Henry VIII powers are not a topic on everyone’s lips, but much thought has been given to them in legal circles over the past year or so, not just in relation to Brexit and the European Union (Withdrawal) Act 2018, but following the passing of the Coronavirus Act 2020 in response to the arrival of the pandemic on these shores.

Broadly, these powers describe the kind of legislation that leaves ministers the power to put the necessary detail of any proposed policy in delegated legislation, thus avoiding the detailed Parliamentary scrutiny applied to primary laws. So-called ‘skeleton Bills’ are popular because there’s no policy in them to scrutinise by either House of Parliament. The Henry VIII clauses feeding these Bills provide that a minister can do anything that is appropriate at some future date, or add or take away considerations such as public health or the environment in future subordinate legislation.

A Henry VIII clause is useful for unscrambling all the statutory provisions which derived from EU law, and no-one can claim it’s ultra vires if it is the whole purpose of the Brexit statutes, such as the 2018 Act, to allow subordinate legislation to get rid of the domesticated bits of EU law. This will be carried out under the umbrella of the European Union (Future Relationship) Act 2020.

Once you have a whole raft of delegated legislation made under these powers, they are theoretically subject to two kinds of procedure before they become enforceable: the affirmative and the negative resolution procedure. In practice, the vast majority of statutory instruments (SIs) use the negative resolution procedure. Here, there is a short period of time during which a Member of Parliament or the House of Lords can seek to introduce a notion to annul. Even if the affirmative resolution procedure is in play, which is where the secondary legislation does require positive endorsement by the House of Commons or the House of Lords, the reality is that the SIs are very rarely debated. Between 1950 and 2015, 170,000 SIs were laid before Parliament; only 17 times were they rejected. The rest went through exactly as they were drafted.

As Lord Anderson of Ipswich pointed out in an episode of Law Pod UK on the Public Law Project’s report on Henry VIII powers, the statutory instruments get longer and longer, and debates about them get shorter and shorter. This proliferation of delegated legislation is not healthy in a Parliamentary democracy, some think: Brexit and COVID-19 should be exceptional for skeleton Bills and Henry VIII clauses. Henry VIII powers give huge power, in other words, to ministers to amend or repeal Acts of Parliament by delegated legislation.

Lord Anderson referred to just one other brake on this flood of SIs: the motion of regret. This is a basic power of the House of Lords, for example, to say that it regrets that this SI is going to become law. The SI then falls altogether. The problem with the motion of regret is that it is so draconian that the House of Lords simply does not want to interfere in this way.

We revisited this subject in a later episode of Law Pod UK with Isabel Mcardle and Sarabjit (Sab) Singh of 1 Crown Office Row. Sab pointed to the Childcare Act 2016, s 4(2). This states that regulations may (d) amend, repeal, or revoke any provision made by or under an Act, whenever passed or made. That is effectively saying that ministers can, through delegated legislation, alter, repeal or revoke any Act of Parliament, even an Act not made when the 2016 Act was passed. This must be of serious concern because it involves government doing what should be done by Parliament with little serious scrutiny. In Sab’s view, Henry VIII powers undermine the very sovereignty of Parliament.

But what about the current circumstances? It is obvious that Parliament cannot debate everything at the leisurely pace that it has done in the past due to the pandemic, and there is the pressing need to adjust our laws to our new status following withdrawal from the European Union. Because we have lost the supremacy of EU law, the Withdrawal Act provides that everything that was an EU law until December 2020 remains part of domestic law. The government can alter that through secondary legislation; s 8 of the Withdrawal Act provides that a minister of the Crown can make secondary legislation to deal with ‘deficiencies’ with EU law that arise from our withdrawal from the EU. That has been subject already to an application for judicial review. We did see some debate prior to the passing of the Future Relationship Act, so it probably is possible to come up with some kind of procedural mechanism whereby Parliament does have some kind of input into laws that have wide policy ramifications. These shouldn’t really be left entirely to ministerial discretion.

