Lord Chief Justice on the Public Bodies Bill

Lord Norton

The Lord Chief Justice, Lord Judge, appeared before the Constitution Committee this morning.  It was a very revealing session.  Lord Judge, in a dinner for Her Majesty’s Judges at the Mansion House in July, said that “my deepest concern at the moment is directed to the increased use of what are described as Henry VIII clauses” (i.e. clauses allowing primary legislation to be changed by executive order).  The extent of their use, not least in the 2008-09 session – for which he had the figures – astonished him.  He went on “I do not regard the need for resolutions, affirmative or negative, as a sufficient protection against the increasing, apparent indifference with which this legislation comes into force.”  The proliferation of such clauses, he said, would have the inevitable consequence of yet further damaging the sovereignty of Parliament and increasing yet further the authority of the executive over the legislature.

Given his speech, it is not surprising that in this morning’s session we pursued with him the use of Henry VIII powers in the Public Bodies Bill.  When the House debated the Bill on Second Reading, the former Lord Chief Justice, Lord Woolf, had strongly criticised the Bill, not least for the inclusion in Schedule 7 (now referred to by some peers as ‘death row’) of a number of quasi-judicial bodies.   Lord Judge basically reiterated the concerns expressed by Lord Woolf.  He clearly felt their inclusion threatened the independence of the judiciary.  His comments were as robust as those of Lord Woolf. 

It is difficult to see how the bodies to which he referrred can remain in the Bill.  Indeed, it is difficult see how Schedule 7 – essentially a full-blown Henry VIII schedule – can remain in Bill.

11 comments for “Lord Chief Justice on the Public Bodies Bill

  1. Gareth Howell
    15/12/2010 at 8:16 pm

    Thanks to lord Norton and the Law lords for keeping a close watch on this question.

  2. Senex
    15/12/2010 at 8:49 pm

    Which beggars the question; if Lord Woolf’s ‘wig’ or attire had in some part been made of wool would he have been a Woolf in sheep’s clothing? Research indicates that legal wigs are made of horse hair and that they were originally used to hide the identity of the wearer? God only knows why!

    Poor old Henry VIII must be turning in his grave with all this bad press. Parliament at this time was on ‘perpetual’ holiday, that is, it sat infrequently because to do so was to hold the King to account.

    This gave rise to the question of governance in Parliaments absence. An act of Parliament was reluctantly put in place to allow the King to act by proclamation at such interludes. However, holding the King to account through the courts proved trying and the act was later repealed.

    Henry’s father saw Parliament sit even less frequently and he is known to have amended acts of Parliament by changing the actual wording as required by circumstances. Henry VIII in this respect played by the rules and was in no way the villain he is being portrayed as.

    Commons use of Henry VIII clauses suggests an absence that justifies their use. Is the Commons planning to prorogue Parliament at key moments so that it cannot be held to account?

    Ref: Legal Attire: Buying a Wig

  3. Gareth Howell
    16/12/2010 at 10:03 am

    “increasing yet further the authority of the executive over the legislature.”

    It is parliament which enacts the clauses, so it is self defeating.

    The Public bodies bill is to take in a number of Quangoes and to abolish a number of others.

    Schedule 7 was incomprehensible in any case.

    Lord Chief Justice Judge may merely have been astonished at the number of Acts which do have such clauses; that when a bill is nearly through to Statute, they realize the extent of need for daily administration of it.

    In future, as before Thatcher, the clauses will only be administered by the department, employing however many are needed for the purpose.

    “clauses allowing primary legislation to be changed by executive order”

    will continue to be passed, in the interest of saving parliamentary time.

    The warning to parliamentarians is to be constantly wary of passing bills that have such clauses in them.

    Bringing Public bodies back in to the control of the government department Executive is
    the effect of these clauses written far too large over the last 25 years.

  4. Croft
    16/12/2010 at 12:55 pm

    I’m not sure how being persuaded how to act by the judiciary rather than their manifesto enhances the sovereignty of parliament. Nor for that matter do I remember cries of anguish from the judiciary when the ECHR was passed about the threat to the sovereignty of parliament. Debating the relative merits of legislation and the sovereignty of parliament was I thought called politics enforcing it was for the apolitical judiciary.

  5. Twm O'r Nant
    17/12/2010 at 5:35 pm

    Furthermore we now have a population of 60m and not 50m, so more legislation is surely in proportion?

    Law lords have every bit as much right to make political comments as anybody else, surely?!

  6. Lord Blagger
    17/12/2010 at 9:09 pm

    Furthermore we now have a population of 60m and not 50m, so more legislation is surely in proportion?


    As a mature democracy, the need for new legislation goes down. The need for more and more legislation just shows how wrong the law makers are, and incompetent at their jobs.

    You would have thought that after 300 years, they would have got it right.

  7. Lord Blagger
    17/12/2010 at 9:11 pm

    A better name than Henry VIII clauses, is an Ermächtigungsgesetz act. Try a wiki.


    Trivia of the Day

    Henry VIII had an ancestor of mine executed for beign where he shouldn’t have been. Namely in Catherine Howard.

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