stopped Commercial Orphan Works Exploitation in the UK Digital Economy Bill Clause 43

Why Clause 46 must go, too

Clause 46 must be removed. It empowers the Secretary of State to undo all of the changes to the Digital Economy Bill that have been so carefully negotiated, and make new changes. It is a “Henry VIII Clause” enabling changes to be made in pre-existing primary legislation by way of secondary legislation enacted via Statutory Instruments. A Secretary of State with a whipped majority can do more or less whatever he likes under Clause 46.

Henry VIII Clause - Wikipedia says:

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.[16] The Delegated Powers and Regulatory Reform Select Committee of the House of Lords issued a report concerning the use and drafting of such clauses, [17] an issue its chairman remarked "goes right to the heart of the key constitutional question of the limits of executive power". [18] Such clauses have often proved highly controversial — for instance, that in the Nationality, Immigration & Asylum Act 2002 which prompted the aforementioned report, and more recently the Legislative and Regulatory Reform Act 2006.

“Statutory Instruments”

Digital Economy Bill Section 46 does stipulate that decsions must be " laid before, and approved by a resolution of, each House of Parliament ". Wikipedia says "It should be noted that Parliament's control is limited to approving, or rejecting, the Instrument as laid before it: it cannot (except in very rare cases) amend or change it."

Government has stated that any Statutory Instruments to be enacted concerning Clause 43 must be subject to “Affirmative Resolution Procedure”. Wikipedia says:

Statutory Instruments which are subject to affirmative resolution are less common, making up about 10% of the total.[12] This is the more stringent form of parliamentary control as it requires positive approval, rather than the absence of a decision to annul. Accordingly, it is used where the delegated legislation may be more controversial.
The parent Act may require that the proposed Statutory Instrument is approved by both Houses of Parliament (or, in the case of an Instrument which relates to financial matters, by the
House of Commons only) either:
  • before it is made (ie in draft form),
  • after it is made, but before it can come into force, or
  • after it is made and has come into force, but it cannot remain in force for longer than a specified period (usually 28 days, excluding periods when Parliament is dissolved, prorogued or adjourned for more than four days) unless approved within that period.[10]
Once the Instrument is laid before Parliament, the Government will move a motion in each House that the Instrument is approved.
The last time a draft Statutory Instrument subject to affirmative procedure was not approved by the House of Commons was on 12 November 1969 when the House rejected four draft Orders relating to parliamentary constituencies.

Clause 46 in full:


Power to make consequential provision etc

(1) The Secretary of State may by regulations made by statutory instrument make incidental, supplementary, consequential, transitional, transitory or saving provision in connection with the amendments made by this Act.

(2) The regulations may—

(a) make different provision for different purposes,

(b) modify an Act passed before or in the same Session as this Act or subordinate legislation made before this Act is passed, and

(c) where they are made in connection with an amendment made by section 28 or by a provision listed in section 49(3), modify a provision of an Act passed, or subordinate legislation made, before the day on which that amendment comes into force.

(3) A statutory instrument containing regulations under this section that amend or repeal a provision of an Act may not be made unless a draft of the instrument has been laid before, and approved by a resolution of, each House of Parliament.

Any other statutory instrument containing regulations under this section is subject to annulment in pursuance of a resolution of either House of Parliament.

In this section—

“modify” includes amend, repeal or revoke;

“subordinate legislation” has the same meaning as in the Interpretation Act 1978.