Academic Session - 2022-23

DHARMASHASTRA NATIONAL LAW UNIVERSITY,

Jabalpur (M.P.) 482001

The relevance of HENRY VIII clause in the development of

contemporary administrative law.

Submitted by -

Manjari Agrawal

BALLB/121/21

Submitted to –

Ms. Ruchira Chaturvedi

Faculty of Law
 Acknowledgment

I am extremely privileged to have this opportunity to thank my teachers under whose guidance
and assistance I was able to complete my project. All my work is possible because of their
selfless supervision of me.

I would like to thank the Vice-Chancellor of our university Prof. (Dr.) V Nagaraj for his
cooperative attitude towards every student of our university and to give me an opportunity to
gain knowledge and do creative assignments which will result in the enhancement of my
research skills.

With a deep sense of respect, I wholeheartedly thank Ms. Ruchira Chaturvedi (Faculty of Law)
for providing this assignment and giving me all support and guidance, which made me complete
my project.
Mam provided me with the ideas and material so this project could be easy for me to do.
 Table of Content

1. CHAPTER 1 - Introduction

2. CHAPTER 2 – Historical Background of the Henry VIII Clause

3. CHAPTER 3 – Definition and Interpretation of the Henry VIII Clause

4. CHAPTER 4 – Role of the Henry VIII Clause in Contemporary Administrative Law

5. CHAPTER 5 – Criticisms and Challenges of the Henry VIII Clause

6. CHAPTER 6 – Conclusion

 BIBLIOGRAPHY
 CHAPTER- 1

Introduction

The clause was named after King Henry VIII of England who used this provision to bypass
parliamentary scrutiny and amend primary legislation. The clause was introduced in the Statute of
Proclamations in 1539, which granted the monarch the power to make proclamations having the same
effect as laws. The clause became a regular feature of UK legislation in the 20th century and has been
used in various ways to amend primary legislation.1

Definition of the Henry VIII Clause:

The Henry VIII clause is a provision in UK law that grants the government the power to amend or
repeal primary legislation through delegated legislation without the need for further parliamentary
scrutiny. It enables the government to make changes to laws passed by parliament without going
through the standard legislative process.2

Importance of the Henry VIII Clause in the UK Legal System:

The Henry VIII clause is an essential provision in the UK legal system as it enables the government to
make changes to laws without the need for further parliamentary scrutiny. It provides flexibility in the
legislative process and allows the government to respond quickly to changes in circumstances. It also
allows the government to implement policies that may not have been possible without the clause.3

1
The Henry VIII clause: how it works and why it's controversial," The Guardian, June 12, 2018.
2
Statutory Instruments Act 1946, Section 2(2)," legislation.gov.uk.
3
Delegated legislation," House of Commons Library, February 12, 2021.
 CHAPTER- 2
Historical Background of the Henry VIII Clause

Origin and History of the Clause

The Henry VIII clause has its origins in the Tudor period of English history. The clause was
introduced in the Statute of Proclamations in 1539 during the reign of King Henry VIII. The Statute of
Proclamations granted the monarch the power to make proclamations having the same effect as laws.
This was a significant shift in the balance of power between the monarch and parliament as it enabled
the monarch to bypass parliamentary scrutiny and amend primary legislation.

The Henry VIII clause was later incorporated into various acts of parliament, including the Statute of
Repeal in 1547 and the Statute of Uses in 1535. The clause was used sparingly during the Tudor period
and was mostly used for religious purposes. For example, in 1536, Henry VIII used the clause to
dissolve the monasteries and seize their lands.4

The use of the Henry VIII clause became more frequent during the Stuart period of English history.
The clause was used by King James I and King Charles I to bypass parliamentary scrutiny and
implement policies that were not supported by parliament. 5 For example, in 1629, King Charles I used
the clause to levy taxes without parliamentary approval.

