A threat to pensions and democracy
Posted on 4 February 2013 by Jonathan Waters and Alex Fox
In September 2012, the Public Service Pensions Bill was presented to Parliament with government guarantees that it represented a ‘generous deal’ fixing pensions for the next 25 years. Squirrelled away in its detailed provisions is a wide-reaching ‘Henry VIII’ clause, which gives governments unprecedented powers to amend any legislation and even to make unilateral and retrospective changes that could adversely affect hundreds of thousands of public sector workers.
A Henry VIII clause is a provision that enables the government to repeal or amend legislation by way of secondary legislation without the need for parliamentary debate or scrutiny. In this sense, Henry VIII clauses are counter-democratic, effectively undermining parliamentary sovereignty.
In case that sounds over the top, support for this view is found at the highest level. Henry VIII clauses have been criticised by the Lords constitution committee as a ‘constitutional oddity’ that must be ‘clearly limited, exercisable only for specific purposes, and subject to adequate parliamentary scrutiny’.
The lord chief justice has recommended that they be ‘confined to the dustbin of history’. And a recent report on the bill by the Lords delegated powers and regulatory reform committee states that the current Henry VIII clause should be substantially limited.
In sweeping away existing legislative safeguards, the pensions bill has the potential — although the government insists this would not happen in practice — to be used to erode the accrued pension rights of members of the NHS pension scheme.
Theoretically, there is a legal safeguard against this: the affirmative resolution procedure. But this process is effectively useless, and has not been used to reject a piece of secondary legislation since 1969.
So, as the bill makes its way through the Lords, the BMA is lobbying for the Henry VIII clause to be removed, or at least be subjected to significantly tighter safeguards. Thousands of BMA members contacted their MPs as the bill went through the Commons, and there are now strong signals from the government that it is preparing amendments. However, we currently do not know whether they will go far enough.
As it is, the bill permits future governments to amend the legislation substantially, making changes that could adversely affect hundreds of thousands of people, without effective parliamentary scrutiny. As well as being patently unfair, we believe this would represent significant constitutional corruption.
Jonathan Waters is BMA legal group director. Alex Fox is head of litigation/arbitration at Manches law firm. A version of this article first appeared in The Lawyer magazine.