Lord Judge ~ Ceding power to the Executive

Most members of the public would be surprised to learn that Parliament frequently hands to Ministers massive powers to make legislation.  The outcome is an enormous volume of material and that is, in itself, a cause for concern.  Whilst Parliament exercises some controls over this "Ministerial legislation" it is more often than not quite minimal.  Even more concern arises from the insertion of Henry VIII provisions into many Acts of Parliament.  Here is a brief look at the issue.

Henry VIII clauses:

The Childcare Act 2016 is, by any standards, a very short Act with a mere 8 sections.  The Act requires the Secretary of State to secure free of charge childcare for qualifying children of working parents for, or for a period equivalent to, 30 hours in each of 38 weeks in any year.  

To enable the Minister to do this he is given extensive powers to make "Regulations" and those regulations may, amongst other things, amend, repeal or revoke any provision made by or under an Act (whenever passed or made).

This is an example of a so-called Henry VIII power - a reference to the despotic Tudor King.  In essence, the Minister is empowered to write the detailed law.  The Childcare Act is therefore little more than skeleton legislation enabling Ministers to devise a scheme and enact legislation to implement it.  Flexibility to alter the scheme is retained without the need to go back to Parliament to seek an amending Act.

Another example of Henry VIII in action is section 51 of the Constitutional Reform and Governance Act 2010 which enables Ministers to "amend, repeal or revoke" any "existing statutory provision." 

Parliament should ensure that - (a) any such clauses inserted into legislation are strictly justified and (b) that there is adequate control over legislation made using such powers.  Unless Parliament does those things then Ministerial power (that is Executive Power) is increased at the expense of Parliamentary control over the executive.

Often, Parliament will require that any legislation made under such powers requires an affirmative resolution of each House of Parliament. In practice, debate on the detail will not usually be extensive and there is no power to amend the draft legislation.  It has to be either affirmed or rejected.  Parliament could alter that arrangement if it were to be so minded.

Concern and criticism:

Concern about Henry VIII clauses is not new but, in recent years, there has been repeated criticism.  

Lord Judge of Draycote had  a distinguished judicial career culminating in him being Lord Chief Justice from 2008 to 2013.   On 13th July 2010 he spoke at The Mansion House, London and, as part of his speech, he expressed serious concern at the extensive and growing use of Henry VIII powers  - Lord Judge's 2010 speech may be read here and Joshua Rozenberg published an article about it in The Guardian 15th July 2010.

Recently, in a speech at King's College London on 12th April 2016, Lord Judge has renewed his attack on such powers.  His speech concluded by saying  - "Unless strictly incidental to primary legislation, every Henry VIII clause, every vague skeleton bill, is a blow to the sovereignty of Parliament. And each one is a self-inflicted blow, each one boosting the power of the executive. Is that what we want? Is that how our constitutional arrangements must continue to develop? Should we allow the powers of the executive to increase and the sovereignty of Parliament to be diminished?

Examples of others criticising the use of Henry VIII clauses are:

Richard Gordon QC - Why Henry VIII clauses should be consigned to the dustbin of history.

House of Lords Delegated Powers and Regulatory Committee - 3rd report of session 2012-13.

House of Lords Constitution Committee - 9th report 2015-16

In his latest speech, Lord Judge noted how the Parliament of the day reacted to the Statute of Proclamations 1539 by placing some limits on the use of Proclamations by the monarch.  Perhaps there is a lesson there for modern Parliamentarians though they will have to find time in a busy Parliamentary schedule that is largely controlled by the executive!  Certainly, the reports of the various committees seem to have been placed in the dustbin!