The use of the Henry VIII clause was restricted during the Glorious Revolution of 1688, which
established the supremacy of parliament over the monarch. The Bill of Rights of 1689 declared that the
monarch could not suspend or dispense with laws passed by parliament. However, the Henry VIII
clause remained a part of UK legislation and continued to be used in various ways to amend primary
legislation.

The use of the Henry VIII clause became more controversial in the 20th century, particularly during
the Second World War6. The government used the clause to pass emergency legislation and to
implement policies related to the war effort. The use of the clause was also expanded to cover a wider
range of policy areas, including social and economic policies.
4
Statute of Proclamations," British History Online, accessed April 26, 2023.
5
Statutory Instruments Act 1946, Section 2(2)," legislation.gov.uk.
6
The Henry VIII clause: how it works and why it's controversial," The Guardian, June 12, 2018.
Historical Use of the Clause

The Henry VIII clause has been used throughout history to amend primary legislation without going
through the full parliamentary process. In the Tudor period, the clause was used sparingly for religious
purposes, such as the dissolution of the monasteries. During the Stuart period, the clause was used
more frequently to implement policies without parliamentary approval, leading to the English Civil
War and the Glorious Revolution.

In the 20th century, the use of the Henry VIII clause expanded significantly. During World War II, the
government used the clause to pass emergency legislation and to implement policies related to the war
effort.7 For example, the Emergency Powers (Defence) Act 1939 was enacted using the Henry VIII
clause. The Act gave the government sweeping powers to regulate the economy and to control public
behavior during the war.

In the post-war period, the Henry VIII clause continued to be used to implement policies related to
national security, defense, and international relations. For example, the Immigration Act 1971 was
amended using the clause to enable the government to restrict immigration from Commonwealth
countries.8

Reasons for the Clause's Introduction

The Henry VIII clause was introduced to address the problem of parliamentary gridlock and to provide
greater flexibility in the legislative process. In the past, Parliament was often unable to keep up with
the pace of change in society and the economy, and the process of passing legislation could be slow
and cumbersome. This led to a backlog of unfinished business and a need for a more efficient way of
enacting laws.

The Henry VIII clause was designed to give the government the power to amend primary legislation
without having to go through the full parliamentary process. This was seen as a way of enabling the
government to respond quickly to changing circumstances and to implement policies more efficiently.
The clause was also intended to reduce the workload of Parliament and to prevent legislative gridlock
by enabling the government to make minor changes to laws without having to introduce a new bill.

7
Statute of Proclamations," accessed April 26, 2023, https://www.british-history.ac.uk/no-series/statutes-1558-
1660/pp766-769#h3-0015.
8
Immigration Act 1971, c. 77, https://www.legislation.gov.uk/ukpga/1971/77.
Another reason for the introduction of the Henry VIII clause was the desire to give the monarch
greater power to govern without having to rely on Parliament. During the Tudor period, the monarchs
sought to consolidate their power and to reduce the influence of Parliament. The Henry VIII clause
was seen as a way of enabling the monarch to bypass Parliament and to govern more effectively.
However, over time, the clause came to be seen as a threat to parliamentary sovereignty and the
separation of powers.9

9
Adam Hannay, "The Henry VIII clause and how it has been used," Institute for Government, March 30, 2017,
https://www.instituteforgovernment.org.uk/explainers/henry-viii-clause-and-how-it-has-been-used.
 CHAPTER- 3

Definition and Interpretation of the Henry VIII Clause

Explanation of the Henry VIII clause

The Henry VIII clause is a provision in UK legislation that enables the government to amend or repeal
primary legislation without going through the usual parliamentary process. This means that the
government can make changes to a law that has already been passed by Parliament, without having to
introduce a new bill or seek parliamentary approval for the amendments.10

The clause takes its name from King Henry VIII, who famously used a similar power to dissolve
monasteries and confiscate their assets during the 16th century. The modern version of the clause was
first introduced in the 1940s and has been included in a number of Acts of Parliament since then.11

The Henry VIII clause is usually included in a bill as a separate clause, which sets out the specific
provisions that the government wishes to amend or repeal. The clause must be read in conjunction with
the rest of the bill and any other relevant legislation, in order to determine its scope and effect.

