Lord (Martin) Thomas writes…How the government smuggles potentially tyrannical powers into legislation using the word “modify”

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Lord (Martin) Thomas has sent us this speech which he made at the committee stage of the agriculture bill on July 28th, explaining how “Henry VIII clauses” are being smuggled into legislation via the word “modify”. You can read the full debate in Hansard here.

My Lords, it is a pleasure to follow the indignation expressed by the noble Baroness, Lady Jones of Moulsecoomb. Sir Edward Leigh summed up the Government’s attitude to a Henry VIII clause admirably when he said in the other place, when speaking on the then current European Union (Withdrawal) Bill:

“We have heard a lot about Henry VIII. When I was a rebel I used to care about these things. Now I am a loyalist I let the Government get away with it … Henry VIII is a bastard, but he is my kind of bastard.”—[Official Report, Commons, 11/9/17; col. 466.]

The Proclamation by the Crown Act 1539 was the work of Thomas Cromwell, Henry VIII’s Secretary of State—very well delineated in Hilary Mantel’s trilogy. He sometimes had trouble getting his Bills past Parliament. The Act said:

“The King for the time being, with the advice of his council, or the more part of them, may set forth proclamations under such penalties and pains as to him and them shall seem necessary, which shall be observed as though they were made by act of parliament”..

Importantly, even Henry’s proclamations could not interfere with existing legislation and rights. It did not give power, as this Bill does, to repeal existing legislation, so Clause 47 is a Henry VIII-plus provision. Under King Henry’s Act, an offender could be subject to forfeitures or imprisonment for not obeying an article of a proclamation and, what is more,

“if any offending will depart the realm, to the intent he will not answer his said offence, he shall be adjudged a traitor.”​

That meant hanging, drawing and quartering in those days. I recall that it was part of the Conservative Party’s manifesto in 2019, as part of its push to modernise itself, to reintroduce treason into our courts as an active criminal offence.

Back to Henry VIII: his Statute of Proclamations was one of the first statutes to be repealed in its entirety following his death in 1547. “Rightly so”, noble Lords may think. It lasted only 12 years before it was immediately repealed. Sir William Blackstone in his Commentaries on the Laws of Englandvol. 1 chapter 7, published in 1765, said that Henry’s Act was

“a statute which was calculated to introduce the most despotic tyranny, and which must have proved fatal to the liberties of this kingdom, had it not been luckily repealed”.

In case noble Lords think I am lost in history, I move from Henry VIII and Sir William Blackstone to the noble and learned Lord, Lord Judge. Speaking in a debate on a report of the Constitution Committee, he said caustically,

“we are giving these powers to the Prime Ministers of our day which the men of the 1539 Parliament were not prepared to give to the dictating ogre who ran the country in theirs. We give powers that Parliament would not give to the great king.”—[Official Report, 12/6/19; col. 460.]

With that background, let us look at the current Bill and its amendments. Clause 47(3) states:

“Any power to make regulations under this Act includes power … (d) to make supplementary, incidental, consequential, transitional, transitory or saving provision.”

Subsection (4) says:

“The provision which may be made by virtue of subsection (3)(d) includes provision modifying primary legislation, retained direct EU legislation or subordinate legislation.”

“Modify” is a weasel word against which the Delegated Powers and Regulatory Reform Committee, of which I was a member up to last year, has inveighed on many occasions. It dare not speak its name in its place in the Bill. Noble Lords have to turn to Clause 48—the definitions clause—to discover what it really means. That clause says that

“‘modify’ includes amend, revoke and repeal (and related expressions are to be construed accordingly)”.

Noble Lords may think there is not much more you can do to existing legislation, although the definition, by use of the word “includes”, leaves it open for further interpretation.

That, of course, is not the end of it since Clause 50 permits the Secretary of State or the appropriate authority—the Welsh Government or whoever—to modify the Agriculture Bill itself when it becomes an Act, so there is the power to modify this Act by a simple statutory instrument, hence Amendment 298.

At Second Reading, I said:

“At some unknown future time, the Minister will slot a package of policies into this frame as and when he has worked them out. He will introduce a series of unamendable SIs for minimum scrutiny and, save for one issue only, with no consultation.”—[Official Report, 10/6/20; col. 1811.]

I suspect Sir Edward’s “my kind of bastard” will do just that. The noble Lord, Lord Carrington, is entirely right to inquire how the power in this Bill will be used.

* Martin Thomas is a Liberal Democrat member of the House of Lords and the party's Shadow Attorney General

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2 Comments

  • Quite right! ‘Modify’ is a weasel word here. It gives the impression of ‘tweak’, ‘bend’, have latitude within agreed parameters. Not in any way revoke, amend or repeal. My noble Lord I encourage you and your house to say as you did to the Pembrokeshire Tudors ‘Dim Diolch, Cariad.’ In English ‘No Thank You’.

  • David Garlick 4th Aug '20 - 2:37pm

    In LA’s improve, reorganise, refocus etc etc cover for cuts in much the same way. It is endemic if we allow it.

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