If you ask any first-year constitutional law student which branch of government makes and amends the laws, they will (probably) dutifully answer – the legislature. Such is the received wisdom, but I would challenge them (and others) to think again because the numbers paint a very different picture.
The reality in the UK today is that the volume of law created by the executive far outstrips that produced by the legislature and has done for some time. While this proliferation of secondary legislation itself is concerning, a particular subset of this legislation, so-called Henry VIII powers, warrant extra scrutiny. Henry VIII clauses are clauses in a bill that enable ministers to amend or repeal provisions in an Act of Parliament using secondary legislation. Elizabeth Gardiner, formerly First Parliamentary Counsel, observed there are “a range of situations where it might be entirely sensible to take a Henry VIII power” in legislation. While they may be expedient, the powers are nonetheless constitutionally anomalous. They invert the traditional hierarchy of law within the state, allowing a subordinate norm to override a superior one. They also marginalise the traditional law making and scrutinising power of the legislature. Henry VIII clauses should only be used in exceptional circumstances. Yet in reality, like secondary legislation more generally, the House of Lords Constitution Committee notes that Henry VIII powers are “an increasingly common feature of legislation”. Richard Gordon QC stated they have “have grown exponentially in recent times…several hundred such clauses have been passed in a single Parliamentary session”
Defenders of Henry VIII powers might claim that they prioritise practical efficiency over abstract concerns about scrutiny and accountability. Yet a recent case drew the misuse of these delegated powers into sharp focus. In R. (National Council for Civil Liberties) v Secretary of State for the Home Department [2024] EWHC 1181 (Admin) the National Council of Civil Liberties sought judicial review of a piece of secondary legislation on public order.
The previous government passed a range of new legislation governing public order, notably for our purposes, the Police Crime Sentencing and Courts Act 2022, which allowed the police to intervene in a protest to prevent “serious disruption to the life of the community”. The legislation also allowed the Home Secretary to change the definition of “serious disruption” by means of secondary legislation.
The government later passed more legislation creating new public order offences – Public Order Act 2023. In these offences the government tried to define serious disruption to mean “more than minor”, but the House of Lords rejected this definition as being too broad and allowing the police to intervene too easily to stop protests. As a result, the definition was excluded from the enacted legislation.
However, Chris Philp, a junior minister in the Home Office, used the power in the 2022 Act to introduce secondary legislation, the pithily titled Public Order Act 1986 (Serious Disruption to the Life of the Community) Regulations 2023, which defined serious disruption for the purposes of the Act as “more than minor”.
The House of Lords committee responsible for scrutinising secondary legislation criticised the government’s actions, noting it was “the first time a Government has sought to make changes to the law by making those changes through secondary legislation even though those same changes had been rejected by Parliament when introduced a short while before in primary legislation”. The government was essentially trying to sneak something through the backdoor after the Lords had slammed-shut the front.
The parliament nonetheless voted for the regulations to come into force in June 2023. They passed through the House of Commons without issue and were passed, through gritted teeth, by the House of Lords. It led to a bizarre and unedifying situation where the House of Lords called on the government to withdraw the regulations as the House of Lords itself was accepting them.
After the legislature failed to stop the regulations entering into force, the National Council for Civil Liberties turned to the courts to challenge them. The High Court ruled that the regulations were ultra vires – meaning that the Home Secretary did not have the legal authority to create them.
The court determined that the minister couldn’t make a regulation like this, which had no linguistic connection to the phrase “serious disruption”. As a matter of ordinary and natural language “more than minor” was not within the scope of the word “serious”. The Act was supposed to set the threshold for police intervention at a high level but, by defining serious disruption in this way, the regulations would have had the opposite effect, allowing the police to intervene much more easily. The court observed that Henry VIII powers like this should only be used to clarify or give examples of the power but not change the power itself.
While the regulations were quashed by the High Court, an appeal against this judgment is currently pending before the Court of Appeal. As such, the exact limits of the executive’s power to defy parliamentary will in this way remain to be determined. What is clear though is that the risk of using Henry VIII powers like this to change the law against the will of parliament and to circumvent legislative scrutiny to introduce rights-restricting measures is not an abstract concern – it is genuine, serious and very real. Thankfully, the judiciary were able to intervene to correct the issue on this occasion, but it could easily happen again, and the government may still be successful in their appeal. So what can be done to correct this problem?
Firstly, these powers should return to being an exceptional measure. Where they are proposed, the government should be required to give a full and clear explanation and justification for their use and if one is not forthcoming, they should be rejected by the parliament. Secondly, Henry VIII powers are frequently used in lieu of concrete policy decisions, they are a blank cheque to the executive from the legislature. When such powers are requested, the legislature should push back on the executive to provide more detail e.g. in the form of draft secondary legislation accompanying the Bill, before approving the creation of the powers. Parliament is often unable to scrutinise the secondary legislation that follows on the heels of Bills presented to them and is therefore prevented from doing their job of holding the government to account. Finally, perhaps most importantly, the House of Lords needs to show some backbone. What the government did in this instance was aptly described as “an audacious and unprecedented defiance of the will of Parliament”. While it is, rightly, exceedingly rare for the House of Lords to withhold agreement to secondary legislation, in the face of such a brazen and egregious act, the House of Lords absolutely should have.
It has been suggested that the House of Lords has been cowed by the constant threats from governments to constrain their powers or even abolish the second chamber altogether. Yet arresting secondary legislation like this is precisely what they should be doing to justify their continued existence. Oversight of secondary legislation is already drastically reduced compared to primary legislation, but there is still scope for some oversight, most notably where the procedure requires that the secondary legislation be made affirmative. The House of Lords needs to use what little power it has in these circumstances effectively by opposing regulations like those in the R. (National Council for Civil Liberties) v Secretary of State for the Home Department case, rather than capitulating to an already over-powered executive.
In conclusion, I recall the prescient words of the late Lord Igor Judge, former Lord Chief Justice of England and Wales, at the Lord Mayor’s Annual Dinner in July 2010:
‘You can be sure that when these Henry VIII clauses are introduced they will always be said to be necessary. … Half a moment’s thought will demonstrate that proliferation of clauses like these will have the inevitable consequence of yet further damaging the sovereignty of Parliament, and increasing yet further the authority of the executive over the legislature. … Henry VIII clauses should be confined to the dustbin of history’
I’d have held the bin bags for you Lord Judge.
Stuart Wallace.
*The author would like to thank Dr Paolo Sandro for his comments on a draft version of this post.
Stuart Wallace is an Associate Professor at the University of Leeds where he teaches constitutional law and international human rights law. He is a contributing writer for the Constitution Society.
The Constitution Society is committed to the promotion of informed debate and is politically impartial. Any views expressed in this article are the personal views of the author and not those of The Constitution Society.