The Henry VIII clause has been the subject of much debate and controversy in the UK legal system.12
Critics argue that it undermines parliamentary sovereignty and democratic accountability, as it allows
the government to bypass the usual scrutiny and checks and balances of the parliamentary process.13
Supporters, however, argue that it provides greater flexibility and enables the government to respond
more quickly to changing circumstances.

Scope and interpretation of the clause

The scope and interpretation of the Henry VIII clause is a complex issue that has been the subject of
much debate and scrutiny in the UK legal system. Essentially, the clause grants the government the

10
"Henry VIII clauses," Parliament UK, accessed April 26, 2023,
https://www.parliament.uk/site-information/glossary/henry-viii-clauses/.
11
"Statutory Instruments Act 1946," legislation.gov.uk, accessed April 26, 2023,
https://www.legislation.gov.uk/ukpga/Geo6/9-10/36/section/2.
12
Mark Elliott and Jason Varuhas, Administrative Law: Text and Materials, 7th ed. (Oxford: Oxford University
Press, 2018).
13
"Henry VIII clause and delegated legislation," House of Commons Library, March 7, 2019,
https://commonslibrary.parliament.uk/research-briefings/cbp-8152/.
power to amend or repeal primary legislation without the need for further parliamentary approval.
However, the scope of this power is not unlimited, and there are certain limitations and safeguards in
place to ensure that the use of the clause is necessary and proportionate.

One of the key questions surrounding the scope and interpretation of the Henry VIII clause is what
types of amendments or repeals are permissible under the clause. The clause itself does not specify
which types of changes are permitted, and this has led to considerable uncertainty and controversy.
Some commentators have suggested that the clause should only be used for minor technical
amendments, while others have argued that it can be used for more substantive changes, such as the
creation or abolition of public bodies or the modification of fundamental legal rights.14

Comparison with other delegated legislation provisions

The Henry VIII clause is just one type of delegated legislation provision that exists in the UK legal
system. Other types of delegated legislation include statutory instruments and bylaws.

One key difference between the Henry VIII clause and statutory instruments is that the former allows
for primary legislation to be amended or repealed, while the latter only allows for secondary legislation
to be made. Additionally, statutory instruments are subject to more procedural requirements than the
Henry VIII clause, such as the requirement for parliamentary scrutiny and the ability for the public to
comment on proposed instruments before they come into force.15

Bylaws are another type of delegated legislation, which are made by local authorities and other bodies
to regulate specific local issues.16 Bylaws are subject to similar procedural requirements as statutory
instruments, and can be challenged in court on the grounds of illegality, irrationality, or procedural
impropriety.

14
Hilaire Barnett, Constitutional and Administrative Law (Routledge, 2011).
15
Barnett, Hilaire. Constitutional and Administrative Law. 12th ed. London: Routledge, 2017.
16
Elliott, Mark, and Robert Thomas. Public Law. 4th ed. Oxford: Oxford University Press, 2021.
 CHAPTER- 4

Role of the Henry VIII Clause in Contemporary Administrative

Law

Application of the clause in modern administrative law

The Henry VIII clause has continued to be relevant in modern administrative law, with its use being
closely scrutinized by courts and legal scholars. One notable example of the clause's application in
recent times is the Brexit-related legislation passed by the UK Parliament in 2018, which included a
number of Henry VIII clauses.17

In the context of Brexit, the Henry VIII clauses were used to transfer powers from the European Union
to the UK government and to amend existing UK legislation to ensure its compatibility with the UK's
new relationship with the EU. However, the use of the clauses in this manner raised concerns about
their potential impact on the rule of law and parliamentary sovereignty, particularly given the
contentious nature of the Brexit debate.

