Last year, the Government published a Draft Deregulation Bill to get rid of some legislation that was no longer necessary. The Bill was sent to a Joint Committee for pre-legislative scrutiny. Although committees often have little time to complete their task, such scrutiny is a valuable exercise. It often leads to changes when the Government formally bring a Bill forward.
Although many provisions of the Draft Deregulation Bill were not contentious, comprising particular named measures that were no longer required, there was a clause that constituted a massive ‘Henry VIII’ provision. ‘Henry VIII clauses’ provide a minister with a power to use secondary legislation to repeal or amend primary legislation. This particular clause empowered a minister through secondary legislation to repeal an Act or provisions of an Act that in the minister’s judgement was no longer of any practical use. The orders made by the minister required parliamentary approval, but the particular process stipulated was fairly inadequate, little more than an enhanced negative procedure.
I submitted a written memorandum to the Joint Committee and was then invited to give oral evidence. I appeared in the session just before the relevant ministers. I explained why the provision was constitutionally objectionable. Ken Clarke, who had not seen my evidence, argued that the provision was essentially benign! You can see my written evidence (at page 988) and my oral evidence (at page 994) in Volume 2 of the evidence volumes. The committee in its report took my view and, in parliamentary terms, pulled no punches in its comments on the offending clause.
The Government last week introduced its Deregulation Bill in the House of Commons. The report of the Joint Committee appears to have had an effect. The offending clause has been dropped.