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.