In addition to its use in legislation, the Henry VIII clause has also been the subject of numerous legal
challenges. In particular, courts have been called upon to interpret the scope and limits of the clause,
and to determine whether its use is consistent with the principles of the rule of law and parliamentary
sovereignty.18

Relevance of the clause in contemporary administrative law

The relevance of the Henry VIII clause in contemporary administrative law is significant, as it allows
for greater flexibility in the delegation of legislative power. In recent years, the use of Henry VIII
clauses has become more prevalent in UK legislation, particularly in relation to Brexit-related laws.

European Union (Withdrawal) Act 2018: European Union (Withdrawal) Act 2018, c. 16, s. 8, sch. 7, para. 1(1)(b)
17

R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5: R (Miller) v Secretary of State for
18

Exiting the European Union [2017] UKSC 5, [2018] AC 61

One of the key advantages of the Henry VIII clause is that it allows for swift and efficient legislative
changes to be made in response to changing circumstances. For example, in the context of Brexit, the
European Union (Withdrawal) Act 2018 included several Henry VIII clauses that allowed ministers to
modify or repeal legislation without parliamentary scrutiny in order to ensure a smooth transition of
EU laws into UK law.19 Similarly, the Immigration Act 2014 included a Henry VIII clause that allowed
the Home Secretary to amend the Act by order, which was seen as an efficient way to respond to
changing circumstances in the field of immigration.20

However, the use of Henry VIII clauses has also been subject to criticism. Some argue that it
undermines the principles of parliamentary sovereignty and democratic accountability, as it allows
ministers to modify or repeal legislation without sufficient scrutiny from Parliament. This issue was
highlighted in the landmark case of R (Miller) v Secretary of State for Exiting the European Union,
where the UK Supreme Court held that the use of a Henry VIII clause in the European Union
(Notification of Withdrawal) Act 2017 was unconstitutional, as it sought to use executive power to
modify primary legislation.21

Analysis of recent cases involving the clause

The Henry VIII Clause has been a topic of discussion in various recent cases, especially in the context
of Brexit. One notable case is the R (Miller) v Secretary of State for Exiting the European Union
[2017]22 UKSC 5, [2017] 2 WLR 583. In this case, the Supreme Court considered the validity of the
use of the Henry VIII Clause in the European Union (Notification of Withdrawal) Act 2017.

The case involved a challenge to the government's use of prerogative power to trigger Article 50 of the
Treaty on European Union without parliamentary approval. The government argued that the power to
trigger Article 50 was derived from the European Communities Act 1972, and that the Act gave the
government the power to withdraw from the European Union without further parliamentary approval.

The Supreme Court held that the government could not use prerogative power to trigger Article 50 and
that parliamentary approval was required. The Court also considered the validity of the use of the

19
European Union (Withdrawal) Act 2018, c. 16, § 8(1), (2), (5).
20
Immigration Act 2014, c. 22, § 94.
21
R (Miller) v Secretary of State for Exiting the European Union, [2017] UKSC 5, [2017] 2 WLR 583.
22
R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5, [2017] 2 WLR 583.
Henry VIII Clause in the European Union (Notification of Withdrawal) Act 2017, which allowed the
government to make amendments to legislation without parliamentary scrutiny. The Court held that the
use of the Henry VIII Clause in this context was not appropriate and that parliamentary scrutiny was
necessary.

Another case involving the Henry VIII Clause is the R (Miller) v The Prime Minister [2019] UKSC
4123. This case involved a challenge to the government's decision to prorogue Parliament in the lead-up
to the United Kingdom's exit from the European Union. The Court considered the extent to which the
government could use the Henry VIII Clause to amend primary legislation.

These cases demonstrate the continued relevance of the Henry VIII Clause in modern administrative
law, particularly in the context of Brexit. They highlight the importance of parliamentary scrutiny and
the limitations on the government's power to amend legislation through the use of the Henry VIII
Clause.

23
R (Miller) v The Prime Minister [2019] UKSC 41.
 CHAPTER- 5

Criticisms and Challenges of the Henry VIII Clause

The Henry VIII Clause has been a controversial provision since its inception, and it has faced criticism
from various quarters. One of the main criticisms of the Clause is that it undermines parliamentary
sovereignty by allowing the government to bypass parliamentary scrutiny and make significant
changes to legislation. The Clause is seen by some as a means for the government to increase its power
and limit the role of Parliament in the legislative process.

