Delegated Legislation

Part of the debate – in the House of Lords at 5:04 pm on 14th January 2003.

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Photo of Lord Dahrendorf Lord Dahrendorf Liberal Democrat 5:04 pm, 14th January 2003

My Lords, the special report by the Select Committee on Delegated Powers and Regulatory Reform on Henry VIII powers is in one sense highly technical. It is concerned with the proper wording of certain enabling clauses which appear in many Bills before this House. In another sense, however, this technical report goes right to the heart of the key constitutional question of the limits of executive power, and of the ability as well as the duty of Parliament to prevent the unchecked extension of these limits.

Let me remind the House of the immediate reason for the Delegated Powers Committee report. In the course of the Third Reading of the Nationality, Immigration and Asylum Bill on 31st October 2002, the Government introduced an amendment to the effect that,

"The Secretary of State may by order make provision which he thinks necessary in consequence of or in connection with a provision of this Act".—[Official Report, 31/10/02; col. 417.]

The Delegated Powers Committee happened to meet on the day between the tabling of this amendment and the Third Reading debate. It reacted with the promptness which the House has come to expect of it. While the committee accepted the thrust of the amendment which it found had numerous precedents, it commented adversely on the late tabling of

"a significant Henry VIII power" which made effective scrutiny impossible, and also on the vagueness of the reasons given for the amendment. Your Lordships were less charitable in the ensuing debate and used strong language to express their feelings. For example, the noble and learned Lord, Lord Mayhew of Twysden, said,

"I regret to have to say this, but I should feel ashamed if I were a member of any government who brought forward a provision of this character at any stage of a Bill, let alone at Third Reading".—[Official Report, 31/10/02; col. 301.]

The noble Lord, Lord Renton, at col. 302, added for good measure:

"I have been in Parliament for 57 years and I have never known any provision that went as far as this one".

The right reverend Prelate the Bishop of Guildford, also at col. 302, concurred for his own reasons:

"A wide-ranging and general power of this sort is open to deep question when it relates to people with the sort of vulnerability who are dealt with by this legislation".

After a Division confirming that this was indeed the majority view of your Lordships' House, the Government amended the clause to say,

"The Secretary of State may by order make consequential or incidental provision in connection with a provision of this Act".

The amendment, in this more specific and restricted form, the House found acceptable. In the course of the debate on Commons amendments on 6th November 2002 which led to this conclusion, I promised the House a report on the precedents and arguments for Henry VIII clauses of this kind. The noble Lord, Lord Filkin, speaking for the Government acknowledged this intention and added:

"No doubt the Government will want to reflect on [the Delegated Powers Committee's] comments and give their views on any report that it produces".—[Official Report, 6/11/02; col. 766.]

Here, then, is the opportunity to do so.

The report is brief but it has a long history. After all, Henry VIII's infamous Statute of Proclamations—enabling the king to legislate by royal proclamation rather than due parliamentary process—was issued in 1539. It had a relatively early sunset as it was repealed on the king's death in 1547. The statute was not then called a Henry VIII power. In fact, I had some difficulty tracing the origin of this intriguing "nickname" as the then Chairman of Committees, Lord Donoughmore, called it in his 1932 report by a committee on Ministers' powers. When our legal adviser asked the omniscient Internet about Henry VIII powers, the ever mysterious Web came up, lo and behold, with our own report, which we are debating today, which was flattering for your Lordships' Delegated Powers Committee but less than wholly informative. Fortunately, it is clear what the powers in question are about.

The first report by the Select Committee on the Scrutiny of Delegated Powers, as it was then called, in 1993 stated:

"A 'Henry VIII' clause is a provision in a Bill which enables primary legislation to be amended or repealed by subordinate legislation with or without further Parliamentary scrutiny".

In an address to the Commonwealth Conference on Delegated Legislation in 1989, the first chairman of the Delegated Powers Committee—the late Lord Rippon of Hexham—cast the net wider and defined the "so-called 'Henry VIII' clause" by referring to,

"the way in which primary legislation includes clauses providing that the Minister may amend or at times even repeal not only the primary legislation by order but sometimes other Public or even Private Acts".

It is worth reminding the House that in 1989 Lord Rippon emphasised how rare such clauses had been after the first one appeared in the Local Government Act 1888. Between that Act and 1932—in other words, in 44 years—there were only nine instances of such clauses, all of limited scope and validity and usually coupled with a sunset clause. Lord Rippon deplored the fact that by the late 1980s Henry VIII clauses were used,

"in Act after Act on a scale that would have been absolutely unthinkable until recently".

