Henry VIII Powers

Readers may be interested in this post via the Public Law for Everyone website on Henry VIII powers. In it, Professor Mark Elliott, Legal Adviser to the House of Lords Constitution Committee, highlights the apparent normalisation of Henry VIII powers in the UK.

Henry VIII powers arise where a Bill permits the statute to be later amended or repealed by the Executive using delegated legislation and often without further reference to the parliament. The reference to Henry VIII comes from the passage, by the English Reformation Parliament and at the urging of King Henry VIII, of the Statute of Proclamations Act 1539, which gave Henry the power to make laws. Following its enactment and until its repeal upon King Henry’s death in 1547, a fiat issued by the sovereign was to be treated just as any law passed by the parliament.

The vestiges of this approach, along with the obvious democratic problems created by it, remain with Henry VIII clauses.

In addition to exploring recent correspondence between the Shadow Human Rights Minister Andy Slaughter MP, the House of Commons Procedure Committee and the Cabinet Office about the extent to which Henry VIII powers are being used in the UK, Professor Elliot also touches on the Australian experience and papers by Stephen Argument and Professor Cheryl Saunders:

…I draw attention to two excellent papers by Stephen Argument and Professor Cheryl Saunders offering views from Australia in relation to executive law-making. As well as addressing the position in Australia, Stephen Argument offers a thoughtful and incisive analysis of the proposals concerning executive law-making in the UK put forward by the Strathclyde Review, and about which I wrote in an earlier post. Both papers — which, among other things, illustrate that the sort of concerns that arise in relation to delegated legislation in the UK are far from unique — form part of the Australian Senate’s Occasional Lecture Series, and can be accessed via the Parliament of Australia’s website.

The ACT Legislative Assembly website also has a wonderful primer on Henry VIII clauses prepared by Stephen in his capacity as a legal adviser to the Assembly’s scrutiny of legislation committee (currently the Standing Committee on Justice and Community Safety (Legislative Scrutiny Role).

Explaining the problem with Henry VIII powers, Stephen leads off with an exuberant tale conceived by Professor Douglas Whalan, the first legal adviser to the ACT Legislative Assembly’s scrutiny committee, long time adviser to the Senate’s Standing Committee on Regulations and Ordinances and adviser to the Senate’s own scrutiny committee:

“Gather around, children, and listen to this Grimm fairytale:

Once upon a time, a very long time ago, there lived a very wicked king – and he was a king with a capital “K”. The name of this king was King Henry VIII. He was a very large man,… we also had it on good authority that he ate very large meals,… he certainly had a large number of wives, admittedly most of them only for a short period of time. He also decided to have very large powers to make laws, and so it came to pass that this large King ensured that there was an Act. And if this very large King hadn’t got his Act, probably someone would have got an axe. This Act was called the Statute of Sewers. That is not sewers as in Suez Canal, because this was long ago in 1531. The Statute of Sewers really was a stinker.  As the Donoughmore Committee said:

‘The Statute delegates legislative powers, taxing powers and judicial powers.’

Ever since  then, those good fairy godmothers, Parliament and scrutiny committees, have been trying to undo that kind of excessive grant of power. And but for those Parliamentary scrutiny committees and the courts, we would have all lived very unhappily ever after.  Even today there are still some “Henry VIII clauses”, so we all remain relatively miserable.”

Also of interest: Why Henry VIII Clauses should be consigned to the Dustbin of History by Richard Gordon QC.


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