by Sunder Katwala

The Coalition government has made much of its commitment to strengthen Parliament.

So one would think it would want as little as possible to do any massive extension of “Henry VIII” clauses – introducing powers to enables primary legislation to be amended or repealed by ministers, with or without further Parliamentary discussion. (Keen historians may know that this relates to Henry VIII’s Statute of Proclamations of 1539).

Think again.

The Public Bodies Bill – which abolishes as many quangos as possible – gives ministers astonishingly leeway to amend all legislation.

The House of Lords Delegated Powers and Regulatory Reform Committee could not be clearer in its latest report that this goes much too far, and would be an important weakening of Parliament.

This Committee was established by the House as a result of “considerable disquiet over the problem of wide and sometimes ill-defined order-making powers which give Ministers unlimited discretion”.[1] The powers in this Bill as it is currently drafted fall into that category. The Committee is instructed by the House in its terms of reference “to report whether the provisions of any bill inappropriately delegate legislative power”. The Committee considers that the powers contained in clauses 1 to 5 and 11 as they are currently drafted are not appropriate delegations of legislative power. They would grant to Ministers unacceptable discretion to rewrite the statute book, with inadequate parliamentary scrutiny of, and control over, the process … The Bill confers powers on Ministers to make very significant changes. All orders under the Bill may amend or repeal any Act of Parliament and are thus Henry VIII powers. Orders under the Bill may even amend or repeal Acts of Parliament which have not yet been passed by Parliament (clause 27(2)). The exercise of those powers is in each case made subject to the affirmative procedure. But that procedure cannot in any circumstances be regarded as a substitute for a bill, for two reasons in particular. First, as is normal with secondary legislation, the orders are considered only once and are unamendable, however much material the order contains. Second, in practice, it is very rare for either House to vote down subordinate legislation, whatever its concerns about them.

Indeed, no such instrument has been voted down by the Commons since 1969 – over forty years – as Stephen Gummer reported on LabourList.