Bob Edlin: Here’s your chance to let Parliament know what you think of its curbs on Henry VIII (and other) powers

We were about to pack up the office PC and spend the rest of the weekend relaxing when we were alerted to an exercise in Parliamentary scrutiny which .. Well, the word “arcane” sprang to mind.  But perhaps this reflects badly on our need to brush up on some aspects of the legislative process.

The news is that the Regulations Review Committee has called for submissions on an inquiry into parliamentary scrutiny of confirmable instruments.

Do we hear whoops of approval among our readers? Or are you asking: Confirmable instruments?   What are they?

Those of you steeped in the art of parliamentary law-making won’t need to read the report produced by the Regulations Review Committee which contains the answer.

The report explains that Parliament – the supreme law maker – has full power to make laws.

But parliamentary time is scarce and legislating is a complex activity.  Parliament therefore often delegates responsibility to various entities within the Executive to make the more detailed or technical aspects of legislation .

Instruments made under delegated powers are called secondary legislation and range from regulations made by the Governor-General by Order in Council to orders or notices made by other decision-makers, such as the chief executive of a government agency.

But while Parliament has delegated its law-making role in these cases, it retains responsibility for scrutinising how the Executive is doing its job to ensure its intention is being met.

One mechanism of scrutiny is confirmation.  This means  some secondary legislation is revoked at a particular date unless it has been confirmed by an Act of Parliament.

Confirmation is not the same as validation. Validation corrects a defect in secondary legislation or in the way it was made that would otherwise make the legislation invalid.

Under confirmation, validity is not at issue.

Secondary legislation is subject to confirmation if the empowering provision under which it is made is listed in Schedule 2 of the Legislation Act 2012.

Section 47C of the Act provides for a confirmable instrument to be revoked at the applicable deadline unless it has been confirmed by an Act of Parliament (or has otherwise ceased to have effect).

Fifty-seven such empowering provisions are contained in 37 Acts of Parliament.

The select committee is seeking submissions which address several  questions or any other matter raised in its report.

Among the questions: 

• Does the current process of parliamentary scrutiny of confirmable instruments provide effective scrutiny?
• How should the Regulations Review Committee improve the process by which it scrutinises confirmable instruments?
• Would there be advantages in the Regulations Review Committee beginning its scrutiny of certain confirmable instruments after they are made but before the Subordinate Legislation Confirmation Bill is referred to it?

The Parliamentary Counsel Office analysed all the empowering provisions for
confirmable instruments in 2018 and found they generally fall into one of four
categories, in the following proportions:

Henry VIII power (yep, that’s what the report says) 51%

Levies or taxes 38%

Broad powers 7%

Emergency powers 4%.

“Henry VIII powers” – you were bursting to know – allow the government to change an act of parliament, or even to repeal it, after it has been passed and without the need to go through parliament a second time. The name is taken from the 1539 Statute of Proclamations, which allowed Henry VIII to rule by royal proclamation, or by decree

The Regulations Review Committee agrees the instruments falling within the four categories listed above require greater parliamentary scrutiny.

But it asks (among other things) if the appropriate confirmation process should depend on the level of discretion involved in the decision to make the instrument.

You don’t have to give up your weekend to gather your thoughts on this heady stuff to help guide the committee.  The deadline for making a submission is 11.59pm  on Friday, 3 April 2020.

Bob Edlin is a veteran journalist and editor for the Point of Order blog HERE.