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Can a Prime Minister who tried to pass Article 50 by Royal Preogative be trusted with a Henry VIII clause?

Henry VIII’s “Statute of Proclamations” in 1539 gave the Tudor monarch the power to make laws without consulting parliament. Mind you  – it was hardly a democratically elected legislature back in the day. The statute was anyway repealed after his death on the not unreasonable grounds that a regal dictatorship was not the best way to run the country.

But now Theresa May has decided that just such a power would make Brexit a great deal easier.  Getting parliamentary approval for changes to thousands of EU laws as they tumble onto the UK statute book would be such a bore.  So, the  Great Repeal Bill includes a Henry V111 clause allowing Number 10 to sift through the thousands of directives and regulations passed over 40 years by Brussels and accept or repeal them by proclamation.


This is supposed to be just for technical matters – like removing EU from bills and replacing it with UK.  Anything important, like the single market or immigration law, is supposed to be dealt with in a parliamentary bill. There are understandable anxieties in handing such a clause to a Prime Minister who tried to push through Article 50 under royal prerogative. Labour says this will give Mrs May “dictatorial” power, not just on food labelling but anything from nuclear waste to GM crops.

The UK government’s guidance gives as an example of a Henry bill, the Offshore Petroleum Activities (Conservation of Habitats) Regulations 2001. On first reading, this would  seem to be kind of important since it presumably relates to the protection of state of marine wildlife in the North Sea.

This is of particular concern for Scotland as all laws passed by the Scottish Parliament have to be in accordance with EU law; otherwise they are not laws. Lawyers have been wondering what will happen when European law is extinguished by the Great Repeal Bill. Do EU laws all go to the UK Government since it is supplanting Brussels? Or would laws on devolved areas such as agriculture naturally gravitate to the Holyrood Parliament? No one really knows.

Under the 1998 Scotland Act, only reserved powers such as defence and foreign affairs are itemised and the assumption hitherto has been that anything not listed in Schedule 5 is under the remit of Holyrood by default. But that could in theory give Holyrood a vast range of new powers held at Brussels.

Mrs May has suggested that Nicola Sturgeon might be offered her own devolved version of  a Henry VIII clause to deal with specifically devolved matters.  But this might actually alter the Scotland Act by laying down, really for the first time, exactly what powers the Scottish Parliament has, instead of just those reserved to Westminster. The carrot is that the First Minister will be able to use powers of proclamation to make her own dictatorial changes. But SNP supporters will be intensely leery of this power. They remember Henry VIII mainly for the “Rough Wooing”, his 16th century war against Scotland.

About @iainmacwhirter

I'm a columnist for the Herald. Author of "Road to Referendum" and "Disunited Kingdom". Was a BBC TV and radio presenter for 25 years - "Westminster Live" and "Holyrood Live" mainly. Spent time as columnist for The Observer, Guardian, New Statesman. Former Rector of Edinburgh University. Live in Edinburgh and spend a lot of time in the French Pyrenees. Will that do?


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