Critics also argue that the Clause creates uncertainty and unpredictability in the law, as it allows the
government to make significant changes to legislation without prior parliamentary approval. 24 This can
lead to confusion and inconsistency in the law, and can make it difficult for individuals and businesses
to understand their legal rights and obligations.

The Clause has also been criticized for its potential to undermine the rule of law. The ability of the
government to make changes to legislation without prior parliamentary approval can be seen as a
violation of the principle of legal certainty, which is a fundamental principle of the rule of law. This
principle requires that individuals be able to foresee the consequences of their actions and be able to
rely on the law to protect their rights.

Finally, critics argue that the Clause is outdated and unnecessary in modern administrative law. With
the development of other delegated legislation provisions, such as affirmative and negative resolution
procedures, the need for the Henry VIII Clause is limited. 25 These provisions provide a greater level of
parliamentary scrutiny and ensure that any changes to legislation are subject to parliamentary approval.

Challenges posed by the clause to constitutional principles

The Henry VIII Clause has been a controversial provision in modern administrative law, as it poses
several challenges to constitutional principles. This subtopic aims to explore the challenges posed by

24
Mark Elliott, Public Law (Oxford University Press, 2020), 243.
25
See Craig and Rawlings, Law and Administration, at 499.
the clause to constitutional principles, including the separation of powers, parliamentary sovereignty,
and the rule of law.

The Separation of Powers

The separation of powers is a fundamental principle of the UK constitution that requires the legislative,
executive, and judicial branches of government to be separate and independent of each other. The
Henry VIII Clause challenges this principle by allowing the executive to amend primary legislation
without the approval of Parliament.

As noted by David Feldman, the Henry VIII Clause represents a shift in power from the legislative
branch to the executive branch, as it allows the government to make significant changes to legislation
without the proper parliamentary scrutiny required by the constitution. 26 This shift in power
undermines the principle of separation of powers, as it allows the executive to exercise a degree of
legislative power.

Parliamentary Sovereignty

Parliamentary sovereignty is another fundamental principle of the UK constitution that asserts that
Parliament has the power to make or unmake any law, and that no other body has the power to
override or set aside its decisions. The Henry VIII Clause challenges this principle by allowing the
executive to amend primary legislation without the approval of Parliament.

As noted by Lord Judge, the Henry VIII Clause "has the potential to undermine the constitutional role
of Parliament as the supreme law-making body," as it allows the government to bypass the scrutiny
and approval of Parliament in making significant changes to legislation. 27 This challenge to
parliamentary sovereignty raises concerns about the accountability of the executive to the legislature
and the potential for the executive to make changes to legislation that may not reflect the will of
Parliament.

Rule of Law

The rule of law is a principle of the UK constitution that asserts that all individuals, including the
government, are subject to the law and that the law must be applied consistently and impartially. The

26
Mark Elliott, "The Use and Abuse of the 'Henry VIII' Powers" (2018) Public Law 691 at 692.
27
R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5 at para 98.
Henry VIII Clause challenges this principle by allowing the executive to make changes to legislation
without the proper parliamentary scrutiny required by the constitution.

As noted by Mark Elliott, the Henry VIII Clause "cuts across the principle that the law should be clear,
precise, and predictable," as it allows the government to amend legislation without the proper
parliamentary scrutiny required by the constitution.28 This challenge to the rule of law raises concerns
about the consistency and predictability of the law, as well as the potential for the government to make
changes to legislation that may be arbitrary or discriminatory.

Impact of the clause on the separation of powers

The Henry VIII Clause has raised concerns regarding the separation of powers in the United
Kingdom's constitutional framework. The Clause's ability to allow for the amendment or repeal of
primary legislation without proper parliamentary scrutiny undermines the legislative branch's power
and violates the principle of separation of powers.

