Wednesday 17 November 2010

The Coalition's use of Henry VIII powers to weaken Parliament

The Coalition government has made much of its commitment to strengthen Parliament.

So one would think it would want as little as possible to do any massive extension of "Henry VIII" clauses - introducing powers to enables primary legislation to be amended or repealed by ministers, with or without further Parliamentary discussion. (Keen historians may know that this relates to Henry VIII's Statute of Proclamations of 1539).

Think again.

The Public Bodies Bill - which abolishes as many quangos as possible - gives ministers astonishingly leeway to amend all legislation.

The House of Lords Delegated Powers and Regulatory Reform Committee could not be clearer in its latest report that this goes much too far, and would be an important weakening of Parliament.

This Committee was established by the House as a result of "considerable disquiet over the problem of wide and sometimes ill-defined order-making powers which give Ministers unlimited discretion".[1] The powers in this Bill as it is currently drafted fall into that category. The Committee is instructed by the House in its terms of reference "to report whether the provisions of any bill inappropriately delegate legislative power".

The Committee considers that the powers contained in clauses 1 to 5 and 11 as they are currently drafted are not appropriate delegations of legislative power. They would grant to Ministers unacceptable discretion to rewrite the statute book, with inadequate parliamentary scrutiny of, and control over, the process


The Bill confers powers on Ministers to make very significant changes. All orders under the Bill may amend or repeal any Act of Parliament and are thus Henry VIII powers. Orders under the Bill may even amend or repeal Acts of Parliament which have not yet been passed by Parliament (clause 27(2)).

The exercise of those powers is in each case made subject to the affirmative procedure. But that procedure cannot in any circumstances be regarded as a substitute for a bill, for two reasons in particular. First, as is normal with secondary legislation, the orders are considered only once and are unamendable, however much material the order contains. Second, in practice, it is very rare for either House to vote down subordinate legislation, whatever its concerns about them.

Indeed, no such instrument has been voted down by the Commons since 1969 - over forty years - as Stephen Gummer reported on LabourList.


Sciamachy said...

These kinds of Henry VIII clauses are and have always been a bad idea. The Condems aren't the only ones to have introduced them, & I fear that by introducing them in acts like the Digital Economy Act, Labour may have handed the Condems a loaded gun. Is there any way we can get a guarantee from Labour that there'll be no more of this type of legislation once back in?

Anonymous said...

I should remind you of the rather mildly named deregulation bill that Labour tried to pass that would have allowed not just Ministers but people appointed by Ministers to delete whole swathes of legislation.

That bill became known as the Abolition of Parliament Bill.

If this bill does the same it needs to be fought with the same vigour.

13eastie said...

When considering the Government's respect for Parliament, it's confusing that you should cite a House of Lords committee of all things...

Would this be the same House of Lords that Labour "reformed" by decimating and then stuffing with ill-qualified party stooges and donors? Where we now might encounter the likes of the "noble" Baroness Uddin et al.?

And which, even after being thus bought, was battered with the Parliament Act repeatedly?

Remind us which Parliamentary Committee was it that proposed the exemption of Formula 1 from tobacco advertising legislation?

And whence came the "evidence" that convinced Parliament to vote for invading Iraq?

If Labour is the champion of Parliament, I'm Dennis Skinner.