The unnoticed threat to Parliamentary democracy

By Stephen Gummer

Staggering abuses of democracy are more often than not shrouded in the language of bureaucracy and it is for that reason many LabourList readers would be forgiven for not knowing what a Henry VIII clause is. However it is such a clause that caused the House of Lords Select Committee, a committee that is not prone to headline seeking melodrama, to describe clauses of the government’s Public Bodies Bill as legislation that:

“…strikes at the very heart of our constitutional system, being a type of ‘framework’ or ‘enabling’ legislation that drains the lifeblood of legislative amendment and debate across a very broad range of public arrangements.”

In basic language a Henry VIII clause is a section of legislation that empowers a government minister to amend previous primary legislation without recourse to further primary legislation – thus without proper scrutiny.

The Public Bodies Bill is the government’s vehicle for abolishing quangos, many of which were founded by statute, for example the YJB (Youth Justice Board), the bedrock of a separate system of justice focussed around children, was founded by section 41 of the Crime and Disorder Act 1998.

Overturning legislation without further legislation narrows debate and threatens the very nature of parliamentary supremacy. This is particularly true for an issue such as this. It is very easy for people to be generally against quangos. However I imagine the debate for abolition of a specific quango is much more complex. Abolition of the YJB is a debate about children’s rights and penal reform, it is complex, modern and pressing and it should be conducted at the highest level of government. I know of many who would oppose the abolition of the YJB inside and outside of parliament. This is a debate, like many others, that should be had in public, not the confines of Whitehall.

However perhaps even more worrying than the lack of debate on the quangos we know are being cut, is the fact that the government has not limited their Henry VIII power to the quangos that have already been publicly listed for the axe. Instead clause 11 of the bill allows the government minister, without primary legislation, to add further statutory bodies founded by legislation to the list of bodies that can be chopped at a ministerial whim. Contained in this list is the Equality and Human Rights Commission (founded by the Equality Act 2006), the Children’s Commissioner (founded by the Children Act 2004) and the Big Lottery Fund (founded in part by the National Lottery Act 2006). Like a prisoner on death row these bodies can get the chop at any time, with no notice and very little process.

Advocates for the government will argue that the secretary of state will still have to use the affirmative resolution procedure to pass a statutory instrument abolishing any statutory quangos. This means that the statutory instrument is approved by both houses of parliament before it becomes binding. The instrument will be laid before parliament and the government will move a motion in each house that the instrument is approved. This process requires no debate and is in reality a formality. To demonstrate this point, the last time a draft statutory instrument subject to affirmative procedure was rejected by the House of Commons was on November 12th 1969.

Government ministers might also point out that it was the last Labour government that championed the use of Henry VIII clauses, using them in the Legislative and Regulatory Reform Act 2006. While I opposed the use of the process in 2006 as well, the House of Lords Committee pointed out key differences between Labour’s use of the process and the current one. Labour used the super-affirmative procedure for approval of the Henry VIII powers in question, this meant the order had to be laid for a longer period of time and there were greater powers for those with objections to provoke a debate. The peers committee also noted this bill omitted further safeguards used in the past by Labour, such as a requirement of proportionality and a requirement that the order was not of any constitutional significance.

However, technicalities of the legislation are neither here nor there. Drafting a ministerial power so widely so as to exclude parliamentary debate when repealing or modifying a previous statute is an erosion of parliamentary procedure plain and simple. It denies the house its democratic right to debate a key issue and is the hallmark of arrogant government with a wholesale disregard for the powers of the legislature, so much for the new politics.

Henry VIII clauses are also the hallmark of lazy drafting. Instead of specifically enumerating the government narrow powers to achieve its ends, i.e. in this case abolishing a set quango or group of quangos by statute, a Henry VIII clause is a power grab of grandiose proportions. It is not target specific or timing specific and there is no debate to be had at any stage.

I am neither for nor against the abolition of quangos, however I am for the process being undertaken in a manner befitting the constitutional requirements of our country. It is not for the executive to overpower the legislature but rather the other way around. Trust in parliament emanates from its democratic election and while our democracy maybe far from perfect the power of our local representative to scrutinise changes in laws on our behalf on the crucial issues of the day is a core principle of a system of government that has lasted for generations.

It is also not appropriate for the power of life and death over agencies supposedly independent from the politics of government to be in the hands of those very politicians. Surely this allows the possibility for the corrosion of independence under political pressure at a future date?

When parliament votes to affirm the Public Bodies Bill, representatives of both houses should be aware of exactly what powers they are giving the government. They are handing over the power to abolish almost any statutorily funded government body without any further recourse to parliament. Whether you are in favour of cutting unaccountable quangos or not, that really should give you a moment’s pause before voting aye or no.