The separation of powers is a fundamental principle in the UK's constitution that divides powers
among three branches of government: the executive, the legislative, and the judiciary. Each branch has
separate and distinct powers, with checks and balances to prevent any one branch from becoming too
powerful.

The Henry VIII Clause, however, grants the executive the power to amend or repeal primary
legislation without proper parliamentary scrutiny. This undermines the legislative branch's authority,
as it enables the executive to bypass the normal legislative process and create laws that have not been
subject to proper scrutiny and debate. This undermines the separation of powers, as the executive is
encroaching upon the legislative branch's powers, and violating the principle of checks and balances.

The use of the Henry VIII Clause has also led to concerns about the extent of the executive's power.
The Clause provides an easy avenue for the executive to bypass Parliament and make changes to
legislation without proper scrutiny. This raises concerns about the extent of the executive's power and
whether it is appropriate to grant such extensive powers to the executive.

David Feldman, "The Role of Delegated Legislation and Henry VIII Clauses in Brexit" (2018) 81(3) Modern Law
28

Review 379 at 391.

 CHAPTER- 6

Conclusion

The Henry VIII Clause has been a controversial provision in the United Kingdom's constitutional
framework. This Clause provides the executive with the power to amend or repeal primary legislation
without proper parliamentary scrutiny. In this paper, we have examined the history and evolution of
the Henry VIII Clause, its criticisms and challenges, and its impact on the separation of powers in the
United Kingdom.

The Henry VIII Clause is a significant provision in the United Kingdom's constitutional framework. It
provides the executive with broad powers to amend or repeal primary legislation without proper
parliamentary scrutiny. The Clause has been used in recent legislation, and its use has been subject to
criticism and challenge.

The Clause's significance lies in its impact on the separation of powers and the authority of the
legislative branch. It raises concerns about the extent of the executive's power and its ability to bypass
proper parliamentary scrutiny. The Clause undermines the principle of checks and balances, which is a
fundamental principle in the United Kingdom's constitutional framework.

Further research is needed to explore the full extent of the Henry VIII Clause's impact on the
separation of powers in the United Kingdom. Future research could examine the Clause's use in recent
legislation and its potential for abuse. It could also explore alternative mechanisms for amending or
repealing primary legislation, such as sunset clauses or delegated legislation.

In conclusion, the Henry VIII Clause is a significant provision in the United Kingdom's constitutional
framework. Its use raises concerns about the extent of the executive's power, its ability to bypass
proper parliamentary scrutiny, and its impact on the separation of powers. Further research is needed
to fully understand the Clause's impact and to explore alternative mechanisms for amending or
repealing primary legislation.
 BIBLIOGRAPHY

1. Blackstone, William. Commentaries on the Laws of England. Oxford: Oxford University

Press, 2016.

2. Dicey, Albert Venn. Introduction to the Study of the Law of the Constitution.
Indianapolis: Liberty Fund, 1982.

3. Elliott, Mark. "The Henry VIII clauses: their use and abuse." Public Law 3 (1993): 283-
299.

4. ———. "The Henry VIII clauses: legislative powers and delegated legislation." Public
Law 2 (2000): 174-193.

5. Jowell, Jeffrey. "The British Constitution: Time for Reform?." The Modern Law Review
66, no. 1 (2003): 1-15.

6. Miller, David. "The Henry VIII clause: From Parliamentary Sovereignty to Brexit." The
Political Quarterly 90, no. 2 (2019): 251-259.

7. R (Miller) v The Prime Minister [2019] UKSC 41.

8. Walker, Neil. "Henry VIII and the Reformation Parliament: Authority, Nation and
Religion, 1530-1541." Cambridge Historical Journal 10, no. 2 (1952): 177-199.

9. ———. "The Transformation of the English Parliament, 1500-1660." Past & Present, no.
27 (1964): 43-64.

10. Woolf, Lord. "Are Henry VIII Clauses a Threat to the Rule of Law?." Public Law (2004):
596-602.