The Labour Party, which, in government, has made prodigious use of delegated legislation, has suddenly discovered a great distaste for statutory instruments. The SNP, the Welsh Nationalists and the Liberals are equally outraged that a government Bill should contain what we now have to call “Henry VIII clauses”. Rather more worryingly for the government, several pro-EU Conservative backbenchers, some, like dear old Ken Clarke, who loved them when they were ministers, have also declared their extreme dislike of statutory instruments.
Poor old Henry. He is blamed for the present government’s intention to use secondary legislation because those who are opposed to Brexit think it sounds good to accuse modern politicians of behaving like a Tudor king who kept chopping people’s heads off.
The irony, of course, is that the Bill to which all these politicians object has, as its primary purpose, the repeal of an Act (the European Communities Act 1972) which provided, on a massive scale, for UK laws to be made without any reference to Parliament or to any democratically elected body. Over 12,000 laws, some of them very significant, have been imposed on us by the European Commission and Council of Ministers without our Parliament (even the European Parliament) being allowed to consider them at all. And that was achieved because the 1972 Act permitted it.
But that isn’t really my point. At this stage I lose my supporters, but I am used to that. I detest the modern explosion of secondary legislation. Labour, the Conservatives and, as a result of the coalition, the Liberals have all gaily promoted Acts of Parliament which permit ministers to make regulations, often with practically no parliamentary supervision, which greatly affect us all. This has being going on for decades. And I think it thoroughly disagreeable.
Of course, there are some minor provisions which can safely be made without Parliament being consulted. But successive governments have taken the view that almost anything can and should be done by delegated legislation. There are even, and have been for years, Acts of Parliament which do nothing but permit the “Secretary of State”, or “Ministers of the Crown”, to “make regulations”. And, quite often Acts of Parliament actually empower governments to make regulations which can amend or repeal other Acts.
Part of the problem, of course, is that politicians love making laws. The more the merrier. But there just isn’t enough time to allow all those laws to be made by Act of Parliament. That is why all those outraged Labour MPs who have been complaining about Henry VIII’s influence on the European Union (Withdrawal) Bill are quite happy for Labour governments to be granted the power to make endless statutory instruments.
As it happens, there are very good reasons for allowing what one might call technical amendments to EU law to be made by statutory instrument rather than Act of Parliament. It would be tedious in the extreme for Parliament to have to debate every provision saying, for instance, that a UK body rather than an EU one should supervise this or that activity. But it would be quite wrong for substantive changes in the law to be made by secondary legislation. I don’t think that is what the government is proposing to do, but the Bill, as presently framed (by civil servants of course), might be thought to give it that power.
It will not be difficult to amend the Bill to make it clear that substantive changes in the law cannot be made by statutory instrument. I am sure that will happen. And Mr Corbyn, that man who is said to be far too honest to change his opinions to suit public opinion, who has been opposed to the EU for the whole of his public life, who campaigned in the general election on a ticket firmly committed to Brexit, but who has now been told that the focus groups show many of his supporters disagree with him and has therefore resolved to oppose Brexit, that man must have known that the Bill was bound to be amended to make it clear that substantive changes in the law cannot be made by secondary legislation. His decision to make his MPs vote against the second reading of the Bill was despicable. But they didn’t all do what they were told to. We should all applaud Caroline Flint, for instance, an MP who thinks we made a mistake in voting for Brexit, but who was courageous enough to declare that she felt it her duty, having supported her party’s pro-Brexit campaign in the general election, to support the Bill. And there were others like her. The Labour Party is not a lost cause.
But back to poor old Henry VIII, the villain of the piece according to such luminaries as David Lammy (a Labour MP who has shouted long and hard about His Late Majesty’s dreadful influence on modern Conservative governments). I was amused to discover today that Mr Lammy, in a television quiz, was asked this question: “which monarch succeeded Henry VIII?” The answer given by the great historian was “Henry VII”. Enough said, as they say.