The First Brexiter

Glen Newey

In the fatness of these pursy times, there’s much talk of Henry VIII, the first Brexiter. The tubby tyrant’s serial monogamy led to Brexit from Rome and from Pope Clement VII, then incumbent in the line of apostolic succession that has latterly issued in Jean-Claude Juncker. In an early exercise in having one’s cake and eating it Henry hung on to the title of Fidei defensor, which Rome had granted him for taking a pop at Luther. As part of the Reformation power grab, Henry got Thomas Cromwell to draft the Statute of Proclamations of 1539, which has given rise to today’s talk of ‘Henry VIII clauses’ in the Brexit legislation launched last week in the Commons.

This has provoked another outbreak of misappropriated-sovereignty syndrome. Who rules? Scares circulate that the government’s spectacularly misnamed ‘Great Repeal Bill’ will ape the 1539 statute’s provision that royal proclamations be accorded the force of law; even James VI and I, king of Scotland and England by divine right, is said to have called the Henrician act ‘tyrannical’ (it was repealed after only eight years). But it’s notable that the measure rested on what the late historian G.R. Elton, in his pitilessly turgid The Tudor Revolution in Government, called ‘the omnicompetence of statute’. Now in place of proclamation through enactment we have enactment as repeal: the blanket incorporation of the European acquis into UK law when the country leaves the union. This is to prevent what the Telegraph called ‘a black legal hole after Brexit’. No doubt the ‘Great ingestion of European law just when we thought we were escaping the clutches of Brussels’ was found to be a less catchy moniker. As the Sun reported the other day, the bill’s name has now had to be changed on misrepresentation grounds.

On the one hand, it’s possible to get over-wobbly about Henry VIII clauses, which give the government the power to amend legislation without extended parliamentary scrutiny. Indeed, Henry turns out to be inescapable: the European Communities Act 1972, the one measure that is in line for repeal, itself contains a clause, 2(2), which empowers UK government ministers to transpose EU directives into UK law. Europhiles point out that in such cases the legislation has at least been through a drafting process in Strasbourg or Brussels before being transposed. Delegated legislation via statutory instruments is bread-and-butter legislative fare (about three thousand statutory instruments are enacted each year; according to the government Parliament has enacted 7900 of them to implement EU law). But since its say is usually limited to issuing a yea or nay to statutory instruments, Parliament’s scrutiny of them has long been subject to criticism. Last year the Strathclyde Review recommended stripping the Lords of its power to veto statutory instruments after their lordships blocked secondary legislation on tax credits. The Constitution Committee voiced concern that ‘the government can pass legislative proposals with greater ease and with less scrutiny if it can do so as delegated, rather than primary, legislation.’

On the other hand, the very fact of mass incorporation poses questions about the plethora of EU laws that rely on European agencies for their enforcement. Sometimes, as with food standards, the UK’s FSA stands alongside a European agency (the European Food Safety Authority): what happens when the UK is no longer part of the EU? Similar regulatory systems are in place for the finance sector, agriculture, telecoms, medicines and environmental protection. A cleft stick looms: either the UK does its own thing, and jeopardises trade and other forms of co-operation with the union; or it defers to the extant European regime, as do countries importing meat products into the EU, and escape from the Euro-hydra is bilked.

As there’s little chance that comprehensive replacement regulatory regimes will be in place before the Article 50 deadline in March 2019, the default policy will presumably be to empower ministers in whatever government is in office by then to decide these matters by personal fiat – the modern version of Henry VIII’s omnicompetence of statute, without the beheading.


