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
Flitcraft · February 9, 2006 at 5:07 pm
It’s after the 1539 Statute of Proclamations which gave the King’s proclamations the force of Law. It was repealed after Henry’s death in 1547. Text is here http://www.constitution.org/sech/sech_074.txt (scroll down for it)
Owen · February 9, 2006 at 7:52 pm
Flitcraft – Thanks. That is absolutely fascinating. It is a chilling pre-cursor of the language and arguments we hear today:
The King is Dead, Long Live the King!
dearieme · February 9, 2006 at 8:15 pm
Look for the silver lining. Maybe he’ll behead Ms Greedie Boot.
Watching Them, Watching Us · February 10, 2006 at 4:31 am
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 ?
Watching Them, Watching Us · February 10, 2006 at 4:33 am
Aaargh ! What happened to the paragraph breaks ?
Brian B · February 10, 2006 at 10:13 am
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):
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/
Bishop Hill · February 10, 2006 at 11:37 am
<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?
Brian B. · February 15, 2006 at 3:39 pm
The Times has now entered the lists on this — as helpfully pointed out to us in another place by Matt. Perhaps this will get the issue out of the rarefied air of the blogosphere and into the general consciousness. Brian http://www.barder.com/ephems/
EU Serf · February 22, 2006 at 7:37 am
I guess you were the first with this. Now we have jumped on the bandwagon and prepared a list of questions for MPs regarding the bill.
http://rightlinks.co.uk/linked/modules/AMS/index.php
It certainly doesn’t look like a storm in a teacup to me.
qwghlm.co.uk : Fuck me, you’ve got to be joking · February 9, 2006 at 2:30 pm
[…] (via Murky; more commentary from Talk Politics and Owen). […]
Tim Worstall · February 10, 2006 at 3:29 am
Timmy Elsewhere….
Shortie at the ASI. I have to admit, when I first saw something about this Bill currently before Parliament my blood rather ran cold. Since I actually sent that piece in I’ve seen that Owen has more on the background…
Paul Leake: absit invidia verbo » Blog Archive » Parliament-lite · February 10, 2006 at 4:38 am
[…] Maybe I’m sentimentally attached to the idea that MPs and peers make laws by receiving a bill, considering the principle, considering amendments and then giving approval to the final form before sending it to HM to sign. Maybe it’s just me who thinks Parliament’s most important input on Government proposed legislation is actually making sure the detail is right (through amendments)- given that the principle of the Bill is often derived from a manifesto. Maybe its just me who finds the Legislative and Regulatory Reform Bill which increases Minister’s powers to amend primary legislation law by order (with MPs generally able only to approve or reject in whole) rather worrying. Just because something has been recommended by a Law Commission doesn’t mean that its uncontroversial or that the legislation based on those recommendations is well drafted. Oh, it’s not just me [link] […]
Tony Hatfield's Retired Ramblings · February 13, 2006 at 6:54 am
Wrong Target?…
Owen here and Talk Politics here are getting all of lathered up by Henry VIII clause in the Legislative and…
Tony Hatfield's Retired Ramblings · February 13, 2006 at 6:54 am
Wrong Target?…
Owen here and Talk Politics here are getting all of lathered up by Henry VIII clause in the Legislative and…
Ephems of BLB · February 16, 2006 at 3:44 am
By-passing parliament: the blogs got there first…
An open e-mail to Daniel Finkelstein for being the first to air nationally the scandal of a Bill empowering ministers to make new laws without troubling parliament [more >>>]……
Murky.org · February 25, 2006 at 4:40 am
Letters to the Lords regarding the Totalitarianism Bill…
As regular readers of this website will know, I have become concerned with the Legislative and Regulatory Reform Bill, as seen in these previous articles. Therefore it’s time for another letter writing campaign. This time I’m sending letters to……
Murky.org · February 25, 2006 at 7:11 am
Serious question on the Totalitarianism Bill deflected…
In a shameful display, Geoff Hoon (Labour) deflected a perfectly reasonably question upon the ‘Legislative and Regulatory Reform Bill’ from David Howarth (Lib Dem). David Howarth said: I hope that the Leader of the House has had a chance to……
Murky.org · February 25, 2006 at 9:40 am
Letter to Michael Gove MP regarding the Totalitarianism Bill…
Adapted from the letter to various Lords, this is the letter sent to my MP, Michael Gove (Tory), see also these previous articles…….
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