Peers criticise growing use of ‘Henry VIII’ powers by successive governments

Peers have hit out at the Government’s escalating use of so-called “Henry VIII powers”, describing the practice as “constitutionally objectional”.

In a report the House of Lords Constitution Committee criticised the seeking of broad delegated powers that permit the determination as well as the implementation of policy, and in particular the use of such powers to create criminal offences and establish public bodies.

The report concludes that:

• Delegated powers are necessary: “they allow Parliament to focus on the important policy frameworks and decisions and leave the detail of implementation to secondary legislation”.
• Broad or vague powers, sought by the Government for convenience or flexibility, are unacceptable: “The Government must provide a full and compelling justification for all delegated powers and it is for Parliament to decide whether that justification is acceptable.”
• Henry VIII powers, which permit changes to primary legislation to be made through secondary legislation, "are a departure from constitutional principle”.
• Secondary legislation has been used inappropriately to give effect to significant policy decisions.
• Scrutiny of statutory instruments is an essential part of Parliament’s work, and the Government must take more account of parliamentarians’ concerns when deficiencies are identified. “If it does not do so, in exceptional circumstances Parliament should use its powers to block such instruments and require the Government to think again.”

Chair of the Committee Baroness Taylor of Bolton said: “We are very concerned about the increasing use of broad delegated powers by successive Governments. Delegated powers should not be sought purely for the convenience of the Government, especially where it is hard for Parliament to assess how they might be used.

“Parliament has rarely rejected secondary legislation, and this remains the right approach. However, such restraint may not be sustained if the Government persists in the inappropriate use of delegated powers. We remind the Government that defeat on a statutory instrument need not be considered momentous or fatal. The Government can always lay a revised instrument the following day to respond to Parliament’s scrutiny and correct deficiencies.”