What the Shady 'Henry VIII Clause' in the Brexit Process Means for You

(Top photo: Henry VIII image via; flag image by Elionas2, via)

Of all the strange postures struck by the Conservative Party since Brexit – for one, pretending to be the "party of workers" – their turn to the language of direct democracy is the least convincing. MPs whose closest encounters with normal people have been "standing behind a two-way mirror during the odd focus group" are suddenly extolling the virtues of popular rule. It's become the reflex response whenever a Brexiteer is asked a difficult question – "The British people have spoken; their will shall not be frustrated…" – and has transformed that advisory vote on the 23rd of June into an act of pure, democratic transcendence.

But in a political system that prides itself on a strange and arcane constitution – balanced between the Executive, the Commons and the Lords (their chambers, committees and sub-committees), and the Crown – direct democracy was never going to have traction. British politics has developed over hundreds of years to mute the masses, not let them conjure up policy.

The language of popular control is being used to do just the opposite, and nowhere is this clearer than in the spectre of Henry VIII, which is haunting the latest constitutional crisis and promising the potential erasure of your working, environmental and consumer rights with the flick of a pen.

So what's the only Tudor monarch whose name you remember got to do with this? In her Lancaster House speech in January, the Prime Minister said that after triggering Article 50 and beginning the two-year negotiations to leave the EU, the government would introduce a Great Repeal Bill. This would have the effect of cancelling out the 1972 European Communities Act, which got Britain into Europe, and transferring "the body of existing EU law … into British law".

This would ensure that the day Britain leaves the EU there won't be a legal vacuum – all those rules governing bendy bananas and air pollution melting into nothing.

However, the sheer depth and complexity of the EU's presence in British statute books means Parliament won't have time to debate and re-legislate everything over the next two years. The government's solution? Adding something to the Great Repeal Bill called a "Henry VIII clause". This gives ministers the "power to amend primary legislation" quickly and without proper Parliamentary scrutiny.

In practice, this might mean Tory ministers getting rid of things they don't like in the transferal process, like pesky workers' rights and environmental protections. Before the referendum vote, Jeremy Corbyn warned of a "bonfire of rights" if Britain left, and this is exactly how that sort of thing might happen.

Henry VIII clauses are controversial because they invest so much power in the executive at the expense of Parliament. Their origins are in the monarch of the same name, who forced through a Statute of Proclamations in 1539 "empowering his decisions both to change and have the same force as legislative acts". The Statue – described by the philosopher David Hume as a "total subversion of the English constitution" – was repealed after Henry VIII's death, but similar powers have lingered on in the political system as a "constitutional oddity", in the words of a House of Lords committee from 2010, and are still referred to by the name of the tyrant who invented them.

Although a Henry VIII clause in the Great Repeal Bill is understandable in a pragmatic sense – two years isn't enough time to scrutinise the transfer of 40 years' worth of EU law in Parliament – giving ministers the power to waiver, either intentionally or accidentally, rights for UK citizens that are grounded in EU law would be "the most significant transfer of power to the executive in the modern history of the United Kingdom", according to one lawyer.

It would allow the Tories to undo years of legislation that started in Brussels – like the maximum working hours directive – and set a dangerous precedent for what government is able to get away with.

The House of Lords, whose de facto role has often been to curb the unconstitutional excesses of government, has taken the "highly unusual" measure of scrutinising the Great Repeal Bill even though it hasn't been published yet, according to the Law Society Gazette. It has recommended limiting the ministerial powers that the Repeal Bill sanctions and even requiring each Minister to "sign a declaration in respect of each statutory instrument affirming that it does no more than necessary to translate EU law into UK law".

As left-wing commentators have observed for decades, no one in contemporary politics is better at exploiting a crisis than the right. From the monetarist response to 1970s stagflation that gave us neoliberalism, to the stealth privatisations detailed in Naomi Klein's The Shock Doctrine, they know how to use moments of rupture and uncertainty to strengthen their class power. If Brexit creates the space for this to happen, and Henry VIII clauses the means, it will confirm what we all know: "Taking Back Control" simply meant transferring power from one elite to another.

@Yohannk

Previously:

Why 'Empire 2.0' Won't Save Us Post-Brexit

How European Workers in Britain Are Preparing for Brexit

How Brexit Could Help Criminalise Whistleblowing