HAMLYN - College of Social Sciences and International Studies ...

Human Rights
process. A "Henry VIII clause" is something close to overriding
legislation by Ministerial decree. It is true that governments
control the legislature almost completely and can force through
virtually any primary legislation, but Ministerial power
exercised through a "Henry VIII clause" by way of delegated
legislation is even more dramatic.
When considering the democratic deficit involved in remedial
orders under the Act, it is worth noting that such an order can
contain "such incidental, supplemental, consequential or transitional
provision as the person making it considers appropriate"
33 ; it can be retrospective in its effect 34 ; and it can amend
primary legislation other than that which contains the incompatible
legislation. 35 It is a very far-reaching power. 36
Such an amending statutory instrument normally 37 requires
an affirmative resolution in both Houses of Parliament, but that
is saying very little. Governments have no difficulty in getting
such an affirmative resolution. The Act provides for a special
procedure for fast track "remedial orders" 38 the main ingredient
of which is that the order has to be laid before parliament for a
longer than usual period of time, so giving more time for
opposition to build up. But since the government can normally
force anything through, this extra time is unlikely to be of much
consequence.
A court's declaration of incompatibility creates no duty on the
Government to act by way of fast-track remedial action. The Act
says that the fast track procedure can be activated where the
Minister "considers that there are compelling reasons" 39 —a
formula that slightly tips the balance against action. There have
to be not merely reasons but "compelling reasons".
33 Human Rights Act 1998, Sched. 2, para. l(l)(a).
34 ibid., para. l(l)(b). But no one can be found guilty of an offence solely as the
result of the retrospective effect [ibid., para. 1(4)).
35 ibid., para. l(2)(a).
36 The European Communities Act 1972, s. 2(2) permits a statutory instrument to
give effect to a Directive by amending an Act of Parliament. For commentary
on the Henry VIII clause aspects of the 1998 Act see, for instance, D. Feldman,
"The Human Rights Act 1998 and constitutional principles", [1999] L.S. 165 at
187-191.
37 In cases of urgency this requirement is waived but the remedial order lapses
after 120 days unless it has been approved by Parliament. (Schedule 2, para.
4.)
38 Schedule 2.
39 s. 10(l)(b).
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