Joelle Grogan, Lecturer, Middlesex University

The Great Repeal Bill is ironically named because it won’t actually repeal much EU law. Instead, when Brexit concludes, it will initially shift existing EU law into British law. While this maintains some stability during the transition, the bill also includes a concerning element: a Henry VIII clause. This clause, named after the king who gave himself sweeping legislative power, allows the government to alter primary legislation with minimal parliamentary scrutiny. While this might seem practical for managing the vast body of EU law, it raises concerns about democratic oversight.

The inclusion of a Henry VIII clause in the Great Repeal Bill has significant implications for human rights. It could potentially allow a government minister, rather than Parliament, to decide the fate of rights derived from EU law. This article examines the historical context and criticisms of Henry VIII clauses and explores their potential impact on rights using the metaphor of King Henry VIII’s six wives.

The Ghost of Henry VIII

Henry VIII clauses are controversial because they prioritize efficiency over parliamentary scrutiny, a practice deemed unacceptable even in the 16th century. While these clauses have been used in specific, limited circumstances, they contradict the principles of democracy and parliamentary supremacy. The sheer volume of EU law subject to change under the Great Repeal Bill magnifies these concerns. Granting ministers unchecked power to amend laws derived from EU norms could lead to unintended consequences and legal uncertainty.

The irony is that Brexit, despite promises of returning power to Parliament, relies on mechanisms that centralize power in the executive branch. The use of a Henry VIII clause and the debate over who can trigger Article 50 both highlight this tension between executive power and parliamentary sovereignty. This approach to Brexit echoes the autocratic tendencies of Henry VIII beyond just the namesake clause.

The (Possible) Fates of Fundamental Rights

The potential impact of the Great Repeal Bill and its Henry VIII clause on fundamental rights can be illustrated using the fates of Henry VIII’s wives: divorce, beheaded, died, divorce, beheaded, survived.

The right to appeal to EU institutions will be beheaded by Brexit. Citizens will lose the ability to seek redress from the EU Commission or Court of Justice, leaving them reliant on domestic courts and existing human rights laws. This is linked to the death of rights directly stemming from EU treaties, such as free movement and citizenship rights. Additionally, the robust protections of the EU Charter of Fundamental Rights will no longer apply in the UK.

The separation of UK and EU legal systems creates uncertainty. The interpretation of laws originating from EU law becomes unclear, as does the precedence of future EU court judgments. Further, rights currently protected by EU law but replicable in UK law, such as consumer and worker rights, could be beheaded, intentionally or accidentally, by ministerial decree under the Henry VIII clause.

One potential survivor is the European Convention on Human Rights (ECHR), which operates independently of EU membership. However, the ECHR may struggle to adequately fill the gap left by the loss of EU rights. Other surviving rights will be those already safeguarded by common law.

Ultimately, the legacy of the Great Repeal Bill and its Henry VIII clause will likely be a net loss of rights. The decades-long trend of strengthening fundamental rights is under threat. The current climate suggests that we may face consequences far more significant than just the symbolic “ghost” of Henry VIII.

Image credit: Hans Holbein

[1] House of Lords Select Committee on the Scrutiny of Delegated Powers, HL 57 1992-93, para 10.

[2] HL Constitution Committee 6th Report, HL 51 2010-11, para 6.

[3] For example Benkharbouche v Sudan, and Janah v Libya wherein the Court of Appeal held that the embassies of Sudan and Libya could not rely on the State Immunity Act 1978 to bar employment rights claims under the EU Working Time Directive, as it would violate Article 47 CFR which in turn required the disapplication of the Act. The Court found a violation under Article 6 ECHR, but could only issue a declaration of incompatibility.