A Single Set of Rules for Henry VIII Powers Informed by Their Critiques

Abstract

The Henry VIII Power has long been challenged as an objectionable delegation of power to the Executive. Given they are so objectionable, it is surprising that in New Zealand there is no bespoke set of rules to ensure their use is scrutinised and controlled. This paper provides these rules. It sets out a process through which instruments promulgated under a Henry VIII Power should pass. The rules aim to be efficient, transparent and mitigate the risk of misuse. The Paper provides a background on Henry VIII Powers in New Zealand and analyses their use case. To inform the rules, the paper taxonomizes, analyses, and challenges the various critiques of Henry VIII Powers. By challenging the critiques, the paper identified how critics under-value pre-legislative scrutiny and the power of the Court. Also revealed was how Burton and Drewery’s policy-administration taxonomy of legislation provided a better way to analyse the appropriate scope of a Henry VIII Power. Parliament’s perceived monopoly on scrutiny and the democratic nature of Henry VIII Powers were also elucidated through further analysis. The critiques not only inform debate, but also provide a basis for the draft rules. The paper suggests that instruments promulgated through Henry VIII Powers should be limited in scope to administrative matters, be approved by Parliament following reasonable scrutiny, and be prevented from altering particular statutes. The paper concludes the draft rules are a promising tool to better regulate and inspire further study of Henry VIII Powers.