H is for the Henry VIII Clause, a nickname given to a provision in an Act of Parliament that delegates to a minister the power to modify the Act itself, or other Acts of Parliament. The delegation by Parliament of various powers to ministers – ‘delegated legislation’ or ‘secondary legislation’ – became common during the late nineteenth and early twentieth century; indeed the increasing complexity of government business meant that it was unavoidable. For many, however, it was associated with the growth in a powerful and unaccountable bureaucracy, and the Henry VIII clause, apparently conferring a sovereign legislative authority on the government itself, was both symbolic of that growth and a dangerous step towards eroding the ability of Parliament to rein it in.
The tag seems first to have been referred to in a parliamentary debate by Lloyd George in the highly controversial National Insurance Bill in 1911. The nickname associates the power with a king whom the 1931 report of the ‘Donoughmore’ Committee on Ministers’ Powers – set up to examine the controversy – talked of as the ‘impersonation of executive autocracy’, and more particularly with ‘the famous Statute of Proclamations, 1539, which gave the King power to legislate by proclamation until it was repealed on Henry’s death in 1547’. The comparison, the report soberly added, is ‘certainly far-fetched’.
It did, however, build on a long tradition of English historiography concerning the 1539 statute, in which it was seen as an attempt to bring in an English ‘lex regia’, entrusting to the king all power, just as the ancient Romans were said to have done when their early republic was superseded by a monarchy. Even James I was quoted as referring to Henry VIII’s ‘tyrannical’ ambition ‘to make his proclamation a law’. In the words of one eighteenth century legal commentator ‘Such an unnatural scheme was indeed really affected, for a short time, in the bloody and tyrannical reign of Henry VIII, when the parliament awed into subjection by the frowns of a monster, passed a kind of “lex regia” in those unpopular and disgraceful statutes, wherein the king’s proclamations were indulged with the full force of regular laws’. (Thomas Bever, A Discourse on the Study of Jurisprudence and the Civil Law, Oxford, 1766, p. 88). The great eighteenth century jurist William Blackstone suggested that the ‘royal prerogative was then strained to a very tyrannical and oppressive height; and, what was the worst circumstance, its encroachments were established by law, under the sanction of those pusillanimous Parliaments’ (Commentaries, iv. 424). A.V. Dicey wrote that the statute marked ‘the highest point of legal authority ever reached by the Crown’. (Law of the Constitution, p. 49).
Modern scholarship has become more sceptical about this lurid account of the meaning and purpose behind the statute, but has struggled to interpret the limited and complex evidence relating to it. The first more scholarly approach came in a 1917 article by E.R. Adair, which argued that it had no significant impact on the nature or force of royal proclamations, and certainly did not give them the force of law. It glossed the statute as ‘a rather bungling attempt on the part of the Commons to mend the executive machinery’. The distinguished Tudor historian G.R. Elton took further the debunking of the statute as an instrument of tyranny in a piece published in 1960. He argued that the most significant element of the statute was the fact that it took an unquestioned royal prerogative – the power to issue proclamations concerning religious doctrine, the preservation of unity and concord in the realm and the ‘advancement of the commonwealth and good quiet of the people’ – and backed it by the authority of parliamentary statute. The statute explicitly said that proclamations could not be used to modify property rights or penalties extending to life, existing statutes (though this did leave open the possibility of affecting new ones), the common law, or the customs of the realm. Its main purpose, he argued, was to create a complex machinery to enforce proclamations. Nevertheless, Elton accepted that the passage of the statute was controversial, with the very limited record suggesting intense debates in both the Commons and the Lords, and that the provisions restricting its effect were the result of a series of amendments made in both Houses. It suggested that the original ambitions of the government may well have been for a more extensive power than that eventually achieved, although he played down the significance of that fact, arguing that the history of Henry VIII’s government ‘makes it difficult to suppose that anyone wished to govern by ordinance or tax without consent’.