  • 19 July 2017 at 9:47pm
    streetsj says:
    I understand that this is (mostly) a point of principle but is there any practical concern? What regulations is the Govt likely to be passing that are objectionable? And if they are then surely they can be challenged in Parliament? The opposition must be vigilant that the Govt isn't sneaking in some partisan bias without proper scrutiny but is it too naive to think that this is purely a practical measure to keep things moving?
    My personal view is that the proliferation of detailed regulations, whether they are about the shape of bananas or the appropriateness of cladding, fail to do their job by the prescriptiveness of their nature. Principles are better than rules; but they do need proper enforcement. The EU's natural position is to prescribe everything, which is why there are supposedly x gazillion rules that need to be renegotiated.
    Have you looked at the banana rules? Why are there 5,000 words prescribing the appropriate appearance of bananas for sale to the public? I presume (but don't know) it's to protect the banana growing parts of the EU from competition. Which is of course the nub of the problem: the EU is not interested in free trade it is about protectionism. Is it not possible that France would be better off without the CAP? That it reinforces anachronistic structures to the benefit of very few and the detriment of many? Change needs to be managed but resisting the inevitable can be very costly.
    How much harm has EU protectionism done to the development of Africa that is now being harvested through the wave of (unwanted) immigrants crossing the Mediterranean?

    • 20 July 2017 at 10:49am
      Stu Bry says: @ streetsj
      "I presume (but don’t know) it’s to protect the banana growing parts of the EU from competition."

      Is this satire?

    • 20 July 2017 at 2:20pm
      JamesBaldwin says: @ streetsj
      The EU doesn't regulate the size and shape of bananas: that is among the many things Boris Johnson made up in order to sell his line about out-of-control bureaucracy.

      What the EU regulations on bananas do is define different classes of bananas. The specifications that Boris whipped up into the "bendy banana" furore are the specifications for the top class of bananas. This is nothing to do with retail markets but with wholesale agricultural markets where most transactions take place without seeing the product: indeed much of the trading is done through futures, before the product has even been grown. When a wholesaler buys a tonne of bananas for delivery next February, they need to know what kind of bananas they're going to get because otherwise how will they know how much to pay? The EU regulations provide clarity for these kinds of transactions: the wholesaler pays for a tonne of Class I, or Class II etc., bananas for delivery next February, and both sides of the transaction know what is expected. As with many trade regulations, this facilitates trade, by removing uncertainty, rather than hampering it.

    • 20 July 2017 at 2:24pm
      JamesBaldwin says: @ JamesBaldwin
      Cladding is also a spectacularly bad example for your argument because, from what I've seen in the news, regulation based on "principles" is precisely at fault in the Grenfell tragedy. The British regulations specified a principle - that cladding used on tall buildings should not be flammable - and this has resulted in hundreds of buildings around the country being covered in highly flammable cladding because there wasn't enough certainty about what types of cladding counted as flammable. Meanwhile, in Germany, the regulations were more prescriptive, banning particular products from being used in high buildings, and Germany does not have hundreds of tower blocks covered in highly flammable cladding.

    • 20 July 2017 at 3:47pm
      deuchars48 says: @ streetsj
      As a former drafter of statutory instruments I can assure you that there is a very good reason why regulations are prescriptive rather than relying on principles. It is much harder to demonstrate to a court that someone has failed to comply with broad principles that it is to demonstrate that they have failed to comply with detailed prescriptions. Good law creates certainty. If all you give people is vague principles no one, buyer, seller, service provider, service receiver etc knows where they stand or where the line between a permissible and impermissible product/service/act lies.

    • 20 July 2017 at 5:46pm
      streetsj says: @ Stu Bry
      I presume you think the EU doesn't grow bananas. It produces 12.6% of the bananas consumed in the EU

    • 20 July 2017 at 5:50pm
      streetsj says: @ JamesBaldwin
      AH! I didn't realise it was for the wholesale markets. But why does the EU set down the rules? Why don't the fruit markets have their own rules? It just doesn't seem to be a thing that Government (in whatever form) needs to regulate. Unlike say cladding. Unless, of course, it's actually about protectionism, which none of the informed comments here have suggested it isn't. Yet.

    • 20 July 2017 at 5:57pm
      streetsj says: @ deuchars48
      Or, looked at from the other way, you get people subverting the point of the regulations while conforming to the letter of the law.
      I purposefully chose the extreme examples of bananas and cladding as one is clearly trivial and the other critical. I've never drafted a SI but it seems to me that you can be just as clever drafting principles as prescriptions. There may be a grey area in the middle of two obviously right or obviously wrong cases but that is not necessarily a bad thing. If you were a supplier of cladding and you chose to specify your product right in the grey, you would be taking an enormous risk that a court would find against you.

