The clause is known asa Henry VIII clause for the amount of power it gives the executive. It is generally frowned upon by constitutional scholars, and most MPs, who think that it is more proper for changes to legislation to go through Parliament where they can be scrutinised by MPs and people who submit to a select committee.
The Henry VIII clause was included in a law that repealed the two laws that the former Labour Government had passed to replace the Resource Management Act (RMA). It reverts the resource management regime back to the old RMA, but carries across a couple of changes from Labour’s laws, including a new fast-track process.
On his way into the House today, Bishop admitted he did not like Henry VIII clauses as a point of principle.
“I don’t like Henry VIII clauses,” he said.
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However, he defended this clause by noting that Labour had included a similar clause in one of its own laws passed to replace the RMA - the very ones Bishop was repealing.
“There’s a Henry VIII clause in the existing NBA [Natural and Built Environments Act] that Labour passed. It’s there as a catchall for any unforeseen consequences. The officials tell me it is necessary. It’s a very complicated piece of legislation and amends a whole range of different things,” Bishop said.
The bill is being passed under urgency this week. The clause was brought to public attention yesterday when Victoria University Law Professor Dean Knight began posting about it to X, the platform known as Twitter.
In Parliament last night, Bishop said he had seen the tweets.
“I am an inveterate tweeter - got to get off the old Twitter,” Bishop said.
Labour’s Grant Robertson interjected, saying, “you really do”, to which Bishop replied, “I know, yeah”.
Knight told the Herald that the clause in the new legislation allows the Government to “by secondary legislation repeal, revoke or amend different provisions with modifications or additions to address transitional matters.
“It is secondary legislation that allows them to do that to primary legislation, so that is why it is constitutionally eyebrow-raising, because it is the executive government changing the output of the democratically elected House of Representatives,” Knight said.
Victoria University of Wellington Law Professor Dean Knight.
Knight said it was important such clauses were only used “where there is a justification”. The problem with this bill was that it was passed under urgency, leaving no time for interested observers to work out whether it was justified or not.
“The residual power to mop up unforeseen consequences and things like that - there is an argument that that might be not objectionable; the difficulty here is we don’t know because the Henry VIII clause and the bill itself did not go through a select committee process because it was passed under urgency.
“So you’ve got two constitutionally [and] democratically concerning processes or provisions that combine to elevate the eyebrow raising,” Knight said.
He said there was a third problem with the bill, which is that it was not a “clean” repeal bill, because it included new provisions in the replacement RMA.
Knight described it as a “legislative Pik ‘n Mix”.
“It’s an unusual bill, it’s not a clean repeal, it’s being done under urgency, without select committee scrutiny and public submissions, and the heart of it is this blank cheque that is given to the executive to modify and override those provisions - those three things combine to be concerning,” he said.
Thomas Coughlan is Deputy Political Editor and covers politics from Parliament. He has worked for the Herald since 2021 and has worked in the press gallery since 2018.
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