Adair and Elton’s reinterpretation of the statute contributed to a new scepticism about the ‘despotism’ of the Tudor regime. But as M.L. Bush subsequently pointed out in a forensic study of proclamations issued under the statute, although the statute did not provide the government with an across-the-board despotic power, it did allow a considerable power to enforce proclamations against heresy (even if, in the end, these were barely used); moreover, the powers it conferred could be used in very specific circumstances to legitimise temporary changes to the provisions of a number of statutes, particularly to drastically increase penalties in cases where the government clearly felt dramatic action was necessary. It was only certain proclamations that the statute backed with statutory authority, not all, and it did extend the range of what royal proclamations could do without offending the law. The complexity of the statute’s provisions were part of the reason why it was little used in practice, and were a result of its controversial passage through Parliament. Bush argued that the government initiated the legislation because it did want to make some proclamations enforceable in the same way as statutes were, in particular proclamations relating to religious policy, and those concerned with economic regulation – though more as a rather clumsy response to an immediate political problem than as a deep-laid plot to undermine parliamentary power.
A postscript to the statute of proclamations controversy is the so-called ‘second act of union of Wales and England’ of 1543, 34 and 35 Henry VIII c. 26, which conferred on the king powers to amend or repeal the act either in whole or in part and to make laws and ordinances for Wales with permanent effect without recourse to Parliament, a provision which was sometimes regarded as even more extreme than the earlier statute. The provisions of the act of union were, however, closely related to the former status of Wales as a separate dominion, governed by separate laws, in particular the 1284 Statute of Wales, which the act in many ways echoed. As with the statute of proclamations, the powers in the act of union were rarely used, and while the former was repealed after Henry VIII’s death, the latter was held to have lapsed at the same time, though it was formally repealed in the reign of James I.
In fact the actual details of Henry VIII’s legislation were pretty irrelevant to the twentieth and twenty-first debates about delegated legislation and ministerial powers: the polemical use of the name of one of England’s most notorious monarch harked back to the idea of the ‘Lex Regia’ and not to any real knowledge about his legislative policies. The Donoughmore committee dismissed the comparison with the Statute of Proclamations: ‘the purpose of Henry VIII was to enlarge his powers to make proclamations having the force of law. The sole purpose of Parliament on the nine occasions when it passed the modern enactment [known as a Henry VIII clause] was to enable minor adjustments of its own handiwork to be made for the purpose of fitting its principles into the fabric of existing legislation, general or local, and of meeting cases of hardship to local authorities’.
The Donoughmore Committee’s list of instances of Henry VIII clause went back to 1888, a provision in the Local Government Act which enabled the Local Government Board to make amendments to the Act in order to settle problems experienced in first elections to the new county councils. It was its use in the National Insurance Bill (only the fourth instance listed by the Committee), in order to deal with unanticipated problems in bringing the new structure into effect, that seems to have brought the Henry VIII clause to more general attention. The Donoughmore Committee dismissed the claim, made in the debates on that bill by Reginald McKenna, then Home Secretary, that Henry VIII clauses had been used ‘again and again’ previously [10 Nov. 1911, c. 2011, clause 57]. This was due to an overly restrictive idea of the Henry VIII clause, for others had found many other, albeit less precise, examples of powers conferred on ministers to modify legislation which the committee ignored. The committee regarded the 1911 case as highly political: the bill needed to be passed that year – presumably before all of the details could be sorted out – otherwise it might not have been passed at all. Despite the spat over the 1911 Bill – one of the most dramatic extensions of the power of the state – the occasional use of the clause in subsequent Acts, and an undeniable growth in delegated legislation during the First World War and after, concern about it was muted until the late 1920s. By then a more general complaint about the growth in bureaucracy and the extension of the control and influence of Whitehall into all aspects of everyday life – or ‘officialism’ – was becoming a strong polemical theme among both senior lawyers and mainly conservative politicians.
