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Henry VIII Clauses

Volume 502: debated on Tuesday 8 December 2009

To ask the Secretary of State for Justice what Henry VIII powers were enacted in legislation passed in the 2008-09 Parliamentary Session. (303908)

The Government do not routinely collect or hold information about the number of Henry VIII provisions. However in response to an earlier question from the hon. Member for Eddisbury (Mr. O'Brien) on the number of Henry VIII powers that had been enacted up until that point in the 2008-09 Session, a detailed exercise was undertaken to collate the information.

The Minister of State, my right hon. Friend the Member for North Swindon (Mr. Wills) wrote to the hon. Member for Eddisbury on 10 November 2009 with the following information:

As you know, a Henry VIII clause is a power in a Bill which enables primary legislation to be amended or repealed by secondary legislation. Such provisions are included in legislation for a variety of reasons.

Due to the diverse nature of this type of power, we cannot be sure that we have captured every instance. However we estimate that there are around 70 such powers contained within legislation enacted so far this Session. At least 10 of these powers are not new, but have been re-enacted this Session and at least 15 of the powers are provisions allowing for consequential amendments. The majority of the remaining powers are narrow in scope, applying in specific circumstances, including 18 powers in the Finance Act 2009.

15 of the 70 powers are contained in the Banking Act 2009, which was passed in response to the recent period of sustained disruption in global financial markets. The more substantive of these 15 powers are necessary to ensure that the special resolution regime can be used effectively to resolve a failing bank or building society, in order to protect depositors and maintain financial stability.

Parliament has long—and rightly—been hostile to the principle of Henry VIII powers, and so have I and my colleagues. They are only used when there is substantial call for them; no practical alternative of dealing with the issue in the original legislation; and such powers are rarely wide-ranging. The exercise of any Henry VIII power will be subject to subsequent parliamentary approval, either by way of the negative resolution procedure (for example where the change is technical, consequential or minor) or, as in most cases, the affirmative resolution procedure.

All of the powers themselves were subject to parliamentary scrutiny prior to their enactment and were accepted as necessary by Parliament having considered the views of the Delegated Powers and Regulatory Reform Committee.

In order to answer this question fully, a similar exercise is being undertaken to take account of the Acts that have received Royal Assent since 10 November and I will write to the hon. and learned Member as soon as this exercise is complete. A copy will be placed in the House Library.