Henry VIII clauses - a pernicious habit

Some extracts below from the Lord Chief Justice's Mansion House speech (emphasis mine). It turns out that our proud constitutionless democracy is less of a democracy than even I had thought (though just as proud).

...my deepest concern at the moment is directed to the increased use of what are described as Henry VIII clauses...

Henry VIII was a dangerous tyrant. The Reformation Parliament made him Supreme Head of the Church, the representative of the Almighty on earth – hardly an encouragement to humility: it altered the succession at his will: it changed the religion backwards and forwards, at his will: they were a malleable manageable lot. And there is a public belief that the Statute of Proclamations of 1539 was the ultimate in supineness. The Act itself was repealed within less than 10 years, immediately after his death in 1547. But it had allowed the King’s proclamations to have the same force as Acts of Parliament. That is a Henry VIII clause...

Consider the Banking (Special Provisions) Act 2008 enacted in the hurricane of the banking crisis. It granted the Treasury, presumably the Prime Minister and First Lord of the Treasury, the power to make:

“(a) such supplementary, incidental or consequential provision, or
(b) such transitory, transitional or saving provision, as they consider appropriate for the general purposes, or any particular purposes, of this Act…”

But the power goes further. It expressly provided that an order may

“(a) disapply (to such extent as is specified) any specified statutory provision or rule of law;
(b) provide for any specified statutory provision to apply (whether or not it would otherwise apply) with specified modification.”

So we have an Act of Parliament which expressly grants to the Treasury power to disapply any other relevant statute bearing on the provisions of the 2008 Act or indeed any rule of law.

The same process is at work with section 51 of the Constitutional Reform and Governance Act 2010. This enables any Minister of the Crown, by order to make such provision as he or she considers appropriate in relation to any provision of the Act. The Act, as it says, relates to our constitutional affairs. The order may:

“(a) amend, repeal or revoke any existing statutory provision,
(b) include supplementary, incidental, transitional, transitory or saving provision.”

So the new constitutional arrangements can be revisited by ministerial order, directed not merely to amendment repeal or revocation of any provisions in the Act itself, but directed at any of our existing statutory provisions.

...

I have tried to pursue this question and recently read two letters from the Ministry of Justice on this topic. And it made alarming reading. First, it is clear that there is no routine method for collecting information about Henry VIII clauses. Doing the best the Ministry could, during the parliamentary session up to 10 November 2009 there were I quote “around 70 such powers contained within the legislation enacted so far”. The information is that at least 10 of them were not new, but were re-enactments, and 15 of them contained provisions allowing consequential amendments. Between 10 November and the end of the parliamentary session for 2008-09 there were some 53 additional such clauses, of which 10 were provisions allowing for consequential amendments, and 5 enabled the proper functioning of pilot schemes. So we are talking of over 120 Henry VIII clauses in one parliamentary session. Does this surprise you? It certainly astonishes me.

It is said in the letters that they are only used when there is a substantial call for them, no practical alternative for dealing with the issue in the original legislation, and that such powers are rarely wide-ranging. Well, the two Acts of Parliament to which I have referred seem to me to be very wide-ranging indeed.

You can be sure that when these Henry VIII clauses are introduced they will always be said to be necessary. But why are we allowing ourselves to get into the habit of Henry VIII clauses? Why should we? By allowing them become a habit, we are already in great danger of becoming indifferent to them, and to the fact that they are being enacted on our behalf. I do not regard the need for affirmative or negative resolutions as a sufficient protection against the increasing apparent indifference with which this legislation comes into force. To the argument that a resolution is needed, my response is, wait until the need arises, and go to Parliament and get the legislation through, if you can. I continue to find the possibility, even the remote possibility, that the Treasury may by order disapply any rule of law, or a Minister may change our constitutional arrangements, to be rather alarming. Of course I am not suggesting that any of the Ministers with whom we were dealing before June, or any of the Ministers we are dealing with now are intent on subverting the constitution. I know that. You know that. But, and it is, I suggest, a very important but: history is long as well as short, and what’s to come is always unsure.

...

Half a moment’s thought will demonstrate that proliferation of clauses like these will have the inevitable consequence of yet further damaging the sovereignty of Parliament and increasing yet further the authority of the executive over the legislature. If I may adapt a phrase, if this is the way things are going, the powers of the executive have indeed increased, are indeed increasing, and I suggest that before we get anywhere near the Great Repeal Act, Henry VIII clauses should be confined to the basement of history along with the Act of Proclamations repealed in 1547. We must break what I believe to be a pernicious habit.

Some commentary at the Human Rights Blog