The Omnibus Henry VIII Bill?

The Legislative and Regulatory Reform Bill now before Parliament apparently grants ministers the power to make or change legislation by regulation.

"Henry VIII powers" is the Westminster slang for legislation which confers on Ministers the ability to amend Acts of Parliament by regulation. (If anybody knows why, please let us know in the comments.) 

Some Bills contain Henry VIIIth clauses to enable ministers to amend the operation of the new policy in the light of experience.  Parliament has been sceptical of any proposals to grant such powers, unless they are very tightly defined and limited, as they can provide the Executive with powers to amend legislation to implement policies which have not been scrutinized by Parliament. Such Henry VIIIth clauses are often either thrown out, or amended to limit the circumstances in which the powers can be exercised.

Presumably because they had become frustrated at their inability to sneak such powers into each piece of legislation, the government appears to have decided to go for the sledgehammer approach instead, by proposing a general Henry VIIIth power.  I am not a lawyer, but the new bill seems to me to be drawn very widely:

A Minister of the Crown may by order make provision for either or both of the following purposes—

(a) reforming legislation;

(b) implementing recommendations of any one or more of the United Kingdom Law Commissions, with or without changes.

There are some conditions on the use of these powers, but they do not offer much reassurance:

(a) the policy objective intended to be secured by the provision could not be satisfactorily secured by non-legislative means;

(b) the effect of the provision is proportionate to the policy objective;

(c) the provision, taken as a whole, strikes a fair balance between the public interest and the interests of any person adversely affected by it;

(d) the provision does not remove any necessary protection;

(e) the provision does not prevent any person from continuing to exercise any right or freedom which that person might reasonably expect to continue to exercise.

To my eye, this seems to be the mother and father of all Henry VIII powers.  I expect we will be told that, like the abolition of local council   elections which has been floated this week, these changes will make the business of government much more efficient and streamlined.  No doubt there is some truth in that; but there are other criteria which are also important in determining the arrangements by which we want to be governed.

See more at The Last Ditch, Bishop Hill and Talk Politics

18 comments on “The Omnibus Henry VIII Bill?”

  1. Flitcraft  – Thanks.  That is absolutely fascinating.  It is a chilling pre-cursor of the language and arguments we hear today:

    considering also that sudden causes and occasions fortune many times which do require speedy remedies, and that by abiding for a parliament in the meantime might happen great prejudice to ensue to the realm …
    the king for the time being, with the advice of his honourable council, whose names hereafter followeth, or with the advice of the more part of them, may set forth at all times by authority of this act his proclamations, under such penalties and pains and of such sort as to his highness and his said honourable council or the more part of them shall see[m] necessary and requisite; and that those same shall be obeyed, observed, and kept as though they were made by act of parliament for the time in them limited …

    The King is Dead, Long Live the King!

  2. Have you forgotten the dreadful Henry VIII powers already on the Statute Book in the Civil Contingencies Act 2000 Part 2 Emergency Powers ?This neither the Civil Contingecies Act nor Bill have any  exemptions for "constitutional Acts of Parliament" like Mahgna Carta, the Bill of Rights, European Community Acts  etc.Under this Bill, it is not just Statutes, but also Orders and Regulations and the Common Law which can be repealed, amended or replaced.

    At least the Civil Contingencies Act ended up being constrained from amending the Human Rights Act (not much of a concession given the number of loopholes in that Act for "national security" or for "public health"). Unlike the Civil Contingencies Act, the Legislative and Regulatory Reform Bill could be used to modify itself.

    This Bill could easily be used for example, to arbitrarily broaden the definition of terrorism, by Order, for offences carrying a life sentence. It is noticable that the section on "consultations", manages to avoid the simple requirement for a full public consultation, under the 12 week Cabinet Office Code of Practice. Instead only selected organisations or individuals who might be affected by any changes may perhaps be consulted, at the whim of a Minister.Why are NuLabour so scared of fully informed public consultations and detailed Parliamentary scrutiny ?

  3. It’s perhaps not quite as outrageous as it looks at first sight, given the provision in Section 10 (and the sections immediately following s. 10 which flesh it out) for a degree of parliamentary scrutiny of Orders made under the Act (Bill):

    10  Procedure: introductory

    (1)  An order under section 1 must be made by statutory instrument.

    (2)  A Minister may not make an order under section 1 unless—

        (a)  he has consulted in accordance with section 11;  

        (b)  following that consultation, he has laid a draft order and explanatory document before Parliament in accordance with section 12; and

    (c)  the order is made, as determined under section 13, in accordance with—

        (i)   the negative resolution procedure (see section 14);

        (ii)  the affirmative resolution procedure (see section 15); or

        (iii) the super-affirmative resolution procedure (see section 16).

    What do the usual suspects — Bob Marshall Andrews and co. — and the civil liberties watchdogs like Liberty make of the Bill?  Do we know?
    (I hope the paragraphing of this will be preserved!)

    Brian
    http://www.barder.com/ephems/

     
     

  4. <a href="http://considerphlebas.blogspot.com/2006/02/reichstag-fire-postponed.html#comments"Consider Phebas</a> reckons that it’s a storm in a teacup too.  I hope he’s right.  The consultation processes look like a farce to me. The minister is only required to "have regard" to their outcome. Besides that, how can Parliament be expected to scrutinise these orders when they don’t get to examine them in detail. One assumes that Parliamentary time is not going to be set aside to scrutinise their contents? 

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Owen Barder

Owen is Senior Fellow and Director for Europe at the Center for Global Development and a Visiting Professor in Practice at the London School of Economics. Owen was a civil servant for a quarter of a century, working in Number 10, the Treasury and the Department for International Development. Owen hosts the Development Drums podcast, and is the author Running for Fitness, the book and website. Owen is on Twitter and