The Henry VIII Clause?
SEE this story by Prof. Douglas Whalan:
Once upon a time, a very long time ago, there lived a very wicked king – and he was a king with a capital "K". The name of this king was King Henry VIII. He was a very large man,... we also had it on good authority that he ate very large meals,… he certainly had a large number of wives, admittedly most of them only for a short period of time. He also decided to have very large powers to make laws, and so it came to pass that this large King ensured that there was an Act. And if this very large King hadn't got his Act, probably someone would have got an axe. This Act was called the Statute of Sewers. That is not sewers as in Suez Canal, because this was long ago in 1531. The Statute of Sewers really was a stinker.
'The Statute delegates legislative powers, taxing powers and judicial powers.'
Ever since then, those good fairy godmothers, Parliament and scrutiny committees, have been trying to undo that kind of excessive grant of power. And but for those Parliamentary scrutiny committees and the courts, we would have all lived very unhappily ever after. Even today there are still some "Henry VIII clauses", so we all remain relatively miserable."
"Henry VIII" clause is explained as: Some statutory instruments are made under provisions of Acts which allow the instrument to change the parent Act itself, or to change other primary legislation. These provisions, allowing primary legislation to be amended by secondary legislation, are known as "Henry VIII" clauses, because an early example of such a power was conferred on King Henry VIII by the Statute of Proclamations 1539.
An expert says, "A Henry VIII clause is so called because of the penchant of the English monarch of that name to give himself power to amend (and in some cases to suspend or dispense with) statutes passed by the Parliament. So the expression "Henry VIII clause" has come to mean "a provision in a Bill which enables primary legislation to be amended or repealed by subordinate legislation with or without further parliamentary scrutiny". After the death of Henry VIII, such clauses fell into disuse. It was not until the Thatcher era that these clauses became frequent. This was paradoxical, even surprising, when one recalls that Mrs Thatcher had pledged "to get government off the people's backs." However it was not the then Prime Minister who was responsible for the re-emergence of these clauses but rather the influence of civil servants, who found it convenient to circumvent the need to obtain Parliamentary approval for subsequent amendments to the statutes concerned."
The legacy of Henry VIII continues – in India.
The Supreme Court had in 1966 in Jalan Trading struck down the clause in Section 37 of the Payment of Bonus Act, observing that "power to remove the doubt or difficulty by altering the provisions of the Act would in substance amount to exercise of legislative authority and that cannot be delegated to an executive authority". But later in 1974, in the Gammon India case, the Supreme Court referring to the Jalan case, upheld a similar provision.
It is accepted that the law to remove difficulties is not excessive delegation and is very much legal, but the question is what is ‘removing of difficulties'? Can the babu amend the Act in the name of removing difficulties?
Law-making is unfortunately not given the kind of importance it deserves.