He explained this sprouting of executive powers by insufficient,

"forethought in drafting the legislation" and warned,

"Ministers now take power to amend and even repeal primary legislation almost as a matter of common form . . . In effect we are continually passing legislation which virtually permits Governments to make new laws as they go along".

I have already referred to the Donoughmore Committee set up 60 years earlier, in 1929, which reported in April 1932. To the present day, that report is the most detailed and trenchant analysis of delegated powers, of their origins and their less than felicitous effects. Lord Donoughmore commented on the growing number of laws and the shortage of time for parliamentary scrutiny, on the curiously unsystematic growth of delegated powers and on the need to heed what the Select Committee called the two "distinguishing characteristics" of delegated legislation,

"one positive and the other negative".

I quote from the committee report:

"The positive characteristic is that the limits of the delegated power are defined so clearly by the enabling Act as to be made plainly known to Parliament, to the Executive and to the Public, and to be readily enforceable by the Judiciary.

The negative characteristic is that the powers delegated do not include power to do certain things, namely—

(i) to legislate on matters of principle or to impose taxation;

(ii) to amend Acts of Parliament, either the Act by which the powers are delegated, or other Acts".

I shall not dwell further on the parliamentary history of Henry VIII powers except to emphasise that today, as three-quarters of a century ago, it is important to resist what Lord Donoughmore called, "executive autocracy" even if one agrees with him that the comparison of current governments with Henry VIII "is certainly far-fetched".

In the light of these reminiscences, however, it will be clear to the House that its Delegated Powers and Regulatory Reform Committee has produced a measured and modest report, although there should be no doubt in your Lordships' minds that we shall endeavour to live up to the high standards set by earlier guardians of parliamentary rights.

The Delegated Powers Committee, in producing its report, was well-served by its new legal adviser, Mr Allan Roberts, who examined precedents and consulted widely, not least with the parliamentary draftsman. The result of his labours can be seen in Annexes 1 to 12 to Appendix 2 of the report. Perhaps I may draw the attention of the House also to the helpful letter by first parliamentary counsel to the legal adviser, which is reproduced in Appendix 3.

The core of our report and the recommendations are simple and largely self-explanatory. In our first recommendation we recognise that,

"there are occasions when Henry VIII powers to make incidental, consequential and similar provisions are justified".

Such occasions arise above all from practical considerations such as the length of the Bill or the need to accommodate unforeseeable technical adjustments.

The second recommendation tries to deal with the fact that standard Henry VIII clauses on,

"incidental, consequential and similar provisions" are nevertheless worded in varying ways. First parliamentary counsel has given some reasons for such variations. There is possibly a risk that the "one clause fits all" principle would in some cases lead to a wider empowerment of the executive than is either necessary or desirable. Still, I would note that even in 1932 the Donoughmore committee referred to,

"opportunist considerations, peculiar to the occasion" leading to an "accidental" choice of terminology, as a result of which,

"the nomenclature of delegated legislation is confused".

Your Lordships' Select Committee suggests therefore that the Explanatory Notes sent to the committee with each Bill should include reasons,

"why a particular form of wording has been adopted in each case".

A more systematic approach is desirable also with regard to our third recommendation which concerns the level of parliamentary scrutiny. That is a major issue to which the House may well wish to return on another occasion. The present report merely states that in the case of Henry VIII powers there may be cases in which the negative procedure is sufficient, but there should always be a presumption in favour of the affirmative procedure. That means that whenever it is not adopted reasons must be given in the Explanatory Notes accompanying Bills why this should be so.

I must resist the temptation to return once again to my hobby horse—sunset clauses. It is all the harder to resist the temptation in view of the fact that the Donoughmore committee in 1932, to which I have made many an appreciative reference, recommended that all Henry VIII clauses should,

"be subject to a time limit of one year from the passing of the Act".

Were I to add such a revolutionary proposal to the recommendations in the committee report, I should be transgressing my chairman's remit considerably. Let me stick therefore to the present text and invite the House to take note of the special report by the Select Committee on Delegated Powers and Regulatory Reform. I beg to move.

Moved, That this House takes note of the third report of the Delegated Powers and Regulatory Reform Committee on Henry VIII powers to make incidental, consequential and similar provision (HL Paper 21).—(Lord Dahrendorf.)