Henry VIII Act and The Rule of Law

If you’ve been wondering what all the fuss is about about the so called Henry VIII Act it might be time to go back to basics.

Our democracy is based on doctrine of “The Separation of powers”. The legislature make laws (Parliament) the executive implement laws (Ministers and their departments) and the judiciary interpret laws (judges). It is  important that these three functions are kept separate to provide checks and balances and to prevent abuse.

Bills (draft laws) are debated in both Houses of Parliament (the Lords and the Commons) If passed by majority vote they are sent to the Queen and given the Royal Assent (she signs them) which makes them law. Technically the Queen could refuse but because we have a constitutional monarchy, the monarch has always signed any and all bills put before him or her.

The executive have the role of implementing law. They do not and should not make law. They can and do make rules which help with interpretation of Law but not law in and of itself. The reason for this is that if the executive make law these laws would not be open to public scrutiny. Parliamentary debates are supposed to uncover flaws and weaknesses in bills before they become law.

If in doubt about what an actual law means in practice, and this happens often, the role of the judiciary is to interpret and apply the law in individual cases.

For example, Theresa May tried to implement the withdrawal of Britain from the European Union after the referendum without Parliament being consulted. Gina Miller and others believed that this would undermine the rule of law. The EU referendum did not have the weight of Law it was simply advisory. Ms Miller was successful in her court challenge to the government, but sadly at considerable personal risk to herself. She has suffered a phenomenal amount of vitriolic abuse including a Viscount who has been jailed for suggesting that she be run over.

It should not be necessary for a private citizen to bring an action against the Government to force it to obey its own laws but at least courts existed to enable her to do so. Whether you are pro or anti Brexit the point is that the decision was for Parliament to make and not the Government.

Many people get a little confused as to the distinction between parliament and the government Parliament is made up of all of the MPs the government is made up of the Prime Minister, her cabinet and other ministers and the civil servants who work for them.

The problem with the recent bill so-called Henry VIII Powers is that it gives ministers the right to do anything that Parliament could have done. So although the government is claiming that it is merely an administrative measure this is not the case. What it means is that individual ministers can make laws which are effectively done in secret and are not subject to the scrutiny of parliament and whilst the judiciary can check the implementation of those laws they cannot change them or repealed them. It is effectively ruling by decree.

Laws have often been used for purposes contrary to those which were put forward that the time that they were enacted. Student loans are a classic example of this. When they were originally enacted the argument was that the £3,000 cap would not be raised. However soon after this the cap was raised to £9,000. I remember arguments in Parliament that only the most elite universities such as Oxford and Cambridge would charge the full £9,000; wrong again these days nearly all universities charge the full £9,000 and the government wants to raise it again.

Students who have borrowed money to pay these fees have subsequently found that the loans they thought would be repayable to the government have been sold to private companies who have ramped up the interest rate to 24 times the Bank of England base rate. All this has happened with laws that were passed according to our current constitution, imagine what would happen if Ministers were allowed to make any laws they felt like without parliamentary scrutiny.

When ministers can make laws without recourse to Parliament then Parliament itself becomes obsolete.

Whether you are pro or anti Brexit you should be worried, very worried about the latest legislation. It is not yet law and there is still the possibility of stopping it becoming law. It is clear that Theresa May has authoritarian tendencies. Her ‘go home’ posters whilst at the Home Office in my humble opinion breached the race relations act because they had a tendency to incite racial violence. More than any other Prime Minister before her she has tried to avoid the scrutiny of Parliament and with this latest Act she’s taking it one step further to cut Parliament out of the picture all together. If laws passed with Parliamentary scrutiny are so bad, imagine what will happen without it.

If you value parliamentary democracy no matter which side of the Brexit debate you are on you should be opposing this legislation.


Marcia Hutchinson MBE  is a former lawyer and publisher of culturally diverse  educational resources.

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