In the United Kingdom, law can take two forms: primary legislation or secondary legislation. While Parliament controls primary legislation, ministers control secondary legislation. Primary legislation concerns “bills” which Parliament can turn into “acts” through debate and vote. Secondary legislation enables ministers to essentially “do their own thing” within the parameters that primary legislation may set out. Parliament can broadly authorise a use of secondary legislation, but Parliament cannot specifically amend secondary legislation.
The “Henry VIII Clauses” constitute a vital way of going about secondary legislation. Henry VIII, in short, wanted to seize the Pope’s title (as Supreme Head of the Church of England), but he needed both primary legislation (e.g., the Act of Supremacy) and secondary legislation (granted to him by the Statute of Proclamations 1539) to support him. Secondary legislation allows cabinet ministers to amend primary legislation without any parliamentary scrutiny whatsoever. A shudder may well have just shot down your spine: “is this the end of the road for democracy?”, you ask yourself. You may 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 assaults, usurping the primary will of Parliament through their underhand secondary legislation. 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 have probably heard of the Great Repeal Bill or the European Union (Withdrawal) Bill. David Davis’ creation aims to do three things: first, repeal the Act of Parliament which entered the UK into the EU; second, transfer EU regulations into UK law; and third, grant ministers the power to amend such regulation under Henry VIII clauses. What is the motivation behind these actions? Put simply, there are gaps in the UK’s legal body where the EU has legislated on issues and the UK has not. To fill these gaps, the repeal bill proposes to essentially ‘copy and paste’ regulations into our law, and then allow ministers to continually edit them in order to make them completely compatible. Ministers will do this – you guessed it – through secondary legislation. 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 Bill has brought into the scope of public debate the place of the clauses themselves.
How has David Davis, the Brexit secretary, and architect of the repeal bill, defended this problematic section? Well, it may waste Parliament’s time to debate extensively every aspect of the bill, shunning other issues with which the legislative palace should be 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. Therefore, Davis has proposed that ministers should create statutory instruments to iron out the creases in the legislation.
Despite opposition rhetoric, Davis’s Bill itself does go some way to restricting the ministers’ power. When ministers are dealing with ‘deficiencies’ in EU law they may not legislate on, for example, increasing taxes or creating a criminal offence; the Bill also acknowledges the need for a “balance” between “the need for speed and the need for scrutiny”. Ministerial power will be, to some degree, limited.
I suspect that Theresa May’s surprise election was, in part, planned (in the hopes of gaining a large majority) in order to make these powers seem increasingly in line with the consensus of the electorate. In the absence of a Conservative majority, though, the executive power of the cabinet seems a tenuous and fragile one at best, especially in light of the recent instability caused by leaks and smears from senior ministers. In the coming months, the Brexit storyline could take any path, but it is fair to say that David Davis walks a tightrope, and carries with him great responsibility not only for our future but for the preservation of democracy. If he goes too far, he might be harking back to a bygone age of tyrannical monarchs, forcing us to ask - is David Davis the new Henry VIII?
Original Image by Ashlea Phillips.