The debate took fire with the essay written by the lord chief justice, Gordon Hewart (Lord Hewart) in 1929, The New Despotism. Hewart, widely considered to be one of the least distinguished members of the senior judiciary of modern times, had been a liberal MP and minister, closely associated with Lloyd George, solicitor general and attorney general during the War. Hewart’s powerful, and much-discussed polemic claimed that ‘for some years past’ there had been ‘a persistent influence at work which… has the effect of placing a large and increasing field of departmental authority and activity beyond the reach of the ordinary law’ (p. 11). Hewart complained of ‘bureaucratic encroachment’ (he was well-known for his suspicion of the civil service) and a ‘persistent and well-contrived system, intended to produce, and in practice producing, a despotic power which at one and the same time places Government departments above the Sovereignty of Parliament and beyond the jurisdiction of the courts’ (p. 14) – the ‘New Despotism’. The Donoughmore Committee was the government’s response to Hewart – apparently organised by Hewart’s bête noire, the permanent secretary of the Lord Chancellor’s department, Sir Claud Schuster, whom Hewart referred to as ‘Shyster’ – and its careful report gave deep and serious consideration to the complaints raised by the Lord Chief Justice while offering a series of specific responses which would allow the existing system to continue. It acknowledged the ‘extreme convenience, from the point of view of those charged with the duty of bringing into effective operation a far reaching measure of reform, of a dispensing power such as that contained in the so-called “Henry VIII clause”.’ But it concluded that ‘it cannot but be regarded as inconsistent with the principles of Parliamentary government that the subordinate law-making authority should be given by the superior law-making authority power to amend a statute which has been passed by the superior authority…’. As far as the run of delegated legislation was concerned, they proposed a structure of parliamentary scrutiny which would only be properly implemented after the Second World War.
In the debates following the report, some voices emerged that were prepared to defend delegated legislation as essential tools of a progressive-minded state, most notably the legal academic, John Willis, whose The Parliamentary Powers of English Government Departments was published in the USA in 1933. Eventually even Hewart would come to accept the necessity of delegation in order to build a welfare state. By the end of the twentieth century delegated legislation had become a normal and accepted feature of the business of Parliament, with much of the machinery eventually set up in response to the Donoughmore report either routine or ignored. Surprisingly, few seem to have complained at the time that the European Communities Act 1972 contained a Henry VIII clause, giving ministers wide powers to amend UK law to make it consistent with the requirements of EU law – Hansard records very few uses of the word in either House during the 1970s. But the concern about Henry VIII clauses would come back with a vengeance in the 1980s and 1990s, largely under conservative administrations this time, and often connected with attempts to remove or tinker with aspects of the regulated state, rather than to build it. Again it was often lawyers who fought it most vigorously: the conservative politician Geoffrey Rippon made it a particular issue in 1988 and 1989, criticising its use in The Children Act, the Local Government and Housing Act 1989, and the Local Government Finance Act 1988. It was the Deregulation and Contracting Out Act of 1994 that brought out the issue most strongly, followed by the Legislative and Regulatory Reform Act 2006 (under the Labour Blair government), which in its pre-enacted form, was widely seen as giving outrageously wide powers to the executive. Both Acts eventually involved the concession of safeguards including new machinery for parliamentary scrutiny of orders made under them. It seems likely that the introduction of the European Union (Withdrawal) bill will continue and extend the debate.
E.R. Adair, ‘The Statute of Proclamations’, English Historical Review no. 125 (January 1917).
G.R. Elton, ‘Henry VIII’s Act of Proclamations’, English Historical Review no. 295 (April 1960).
M.L. Bush, ‘The Act of Proclamations: A Reinterpretation’, The American Journal of Legal History 27 (1983).
P.R. Roberts, ‘The Henry VIII Clause: Delegated Legislation and the Tudor Principality of Wales’, in Legal Record and Historical Reality, ed. T.G. Watkin (1989).
Michael Taggart, ‘From “Parliamentary Powers” to Privatization: The Chequered History of Delegated Legislation in the Twentieth Century’, The University of Toronto Law Journal 55 (2005).
Geoffrey Rippon, ‘Henry VIII Clauses’, Statute Law Review 10 (1989)