Remedying remedial orders: are some s 10 HRA remedial orders <i>ultra vires</i> ?
Robert Craig
What the paper says
Case law has established that Henry VIII clauses must be construed narrowly against the executive. Such clauses cannot be used on later Acts unless parliament has used crystal clear future-binding words. Section 3 Human Rights Act 1998 (‘HRA’) contains such wording. Section 10 and Schedule 2 HRA do not contain such wording. This article suggests that it follows that some remedial orders passed under s 10 HRA are ultra vires because they purport to amend Acts passed after the HRA without the requisite statutory authorisation. The paper first examines the Hansard debate on the Henry VIII clauses as the HRA went through parliament before considering the clear line of case law on interpreting Henry VIII clauses. It then addresses the various attempts to amend Acts using s 10 HRA remedial orders. It concludes by suggesting how primary legislation could resolve the problems highlighted in this paper.
Evidence weight
Balanced mode · F 0.40 / M 0.15 / V 0.05 / R 0.40
| F · citation impact | 0.50 × 0.4 = 0.20 |
| M · momentum | 0.50 × 0.15 = 0.07 |
| V · venue signal | 0.50 × 0.05 = 0.03 |
| R · text relevance † | 0.50 × 0.4 = 0.20 |
† Text relevance is estimated at 0.50 on the detail page — for your query’s actual relevance score, open this paper from a search result.