And then there’s the issue of comprehensibility – laws which directly affect every detail of a person’s life, like the lockdown restrictions, involve so many dozens of pages of amendments which are confusing and can lead to misunderstanding and even inadvertent breach of the law through the sheer chaos of detail.

Fisheries, agriculture, tax are all areas where there may be challenges to the use of Henry VIII powers. In the customs context, there will be increased use of these powers just in practical terms because there isn’t time to pass laws properly through Parliament. But if that does happen, Sab foresees likely pushback from tax payers demanding proper debate in Parliament. Isabel refers to the Taxation (Cross Border Trade) Act 2018, s 51 of which provides that the appropriate minister may, by regulations made by statutory instrument, make such provisions relating to VAT, customs and excise, as that minister considers appropriate in connection with withdrawal from the EU. So that power doesn’t even require the minister to find that there is some kind of deficiency or something wrong with the interaction of the retained EU law with our domestic law, or for instance if there is a public body that may be missing from the operation of the retained public law because we no longer recognise that EU public body is part of our law. This just allows a minister to create legislation that they consider appropriate in consequence of, or in connection with, withdrawal from the EU.

Given there is such a huge superstructure of EU law in various areas of tax, such as VAT, there is likely to be more legislation made pursuant to s 51 which may be susceptible to challenge by judicial review if it is seen as ultra vires the scope of what Parliament intended when it passed s 51 giving ministers such broad power.

A good example is the Public Law Project’s judicial review against the Lord Chancellor, who had attempted to introduce a residence test for civil legal aid by amending primary legislation through regulation. The aim was to limit legal aid to those lawfully resident in the UK, with some exceptions such as asylum seekers. The Act itself did not create that restriction, but the minister claimed that the Henry VIII power bestowed by the Act permitted him to make such an amendment to primary legislation. Lord Neuberger in the Supreme Court said that subordinate legislation will be held by a court to be invalid if it has an effect, or is made for a purpose which is ultra vires, outside the scope of the statutory power pursuant to which it was purportedly made. Here the court effectively decided what the purpose of the primary Act of Parliament was: the challenging of civil legal aid, but not within the purpose was the exclusion of a group of people from legal aid. So the key to challenging regulations made under Henry VIII powers is to say that the Act in question has a particular purpose, and the regulations do something else, so they are ultra vires (R (Public Law Project) v Lord Chancellor [2016] UKSC 39, [2016] AC 153.

But the Withdrawal Act is surely just that. It may be very hard for a court to say that a regulation does not fall within this very broad purpose. On the other hand, the use of very general words in the Henry VIII power doesn’t necessary assist the Executive. Lord Neuberger quoted approvingly from a text book which said that although Henry VIII powers are cast in very wide terms, the more general words used by Parliament to delegate power, the more likely it is that an exercise within the literal meaning of the words will nevertheless be outside the legislature’s contemplation. In other words, if an Act states that regulations may amend any act or other general words to that effect, it is easy to argue that Parliament could not actually have intended for its role to be totally usurped by the minister through regulations, as a literal reading of those words would suggest.

These general wordings could be said to be something of an own goal – watch this space! 

Law Pod UK
With the help of producer Simon Jarvis at Whistledown Studios, Law Pod UK continues to enjoy terrific listener success, surpassing 500K listeners in July this year. I and my co-presenter Emma-Louise have interviewed Joshua Rozenberg, Professor Catherine Barnard, ECtHR President Robert Spano, former South African Constitutional Court judge Kate O’Regan, Dame Philippa Whipple and David Anderson QC, collaborated with ALBA, HRLA, ELF and the PLP, been recommended by the Times, the ICLR and the Attic and been cited by Lord Hodge among others.
Three more episodes came out before the August break – one general update on clinical negligence, one on vicarious trauma suffered by lawyers involved in distressing cases, and one from our Brighton team on the separation of mothers from babies.
As you can see, Law Pod UK reaches across a broad range of topics, not limited to the main practice areas of 1 Crown Office Row. There’s something for everyone who is interested in the legal angle of current events, and the news angle of legal developments.