Henry VIII powers: A follow-up post

I wrote earlier this week about Lord Judge’s recent lecture on Henry VIII powers — that is, powers conferred on the executive to amend or repeal provisions in Acts of Parliament — and parliamentary sovereignty. This post briefly raises two points by way of follow-up.

How many Henry VIII powers? No idea, says the Government

Since publishing that post, I have become aware of an interesting exchange involving Shadow Human Rights Minister Andy Slaughter MP, the House of Commons Procedure Committee and the Cabinet Office. (The correspondence referred to below has been shared with me by Andy Slaughter, to whom the correspondence was copied.)

On 11 December 2015, Andy Slaughter tabled a written parliamentary question in the following terms:

To ask the Minister for the Cabinet Office, what Henry VIII powers were (a) enacted in legislation passed in the 2010 to 2015 Parliament and (b) since May 2015.

On 16 December, Oliver Letwin, the Minister for Government Policy in the Cabinet Office and Chancellor of the Duchy of Lancaster, replied to Andy Slaughter in the following terms:

Each time the Government proposes a new delegated power in a Bill, it submits a memorandum to the Delegated Powers and Regulatory Reform Committee setting out the case for the power. These memoranda are published on Parliament’s website.

Dissatisfied with this response, Andy Slaughter complained to the House of Commons Procedure Committee, the chair of which wrote to Cabinet Office Minister Matthew Hancock pointing out that Letwin’s reply to Slaughter

gives no information on the delegated powers actually enacted in legislation; … provides no information on the delegated powers which the Government considers to be Henry VIII powers; and … does not provide the information in a form which is readily available.

Matthew Hancock replied to the Chair of the Procedure Committee as follows:

I am very sorry that you were not satisfied with the answer, which explained that the information asked for is contained within published sources. While the information Mr. Slaughter seeks is a matter of public record, the Government does not keep a central record of the nature of each delegated power taken in each Act of Parliament. In the last Parliament, 153 Bills attained Royal Assent and seven Bills have been passed since the General Election.

Given the large number of Bills passed in the last Parliament and that the information is in the public domain (in the Acts, the delegated powers memos produced by the Government and in the reports of the Delegated Powers and Regulatory Reform Committee), compiling the information would incur a disproportionate cost. However, we might be able assist Mr. Slaughter if a revised, more clearly defined, question was tabled.

Readers can draw their own conclusions about Oliver Letwin’s written answer and Matthew Hancock’s subsequent response to the Procedure Committee. My own conclusions, for what they are worth, are that the reference to “disproportionate cost” implicitly acknowledges the scale upon which Henry VIII powers are now conferred, while the general tenor of the Ministers’ responses attests to the fact that Henry VIII powers are now regarded in Government as entirely mundane rather than in any way exceptional. That such substantial transfers of legislative authority to the Executive is now so commonplace is, of course, precisely one of the concerns that Lord Judge highlighted in his lecture.

Views from Australia

Second, and more briefly, I draw attention to two excellent papers by Stephen Argument and Professor Cheryl Saunders offering views from Australia in relation to executive law-making. As well as addressing the position in Australia, Stephen Argument offers a thoughtful and incisive analysis of the proposals concerning executive law-making in the UK put forward by the Strathclyde Review, and about which I wrote in an earlier post. Both papers — which, among other things, illustrate that the sort of concerns that arise in relation to delegated legislation in the UK are far from unique — form part of the Australian Senate’s Occasional Lecture Series, and can be accessed via the Parliament of Australia’s website.