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Why Henry VIII Is Not The Brexit Villain He Seems

07/09/2017 11:48 BST | Updated 07/09/2017 11:48 BST
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An excellent piece in The Times this week by the superb Rachel Sylvester has drawn justified attention to the irony inherent in Brexit's pledge to "take back control".

Rachel highlights in her article that "there could be about 9,000 so-called "statutory instruments", pieces of legislation that can be introduced without a House of Commons vote, in order to smooth the passage of Britain's departure from the EU. In short, ministers will be able to force through thousands of changes to the way the country is governed with no way for MPs to hold them to account." Further: "Far from giving control back to the people, this is a massive power-grab by the executive. Even if all the reforms are utterly benign and well-intentioned, accountability is being bypassed."

But is it? On one level obviously it is. But this isn't a unique Brexit matter. This is simply exposing the way that UK government operates - with insufficient parliamentary scrutiny and accountability. It is not just the democratic hollowness of the Brexit pledge that is laid bare but the underlying weaknesses in the Mother of Parliaments. Most Brexiteers, with the honourable exception of Douglas Carswell, were happy to play along with the idea that the remoteness and unaccountability of government in Britain is all about the bureaucrats in Brussels, but too few Remainers were remotely interested in the real control that could have been given to Parliament and/or to voters within the UK before there was any whiff of a Brexit vote. David Cameron had even gone so far as to charge Lord Strathclyde with intimidating the Lords that their ability to shape Statutory Instruments might be curtailed if they were foolish enough to vote in ways the Prime Minister didn't like hardly an advert for Re-mania.

As Rachel points out, "Many voters will feel betrayed when they realise that "take back control" was a fiction too," but parliamentarians in all parties can do better on these issues.

The erosion of parliamentary sovereignty by the growing use of secondary legislation and "Henry VIII clauses" (which give ministers powers to change primary legislation through Statutory Instruments and thereby bypass the need for parliamentary votes) to reduce the parliamentary accountability of ministers and Whitehall civil servants was dubbed "The New Despotism" in a book by Lord Hewart of Bury, Lord Chief Justice of England and former Attorney General, published as long ago as 1929.

The March 2016 Lords Select Committee on the Constitution response to the Strathclyde Review cited the 1932 Donoughmore Committee on this very point:

"In 1932 the Committee on Ministers' Powers stated that 'We doubt ... whether Parliament itself has fully realised how extensive the practice of delegation has become, or the extent to which it has surrendered its own functions in the process, or how easily the practice might be abused'. Those words might apply to Parliament even more today than they did then."

That is nothing to do with the EU.

In the 1971 EU accession debate Labour MP Willie Hamilton warned: "A great deal goes on even now under our own eyes that we do not know about... some 2,000 Statutory Instruments, which have legislative effect, go through this House every year and only a handful of them are debated. This is already government by default. In that sense this House, voluntarily and negligently, has surrendered a large part of its sovereignty to the Executive.... Much play has been made of the decision-making by the bureaucrats in Brussels. Things are not as simple as that. What about our own faceless bureaucrats in Whitehall? What part does this House play now in making policy decisions and in framing legislation? We have none at all. Everybody is consulted except us. Therefore, let us not pretend there will be any serious derogation there when we get into Europe."

This remains a UK issue, not a Brexit issue. Parliament can take back control. If it wants to. There is not much sign of it yet.