Henry VIII Clauses

Henry VIII clauses in British legislation are generally regarded as "a bad thing". But what are they? and why are they offensive?

Normally if Parliament passes a law, it is expected that Parliament itself should be the only body able to amend or repeal that legislation. Henry VIII clauses in a bill (and if passed, the Act) give the power to Ministers to repeal or amend the provisions using secondary legislation. Parliamentary scrutiny is limited over secondary legislation. Instead of weeks or even month of consideration by committee and in the various stages of the legislative process - Parliament gets, at most, the opportunity to vote for or against the measure - no amendment is possible.

The term "Henry VIII clause" is a reference to the Statute of Proclamations 1539, which has traditionally been seen as 'the highwater mark of Tudor despotism' [Maitland]. Or as Robin Cook once said, they "are termed Henry VIII clauses in disrespectful commemoration of that monarch's tendency to absolutism.” In fact that statute might not be as far reaching as British mythology has made out. G R Elton wrote a fascinating article on the Statute of Proclamations in The English Historical Review, Vol 75, No 295 (Apr., 1960) pp. 208-222, which I had the pleasure of reading in preparation for this entry.

A 1932 Report (The Donoughmore Committee) found that between 1888 and 1929 nine Acts of Parliament contained such clauses. It recognised that their occasional use might be justified but concluded that their 'use must be demonstrably essential, and justified on each occasion by the Minister "to the hilt"'. There were none until the war, but they then returned in growing numbers. Concerns were more frequently expressed in the 1970s and 1980s. Controversy reached a height during the passage of the Deregulation and Contracting Out Act 1994 which contained a number of such clauses. They continue to appear in bills, but provoke - rightly - much concern.