His Late Majesty King Henry VIII bequeathed three things to His Kingdom – the Church of England, a Good Thing, the clauses which bear His name, which are a Bad Thing, and the best joke ever to appear in a song. I refer of course to the immortal line by Flanders and Swann, in response to the query “who do you think you are?”, “We are Henry VIII, We are”.
Having willingly gone along with Henry VIII clauses in order to implement EU obligations, it seems that the LibDems have suddenly discovered that they are constitutionally undesirable. Needless to say, since we’re talking about the LibDems, this is rank hypocrisy.
Sections 2(2) and (4) of the European Communities Act 1972 contain the most sweeping Henry VIII powers ever enacted in British history, including the original Henry VIII power. It was this power which was purportedly used to implement compulsory metrication, without a peep from the LibDems. Like the judges they only seem to object to powers when they are used to disentangle us from our disastrous European misadventure.
At no stage did either the judges or the LibDems ever object to the use of the Royal Prerogative to sign up to ANY EEC or EU treaty, nor have either ever objected to the use by ministers of Henry VIII powers under the notorious s.2. Not a single Henry VIII order under s.2 has been quashed, indeed there was only ever one serious attempt, in the famous Metric Martyrs Case.
What is a Henry VIII Power?
A Henry VIII power is a clause in a statute which permits ministers to amend Acts of Parliament using a statutory instrument. In theory the power can be used to amend any provision in any statute ever enacted. Thus a minister, in theory, could amend the Bill of Rights, provided of course that Parliament gave him the power to do so.
They are highly controversial and were very properly attacked by a fine Lord Chief Justice, Lord Hewart, in his famous book ‘The New Despotism’. Originally intended to be used in cases of national emergency only, or to effect minor and consequential amendments, they came into greater use after the German agent David Lloyd George was forced out of office by the Tory Party in 1922.
German Intelligence was thus left in control of the Civil Service only, the control being exercised via the Cabinet Office, which was in turn under the control of the German agent and notorious paedophile Maurice Hankey, known in the trade as “Hankey-Pankey”. No longer able to force through idiotic statutes, Hankey hit on the idea of using Henry VIII orders. Although rubber-stamped by ministers, in practice they are drafted by civil servants. The minister in whose name they are made might not even see them, indeed in the speed camera constitutional test case the courts approved the making of secondary legislation by junior regional officials.
There are two nominal safeguards, neither of which has proved effective in relation to orders made under section 2:
(1) the courts will construe a Henry VIII order strictly against a minister and
(2) a Henry VIII power can only be used in respect of an existing statute, because the power of Parliament cannot be projected into the future.
That safeguard of course proved useless in Metric Martyrs, when the courts, with respect, overturned centuries of constitutional doctrine going back to Sir Edward Coke by upholding an order made in respect of a later statute. In that case a Henry VIII order under section 2 purportedly amended the Weights and Measures Act 1985.
Happily the decision in Metric Martyrs isn’t binding. With great respect, it’s junk law and will probably be overturned in the wake of Brexit.
A Warning to David Davis
My respectful advice to David is to scrap the idea of using Henry VIII powers altogether. It’s a trap. The Cabinet Office are desperate to keep Britain subject to community law.
One of the reasons the Cabinet Office are so powerful is because they have access to the personnel files of the judiciary, which went across to the DCA (Dept for Constitutional Affairs)when the Lord Chancellor’s Department was abolished by Tony Blair, who was of course pushed into it by the Cabinet Office. I suspect they have foisted the idea of using Henry VIII orders on the Department for Exiting the European Union.
Soros is bound to bankroll more legal challenges and the judges are bound to quash every Henry VIII order making substantive changes. Since they are unconstitutional in principle they should not be used anyway.
If statutes need repealing or amending that can be done with a Schedule of Repeals in the Great Reform Act. It’s simple – you just repeal any Act importing community law and remove references to the EU in statutes passed since 1973. There aren’t all that many – in order to by-pass Parliamentary scrutiny most EU directives have been incorporated by order. These can simply be revoked.
That idiot woman Gina Miller, no offence intended, thinks it could take up to a decade to unpick EU obligations incorporated into UK law. So it will, if we leave it to idle civil servants. If ministers get a grip, two years should be ample time.
False Claims By The SNP
The SNP have a long history of making false claims. They claim to back Scottish independence, when what they want is for Scotland to become a state party to the TEU, with the euro as her currency. Possibly having smoked too much haggis, they have also asserted ownership of Britain’s part of the North Sea.
The latest lie, touted this weekend by Nicola Sturgeon, is that the EU is the world’s largest single market. It isn’t, not by a long chalk. NAFTA is far bigger. NAFTA GDP in 2016 was $20.7 trillion, compared to just $13.5 trillion for the EU27. NAFTA’s population is also greater than the EU27’s and its area is nearly three times as great.