    • 21 July 2017 at 4:41am
      Joe Morison says: @ streetsj
      I took it to be the 'I presume (but don't know)', something you seem to do rather a lot of.

    • 21 July 2017 at 6:21pm
      Bisenzio says: @ streetsj
      Please use 'purposely' or 'on purpose' if you mean 'as I intended' rather than 'purposefully': I am sure you meant to choose your example with resolution.

    • 21 July 2017 at 6:45pm
      deuchars48 says: @ streetsj
      streetsj it's not about being clever, it's about being precise. Have a go at drafting a precise principle.

    • 23 July 2017 at 9:15pm says: @ streetsj
      "But why does the EU set down the rules? Why don't the fruit markets have their own rules?"

      Indeed, why not? It works so nicely in Ayn Rand's books, doesn't it?

      Italy had left its restaurant sector to market forces. Today it's hard to find a decent place to eat in Italy. That's why.

    • 24 July 2017 at 1:55am
      Amateur Emigrant says: @
      What? I spent two months in Italy last year and found it hard to find a bad place to eat. And I have high standards. France, on the other hand, was a culinary desert.

    • 24 July 2017 at 2:49pm
      cwritesstuff says: @ streetsj
      Because self-regulation is an untrammeled success?

      If you accept the need for regulations why do you object to the state (after consultation with the relevant industry) setting the regulation? I know I prefer things enshrined in law backed up by sanction to self-regulation.

    • 24 July 2017 at 2:50pm
      cwritesstuff says: @ deuchars48
      I don't disagree with this. However, the financial services regime is based on overarching principles with underlying rules. Actions can be taken for principle breaches alone, and are rarely challenged successfully.

  • 20 July 2017 at 8:01am
    Joe Morison says:
    I like the idea of there being 'a black legal whole after Brexit', it sounds about right.

  • 21 July 2017 at 6:33pm
    Bisenzio says:
    You allude to "the line of apostolic succession that has latterly issued in Jean-Claude Juncker". I hardly think the EU is equivalent to the Catholic Church, or that the EU is a closet Vatican: see Pope John Paul's reservations about the European (draft) constitution's omission of an explicit statement of Christian heritage: see and

  • 22 July 2017 at 8:06am
    cufflink says:
    Alas, no mention yet of the ultimate practical concern of just who will sanction our Euronasia. We may all have to adopt to Switzerland at a time of our choosing or remain ultra vires unless we have a personal fatness of purse to meet the situation.

  • 25 July 2017 at 8:05pm
    S. S. Stroh says:
    So interesting to read "Brexiter" in the title. In America, even Britain's best friends are calling them Brexiteers. Hmm.

    • 25 July 2017 at 8:26pm
      kooijman says: @ S. S. Stroh
      Another "Americanism" then? Or could it be an attempt at a pun?

  • 26 July 2017 at 2:35pm
    Tim Brooke says:
    Henry VIII, the first Brexiter? Really? Surely the title goes to Carausius, the Roman commander who unilaterally took Britain out of the Roman Empire and declared himself Emperor in Britain in AD 286. According to the Corinium Museum in Cirencester he then increased taxes and the use of forced labour and it all ended in tears. He was assassinated in AD 293 by the man he had put in charge of his treasury.

  • 5 August 2017 at 3:51pm
    immaculate says:
    Let's switch from bananas to tomatoes, since I don't like bananas very much.

    It's safe to assume that there are similar EU regulations governing tomatoes (Class I, Class II, etc) and that all tomatoes for sale in EU-zone supermarkets meet these regulated standards.

    Which is all well and good, except for the fact that most of these tomatoes don't taste much like tomatoes. Whereas some tomatoes I ate in Greece lately (off the back of lorry, literally but also perhaps metaphorically) most definitely tasted of tomatoes, despite being misshapen, lumpy objects that would probably rate them as Class XLVII. I've had the same experience with tomatoes from market stalls in Italy - ugly as hell (if you require regular smooth spheres), but delicious.

    So the regulations seem pointless - what's the virtue of tomatoes that appear to meet every regulatory criterion but taste of nothing?

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