone of our constitution. As such the question is, where we have weak politicians or weak oppositions, should we revisit Lord Chief Justice Lord Judge’s Mansion House speech in July 2010? In it, he addressed Henry VIII clauses, and urged that they be “confined to the dustbin of history”.
If the government goes unchallenged, due to the enormity of the legislative challenge ahead, the power to scrap or amend laws will reside in the hands of unelected civil servants without parliamentary oversight.
As MPs enjoy the Easter break, I sincerely hope the gravitas of this situation hits home and when they return they challenge the government over its white paper and seek detailed assurances about the intended use of Henry VIII powers. If they do not, it may fall on my shoulders once again to seek judgement from the courts to challenge Mrs May from acting like an medieval power-crazed monarch.