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Brexit is generating debate on so called Henry VIII powers, and is likely to do so for a number of years. They give rise to some basic questions. How do we identify Henry VIII powers? How are they different from the power to make delegated legislation? Henry VIII powers would allow ministers to change primary legislation. That leads to a fundamental question over the legality of such powers under the constitution. The use of such powers will become increasingly important when the process of dismantling those parts of the vast body of EU law incorporated into UK law under the European Union (Withdrawal) Bill that the UK does not wish to keep begins.
It is already strongly arguable that unless ministers are given sufficiently clear authority to change primary legislation by statute, ministerial attempts to change primary legislation without further sanction from Parliament would be unconstitutional.
Henry VIII was given his powers by the Statute of Proclamations, passed by Parliament and repealed by Parliament following his death as the following brief historical perspective on Henry VIII powers shows. That article draws attention to a talk given by Lord Judge in 2016 where his lordship questioned the legality of skeletal provisions enabling ministers to change primary legislation. The Supreme Court in the Miller judgement ([2017] 1 ALL ER 593) referred to Henry VIII clauses in the context of the power to make ancillary regulations. The Supreme Court also lends support to Lord Judge’s contention that skeletal provisions permitting changes to primary legislation would be unconstitutional by making clear that
“…the principle of legality means that Parliament must squarely confront what it is doing and accept the political cost’, and so ‘fundamental rights cannot be overridden by general … words’ in a statute”.
There is understandable concern over the prospective use of Henry VIII powers. However historical and recent legal precedent provides ammunition for contesting the use of such powers.