The so-called Henry VIII clause is topical at the moment so I thought I’d write a short post about what it is and where it originates. Essentially, according to the Parliamentary website, “the Government of the day sometimes adds this provision to a Bill to enable a repeal or amend after the Bill has become an Act of Parliament.” That’s not what’s causing the current furore – the problem is that the resulting Act can be changed without further parliamentary scrutiny if the Government so wishes. The House of Lords Select Committee on the Scrutiny of Delegated Powers in its report of 1992-93 defined a Henry VIII clause as, “a provision in a Bill which enables primary legislation to be amended or repealed by subordinate legislation, with or without further Parliamentary scrutiny.” [HL 57 1992-93, para 10].
And what you might wonder does the matrimonially challenged Henry VIII have to do with this? Well, these provisions are named after the 1539 Statute of Proclamations by the Crown which meant that Henry VIII could legislate simply by having a proclamation read out. That sounds suspiciously like kicking Parliament into touch and ruling as an absolute monarch. However, G.R. Elton didn’t believe that the act was meant to enable to the king to rule without Parliament or make his own laws rather it was an extraordinary power to be used when speed was of the essence. The example that is generally used is that proclamations were used to prevent the export of English coinage abroad. Elton references price control – or in other words Henry’s chief minister, Thomas Cromwell, was merely underlining, with typical belt and brace thoroughness, by a Parliamentary Act the way in which proclamations had always worked in regards to enacting well rehearsed uses such as changes to coinage. Elton also notes that the law made it quite clear that this was not an excuse for Henry to go around arresting, imprisoning or executing anyone just because he didn’t like the cut of their jib.
It is unsurprising that the mastermind behind this nifty piece of maneuvering was none other than Thomas Cromwell. Essentially things were moving fast in terms of domestic and religious policy as well as foreign policy which was decidedly volatile at the beginning of 1539. Even Cromwell had to agree that the so-called Reformation Parliament was “tractable” – and given that a large number of MPs were on Cromwell’s list of friends, family and acquaintances it is perhaps not surprising. Even so, Cromwell did not always have time to draft a bill and then wait for the parliamentary process to be completed before a bill became law. The act makes it clear at the very beginning:
An act that proclamations made by the king shall be obeyed. Forasmuch as the king’s most royal majesty, for divers considerations, by the advice of his council hath heretofore set forth divers and sundry his grace’s proclamations, as well for and concerning divers and sundry articles of Christ’s religion as for an unity and concord to be had amongst the loving and obedient subjects of this his realm and other his dominions, and also concerning the advancement of his commonwealth and good quiet of his people (which nevertheless divers and many froward, wilful, and obstinate persons have wilfully contemned and broken, not considering what a king by his royal power may do, and for lack of a direct statute and law to coerce offenders to obey the said proclamations… at all times by authority of this act his proclamations, under such penalties and pains and of such sort as to his highness and his said honourable council or the more part of them shall see[m] necessary and requisite; and that those same shall be obeyed, observed, and kept as though they were made by act of parliament for the time in them limited, unless the king’s highness dispense with them or any of them under his great seal.
Cromwell seems to have intended the proclamations to be administered by common law but as the quote from the act demonstrates, ultimately because of Parliamentary intractability on the part of the Lords, the proclamations were to be administered by a council: workable in theory but not in practice. The act was amended in 1543 to change the mechanism by which the council worked but finally repealed in 1547 after Henry’s death– not that it seems to have made a jot of difference as proclamations continued to be a perfectly legal way of doing things.
Proclamations would cause the Stuarts no end of problems – you could probably argue that Charles I lost his head over them given that he ruled and collected taxes without the aid of Parliament for more than a decade. Parliament was quite clear that the king didn’t have the right to go around demanding money – taxes had to be voted to him by Parliament and for him to suggest otherwise was illegal. He misused proclamation assuming that he could be behave as an absolute monarch.
And that is where I shall stop as I have no desire for this post to move from an interesting historical meander into political debate about the rights and wrongs of its use in the modern day. If nothing else it proves that Cromwell was a seriously wily political operator.
Bush L “The Act of Proclamations: A Reinterpretation” The American Journal of Legal History. Vol. 27, No. 1 (Jan., 1983), pp. 33-53
Elton, G.R.Tudor Rule and Revolution: Essays for G R Elton from His American Friends
G. R. Elton, The Rule of Law in Renaissance England, in TUDOR MEN AND INSTITUTIONS 265-94 (A. J. Slavin ed., 1972), reprinted in 1 STUDIES IN TUDOR AND STUART POLITICS AND GOVERNMENT 260-84 (1974)