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.