By Lucy Crabtree
Henry VIII clauses are provisions which, in a modern context, allow MPs to make alterations to primary legislation via secondary legislation without having to pass that alteration through Parliament. Greenberg argues that they are necessary to adapt older legislation to economic changes and prevent them from becoming obsolete.
Technically, Parliament still can review these changes later however, this ability is rarely exercised. The argument is that Henry VIII clauses create a real risk of legislative power being abused, as the law which is passed or repealed under these provisions is not scrutinised as thoroughly Acts passed by Parliament. N.W. Barber describes them as ‘a fetter on the power of future Parliaments’.
Where Henry VIII clauses become even more controversial is in the case of the European Union (Withdrawal) Act 2018 which handles the EU-derived legislation in the wake of Brexit. In s8(1) of the Withdrawal Act, Ministers are permitted to “prevent, remedy or mitigate” what they consider to be a “deficiency” to EU-derived domestic legislation when it is adopted as UK law. ‘Deficiency’ is a dangerously broad term that you will find scattered throughout the Withdrawal Act without any sort of specific definition. Similarly, to how it is not appropriate for judges to create law, it is not appropriate for Ministers to wield such indiscriminate power to decide what a ‘deficiency’ in the law is. Henry VIII provisions are to be as narrowly confined as possible, but the Withdrawal Act fails to do this through its vague language.
Another issue of Ministers being able to correct ‘deficiencies’ in the law without going through Parliament is that Brexit is constitutionally unprecedented so the public could not possibly have voted for Ministers with this massive increase in legislative responsibility in mind. Therefore, though I agree with the notion that Acts need to adapt and these changes should not always have to go through Parliament as that process is very time-consuming, they should be very restricted in their use.
The courts also follow this mindset as judges will often interpret Henry VIII clauses narrowly, following the specific language of the enabling act or clause closely. While it is more practical to delegate the legislative process of adopting EU law to Ministers, the changes made to these key pieces of legislation could have menacing effects on the unsuspecting population.