Opinion: In December 2023, in a debate on reforms to the Resource Management Act, Chris Bishop, the Minister Responsible for RMA Reform, said, “I don’t like Henry VIII clauses”, although they occur from time to time in legislation. At a time when extraordinary powers are to be granted to ministers under the fast-track legislation, it may be timely to look at other wide-ranging powers that are exercised beyond the parliamentary chamber.
Henry VIII clauses are clauses in a bill that enable ministers to amend or repeal provisions in an act of Parliament using secondary legislation, which is subject to varying degrees of parliamentary scrutiny.
The expression is a reference to King Henry VIII’s supposed preference for legislating directly by proclamation rather than through Parliament. Henry VIII was an autocrat who wanted to give the impression that he was using proper legal processes to put through his many reforms.
The original Henry VIII clause was contained in the Statute of Sewers in 1531, which gave the commissioner of sewers powers to make rules that had legislative power, including the ability to impose taxation rates and penalties for non-compliance. A later Statute of Proclamations (1539) allowed the King to issue proclamations that had the force of an act of Parliament.
After Henry’s death, such clauses fell into disuse and were not commonly used in Britain for several centuries until 1888, when they began to gradually re-emerge. Their use became more frequent, by the UK and Commonwealth Parliaments, after World War II.
Today, Henry VIII clauses allow for changes to be made to existing laws without the need for a full legislative process with multiple stages of parliamentary scrutiny.
They are considered useful for a number of reasons, the main justification is to provide flexibility in the implementation of primary legislation. When an act is put into operation, it may require minor adjustments to work effectively in practice.
By delegating the power to make regulations to the executive arm of government, Henry VIII clauses streamline the law-making process. This can be particularly beneficial where prompt action is required to address emerging issues or changing circumstances.
The clauses enable the executive branch, which often has specialised knowledge and expertise, to make regulations that are tailored to address complex or technical matters.
Some Henry VIII provisions have “sunset clauses”, which means the regulations created are automatically repealed after a certain period of time.
But Henry VIII clauses may also be problematic. They grant significant power to the executive branch, reducing the ability of elected representatives to thoroughly debate and scrutinise proposed changes to the law.
The clauses often delegate broad powers to the executive without clear guidelines or limitations, leading to uncertainty and potential abuse of power.
They transfer legislative power from Parliament to the executive, undermining the sovereignty of Parliament as well as limiting public consultation and input.
Perhaps most significantly, these clauses can erode the principle of the rule of law by allowing the executive to modify legislation without sufficient checks and balances. Thus, fundamentals of the rule of law may be challenged by the operation of the law itself.
It would be preferable for Henry VIII clauses to be consigned to the dustbin of history. But that won’t happen. Society is too complex and needs a form of nimble legislative response that the clauses enable.
However, their use should be exceptional and subject to appropriate parliamentary scrutiny to maintain the balance of power and uphold the rule of law.
David Harvey is a retired district court judge.
