Henry VIII powers and statutory instruments are new terms which have entered the political vocabulary in Britain. This term appears new to the untrained eye, however, a look through the Parliamentary log and website demonstrates that it is indeed an old term and has been around for quite some time. 

These powers or instruments can be defined as ‘instruments made under provisions of acts of Parliament which allow the instrument to change the act itself or other primary legislation.’ The term emerged from the Statute of Proclamations issued by Henry VIII in 1539. These instruments and powers and their potential consequences have been a cause for concern amongst political commentators in Britain since the decision to leave the EU and the presentation of the Great Repeal Bill last year.

As the UK considers itself the leading light in democracy and home to the ‘mother of all parliaments’ it is understandable that there would be concern over the possible exercising of Henry VIII powers. A major reason for this concern is that since the Glorious Revolution of 1688, Parliament has always been considered supreme in relation to the executive, be that the monarch or elected government. Consequently, if a tool exists where the government can bypass the normal procedures for scrutiny and debate, then they are most likely going to take that option.

Indeed, since 1979, it appears that the House of Commons has not rejected a statutory instrument whatsoever, whilst the House of Lords has done so only six times. This suggests that a government with a clear majority in the Commons can often override normal convention and force through a policy it wants, without worrying about responding to the traditions established in the constitution, leading to questions on the effectiveness of Parliament as an institution in of itself.

A further concern can emerge when one considers the current situation. Britain is leaving the European Union and venturing into unchartered territory. The government has stated several times that it means to translate as much of EU law into British law as it can. Whilst this is a commendable policy to hold, it does bear the concern that something or lots of things could be missed, considering the vast quantity of legislation present. Human rights and working rights could be in danger of being violated. 

It can be argued that confusion might arise as to whether or not precedents set by the European Court of Justice would hold sway over UK law and court decisions. Considering the back and forth that the government has had over this issue, such concern is warranted. Depending on the mood of the government, citizens could have their rights completely protected, or they could have them infringed through a statutory instrument meant to speed up a complicated process. It should be noted though that these concerns over Henry VIII powers/ statutory instruments as pertains to the Brexit process and general governance seems to have been an emerging trend in the political world.

Theresa May’s government lacks a majority, and seems to be getting by, by relying on the support of the DUP, or by preventing MPs from voting on opposition motions, for which they have attracted significant criticism. Yet, before now, there was very little opposition to the use of statutory instruments. Indeed, between 1979 and 2015, not once did the Commons voice a complaint or rejection of the instruments, and when the Lords did indeed voice their concerns, they were shot down and reminded of their place.

It is important to note that between 1979 and 2015, there was no government that lacked a clear majority, even the coalition government had some form a majority. This suggests that when the government has a clear majority, the old ideology of the tyranny of the majority comes into play, and opposition is willing to set aside any objections to ‘respect the will of the people’, and those who do are criticised relentlessly. Such thinking would make it hard to take the criticism now being levelled at use of Henry VIII powers seriously, and make it seem as though opposition is simply trying to gain leverage, and not doing it for the good of the nation.

A further point on this, is that statutory instruments can help government shift through the mire of legislation that will need to be changed and ensure that only the real issues that need discussing are brought before Parliament for discussion. Given the sharp timeline that is there for the Brexit process, one could argue that this is the sensible thing to do, especially as it allows for key issues such as trade and financial settlements to be discussed, whilst minor things are handled separately. Thus, preventing unnecessary clogging of parliamentary time, and allowing for Parliament to use its time effectively.

To conclude, concerns over use of Henry VIII powers are valid, there is a high risk that government, a government such as Theresa May’s that lacks a clear majority, will use and abuse them, to get things done. However, concerns must be voiced even when government has a majority, to ensure balance and fairness.

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