Why Henry VIII Clauses Should be Consigned to the Dustbin of History
The Government sometimes adds a provision to a Bill which enables the Government to repeal or amend it after it has become an Act of Parliament. The provision enables the amendment of primary legislation using delegated (or secondary) legislation. Such provisions are known as ‘Henry VIII clauses’. The House of Lords Select Committee on the Scrutiny of Delegated Powers in its first report of 1992-93 defined a Henry VIII clause as: a provision in a Bill which enables primary legislation to be amended or repealed by subordinate legislation, with or without further Parliamentary scrutiny. [HL 57 1992-93, para 10]. Even if there is ‘scrutiny’ it will be perfunctory: instead of weeks or even month of consideration by committee and in the various stages of the legislative process - Parliament gets, at most, the opportunity to vote for or against the measure - no amendment is possible.
To students of ‘1066 and All That’ Henry VIII was a dangerous tyrant and ‘a bad thing’. In 1539 he persuaded a supine parliament to pass the Statute of Proclamations giving the king's decisions the same force as acts of the legislature; hence the name Henry VIII clause.
Author: Richard Gordon QC
Publication date: November 6 2015