By Lynda Towers, Director of Public Law at Morton Fraser

BEFORE Brexit, King Henry VIII was no more than a historical, rotund, Tudor character who managed to work his way through six wives. For the constitutional lawyer bells may have rung around a rather obscure drafting issue relating to powers in legislation. Now he has been a headliner in the Brexit debate. But why and does it really matter?

Parliament at Westminster passed the Statute of Proclamations in 1539. It allowed Henry VIII to issue proclamations which had the same effect as an Act of Parliament without actually having to be passed by Parliament. On Henry VIII’s death in 1547 it was repealed and the procedure quietly forgotten.

This has morphed in modern parliamentary process into a power in an act which allows amendments to be made to other acts by secondary legislation, pithily known as a “Henry VIII power”. The level of scrutiny given by a legislature, including the devolved legislatures, to secondary legislation is much less than that given when passing acts. It puts the Government in a much stronger position and makes it less likely they will be challenged.

Brexit will mean a huge increase in the volume of secondary legislation passing through Westminster, Holyrood, Cardiff and Belfast (if the current situation in Northern Ireland is resolved). Anything between 7,000 and 17,000 pieces of EU-inspired legislation, depending on who is doing the counting, will require to be amended to make them work post Brexit.

Even if the figure is on the lower end of the spectrum that is a lot of legislation to amend in a short period of time. Putting that in context, in 2014-2015, a busy year, 1,378 statutory instruments were laid in Westminster. Henry VIII powers will certainly save Parliamentary time by allowing amendments to acts by the less time consuming secondary legislation process, but at the price of less detailed scrutiny.

The European Union (Withdrawal) Bill is full of Henry VIII powers allowing the amendment of other primary legislation by secondary legislation. It also allows the bill itself to be amended if the minister considers it appropriate, which is not a very high test. This means that secondary legislation could, in theory, change or remove the safeguards in the bill itself including sunset clauses, time

limits and processes which will

have already been agreed by Parliament.

The Government says it will not exercise these powers inappropriately and this is purely a belt and braces power in case it needs to act fast in implementing aspects of the Brexit negotiations. This may well be its intention, but who knows what issues the future negotiations will bring?

Equally important is that bills can be amended if it is considered appropriate but the only option for secondary legislation is to accept it – or not. No amendments are possible. It is also worth remembering that the Sewel convention, requiring devolved legislatures to be consulted if primary legislation will affect their legislative competence, does not apply to secondary legislation. There is real scope for constitutional difficulty.

The use of Henry VIII powers is going to affect all areas touched by EU law, however lightly. It may sound like a technical legal challenge for lawyers to sort out, but ultimately it affects the ability of our elected representatives to keep a check on Government secondary legislation to protect the citizen’s interests in delivering Brexit. We elected our representatives. No one elected Henry VIII.

The author was formerly solicitor to the Scottish Parliament.