My Lords, to add to what my friend, the noble Lord, Lord Hunt of Kings Heath, has said, I will concentrate mainly on Henry VIII powers, which apply to other clauses in the Bill, not just Clause 13.
Henry VIII clauses allow Ministers to amend or repeal provisions in an Act of Parliament using secondary legislation. I tried to look up what the laws might say about Henry VIII powers being adopted. For those not familiar with them, Halsbury’s Laws of England provides the following description:
“As a general rule, primary legislation amends other primary legislation but leaves subordinate legislation to amend itself; subordinate legislation frequently amends other subordinate legislation, but mostly does not amend primary legislation.
Powers conferred by statute cannot be assigned without statutory authority, and whether they can be delegated depends on the construction of the statute. It will be assumed by the courts that Parliament does not delegate legislative or other power unless it does so by express provision or unavoidable implication; and provisions conferring power will be construed strictly against the person on whom the power is conferred.
An Act of Parliament may contain a power to make subordinate legislation which in turn can amend the enabling Act or another piece of primary legislation. The clause of the Bill containing such a provision allowing primary legislation to be amended by secondary legislation is commonly termed a ‘Henry VIII clause’ and the power itself is likewise called a ‘Henry VIII power’”—
terms familiar to us all. It goes on:
“The normal principles of statutory construction apply to Henry VIII powers but the courts will apply a restrictive interpretation if there is any doubt as to the scope of the power.”
The noble and learned Lord, Lord Thomas, who is speaking on this group, may wish to comment on that.
3.45 pm
The House of Lords Delegated Powers and Regulatory Reform Committee has said:
“Henry VIII powers should not be inserted in Bills as a matter of routine, and any that are included should be fully explained and justified.”
For many of these clauses, including Clause 13, the scope and intent are not fully explained, although perhaps the Minister, as the noble Lord, Lord Hunt, has said, may wish to expand on that.
The House of Lords Constitution Committee report The Legislative Process: The Delegation of Powers had this to say:
“‘Henry VIII clauses’ are clauses in a bill that enable ministers to amend or repeal provisions in an Act of Parliament using secondary legislation. As secondary legislation is subject to a lesser degree of scrutiny than primary legislation, Henry VIII clauses are a significant form of delegated power.”
It concluded:
“This is an increasingly common feature of legislation which, as we have repeatedly stated, causes considerable concern. The Government’s desire to future-proof legislation, both in light of Brexit and the rapidly changing nature of digital technologies, must be balanced against the need for Parliament to scrutinise and, where necessary, constrain executive power.
Henry VIII clauses are ‘a departure from constitutional principle. Departures from constitutional principle should be contemplated only where a full and clear explanation and justification is provided.’ Such justification should set out the specific purpose that the Henry VIII power is designed to serve and how the power will be used. Widely drawn delegations of legislative authority cannot be justified solely by the need for speed and flexibility.”
Clause 13 is a key example of taking wide powers to amend even primary legislation. Hence I believe that Clause 13 should not stand part of the Bill.