Wednesday, 13 September 2017

Henry VIII or Hitler?

Changing the law via negative Statutory Instrument - subsidiary legislation which is not scrutinised in Parliament unless "prayed against" ("called in" would be the local council equivalent)  - has come to be known as "Henry VIII power", after the Statute of Proclamations of 1539 which gave the serial-monogamist monarch power to legislate by proclamation, overruling Parliament. Most of the routine EU directives are incorporated into UK law in this way. There is an authoritative description of the situation in a briefing note (pdf).

Now Mrs May's government, through the European Union (Withdrawal) Bill, wants to use the negative SI provision to incorporate into UK law all the EU-mandated legislation which we have adopted since 1972 which would otherwise fall with the repeal of the European Communities Act. If it were just a technical matter, there would be no objection, but as the Financial Times points out:

What worries critics is the part of the repeal bill (section 7 of the European Union (Withdrawal) Bill, in particular) that deals with “deficiencies arising from withdrawal” — that is, references to EU regulators, the European Court of Justice and other entities that will no longer have any sway in Brexit Britain.  The government says it needs Henry VIII powers to tidy all this up. The problem, say critics, is it might try to alter not just the technical details, but also the substance and effect of the law. 

The FT article goes on to suggest that the Supreme Court may provide a back-stop in that it has power to rule SIs as unlawful if they are against the spirit or letter of primary legislation. However, I suggest that this power would be applied narrowly, in a legalistic fashion.

The Withdrawal Bill passed its major hurdle in the Commons on Tuesday. Some prominent Remainers on the Conservative benches voted for the Bill to continue on the grounds that it could be improved in committee. They must surely have known that Mrs May would ensure that she would have her way in committee, and sure enough the Commons last night resolved to change Standing Orders in order to impose a government majority on the Standing Committees sitting on EU legislation. There were reasoned objections from Alistair Carmichael, the Liberal Democrat spokesman, and Valerie Vaz, shadow Leader of the House in the face of declarations from the other side which seldom rose above the equivalent of "we are in power, so suck it up".

Ms Vaz had to contend with thuggish barracking from the government side, such that deputy Speaker Eleanor Laing had to intervene on occasions. Ms Vaz anticipated the argument that Labour would do the same in the Tories' place:

In 1974, the minority Labour Administration had a Government majority on the Committee of Selection, but it appointed Standing Committees with no overall majority. That is, there were Committees with equal numbers. In October 1974, there was a Government majority and that was reflected in the Committees. In April 1976, when the Government lost their overall majority, a motion was passed that stated that the Committee of Selection would appoint Committees with a Government majority only when the Government had an overall majority. That was the Harrison motion. From that point, the Committee of Selection nominated Standing Committees of equal numbers. That was a Labour Government being honourable.

Alistair Carmichael said in moving the Liberal Democrat amendment:

The most important job that we as Opposition Members ​of this Parliament have to do is scrutiny, which is why the composition of the Committees to which we commit Bills upstairs matters. That is why it is, in fact, a matter of quite fundamental principle. I think that we might all acknowledge that, from time to time in this House, we indulge in a little bit of hyperbole, occasionally even straying into polemic. 

I think of some of the matters that the right hon. Gentleman [Oliver Letwin, the previous speaker] and I opposed during the years of the Blair-Brown Government. One example is when they tried to extend detention without charge to 90 days. I remember also the passage of the Legislative and Regulatory Reform Bill. He and I and others described them then as constitutional outrages—it was a “power grab” and an “affront to democracy”. I may even on occasion have indulged in a small measure of hyperbole and rhetoric myself. [Hon. Members: “No!”] We all do it. I am reminded that when Paddy Ashdown was leader of my party, it was a joke popular among other parties—obviously not to me or the media at the time—that the message on his answering machine was, “Thank you for calling Paddy Ashdown. I am not able to take your call. Please leave your message after the high moral tone.” We have all done it, but the difficulty that is caused by relying on rhetoric and hyperbole is that it is difficult then to know what to say when we come across a proposal such as that which the Government bring to the House today. I can describe it as others have done as a, “constitutional outrage”. I can say, as others have done, that it is an affront to democracy. However, to say that suggests that that is somehow just the same as those measures that we have previously described in those terms, but it is not. It is much worse. It is an obnoxious measure for which I know of no precedent in my time in the House.

In this country, we do not have a written constitution. We proceed much of the time according to the process of convention and principle, and so it is also for the ordering of our proceedings in this House. Here, too, we often rely on the process of convention and precedence. It is a delicate system of checks and balances. I am certainly not saying that it is one that is incapable of improvement. I have supported many improvements to it over the years, but we have to approach these matters in a rather more holistic manner than is being taken by the Government tonight. Once we start removing these checks and balances, we risk at least one of two things.

First, we can bring the machinery of Parliament to a grinding halt, and tonight the Government risk breaking our machinery beyond repair. The alternative prospect is that we raise the possibility of other parts of the system reacting in a way that is designed to compensate for our breaking of the checks and balances. 

"Henry VIII" has been supplanted on social media by a twentieth-century parallel: the usurpation of power by the Nazi party in 1930s Germany. Neither are exact precedents. The Windsors are not aiming to cut out Parliament (as Henry did), nor are they likely to be as supine as German president Hindenburg if there is a real threat of dictatorship. Our constitution is more robust than that of the Weimar Republic in resisting power-grabs. However, the chipping away at the scrutiny power of Parliament is clearly a threat to the governance of the nation. We may not be at a cliff-edge, but we are at the top of a very greasy slope.

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