Understanding Regulation

The power to amend Acts of Parliament 'by order' is known as a 'Henry VIIIth power', a slightly tongue in cheek reference to King Henry VIII's supposed preference for legislating via Royal Proclamations rather than through Parliament.

But there was - even before Brexit - huge concern that such powers were used far too liberally and that the House of Commons, in particular, had almost given up on scrutinising much very important legislation - see, for instance, the IfG's comment on Statutory Instruments here. And this issue has become even more prominent following the passing of the EU (Withdrawal) Act 2018 which contains (probably) necessary but certainly extensive powers for Ministers to legislate without involving Parliament.

The problem is summarised very well in these extracts from Ceding Power to the Executive; the Resurrection of Henry VIII, a lecture given by The Rt. Hon Lord Judge  in April 2016.

The Lecture

"When we speak of Henry VIII clauses, we believe we are referring to the Parliament which enacted that statute and vested arbitrary and dictatorial powers to that terrifying monarch. In doing so, we insult the memory of many brave ... members of the Commons. I venture to suggest that they would have been appalled at the modern legislative habit of bestowing what we call Henry VIII powers on any old Secretary of State, and insulted that we dismiss them in this way. ...

"The Childcare Act 2016 ... is a skeletal act whose objective it to make provision for free childcare available to working parents. It says very little, but it creates huge ministerial powers. When it was a Bill, the Constitution Committee complained ‘legislation of this type increases the power of the executive at the expense of Parliament.’ It was described by the Delegated Powers Committee in unequivocal language. In our view, the government’s stated approach to delegation is flawed. While the Bill may contain a legislative framework, it contains virtually nothing of substance beyond the vague ‘mission statement’ in clause 1. ... To discharge this mere ‘mission statement’ power has been given to the Secretary of State to legislate by regulation. It includes eleven specific regulation making powers, including regulations to confer powers on Revenue and Customs, regulations to create criminal offences, regulations to impose financial penalties, and indeed identifies the relevant level of sentence.

"Over and above all this regulations may:

a) confer a discretion on any person;
 b) make different provision for different purposes;
c) make consequential, incidental, supplemental, transitional or saving provision;
d) amend, repeal or revoke any provision made by or under an Act (whenever passed or made.)

"No notice whatsoever can have been taken of the powerful comments by the Committees vested with responsibility for overseeing our constitutional arrangements. A discretion given to ‘any’ person: I emphasise, ‘any’ person, presumably someone identified by, and agreeable to, the executive: power to repeal any existing, or indeed any statute even one not yet enacted. What on earth do you think the Commons of 1539 would have called such a provision? I think their language would have been unprintable, and the Speaker might have wondered why he had risked incarceration in the tower. ...

"1688 and the years since have provided us with simple constitutional principles. Forgive me trying to spell out two sentences what could occupy a very large tome. It is the exclusive responsibility of Parliament to make, or amend or repeal, the laws which govern the country. It is the responsibility of the executive to govern the country in accordance with those laws. For today’s purposes I need not add the responsibility of the judiciary to ensure that all those exercising power exercise it lawfully. All this is simple enough until, exercising its legislative sovereignty, Parliament delegates part of the law-making responsibility to the executive, and when it does so retains very little more than, in reality, nominal control. That is where the crunch is found, and my concern arises.

"This is not an attack on delegated legislation. Delegated legislation is essential. Call it secondary or subsidiary legislation, the legislative process would collapse if questions of administration, like, for example, the height of the pavements in the street, or the correct design for the speed limits on the roads were to be the subject of primary legislation. ... [But] what was once a small stream of delegated legislation ... has become an inundation. And as the committees have noted, now focus on policy issues as well as administration. Since 1950, sixty-five years, some 170,000 statutory instruments, prepared not by Parliamentary Counsel but by government departments, exercising powers granted by legislation, have been laid before Parliament. In that time seventeen, not seventy, have been rejected by one or other house. Even I can do the maths. It is one in ten-thousand, 0.01%. Since 1997 there have been twenty-three thousand such instruments, with a further eight thousand in Scotland, and nearly four thousand in Northern Ireland since 2007. Five, now six, have failed in the Lords.

"... the stark reality is that the last time the Commons – the elected chamber – rejected a statutory instrument was in 1979, over thirty-five years ago. As the House of Lords, between 1968 and today, it has rejected six such instruments, and what a kerfuffle the most recent occasion last autumn caused. ... The result of the adverse vote was the setting up of the Strathclyde Review. Apparently this vote placed democracy under threat. All the issues are examined in the reports of the Committees to which I referred at the beginning of the lecture. For today’s purposes I want to make a distinct point. This was legislation about £ 4.5 billion (by savings or cuts - take your political pick) with unenviable consequences for many, proceeding by way of regulation under the Tax Credits Act 2002, not primary legislation. It is not unreasonable to wonder whether those members of the Commons who voted in favour of the 2002 Act ever envisaged a proposal involving such sums affecting so many people proceeding by the regulatory power created by section 66 of the Act. Yet they did. And the attempt to deal with Tax Credits in this way, whatever criticism may be made, was lawful. And the response of the Lords was constitutionally appropriate. ...

"Perhaps one surprising feature about Henry VIII clauses is that they are enacted by the government with a Parliamentary majority without apparent recognition of the simple reality of political life, that the electoral wheel turns and power moves from one party to another, so that in due course the ministers of the opposition party, now in government, are themselves able to deploy the very same Henry VIII clauses to achieve their own contrary policies. Although not arising from a Henry VIII clause, the tax credit row provided a clear warning of how this could happen."

Comment

Here are links to the full lecture and the three reports mentioned therein.

Martin Stanley

Henry VIII Powers

The Lecture

Comment