Lord Chief Justice: Government has too much power to pass new laws [updated]

15 July 2010 by Adam Wagner

The Lord Chief Justice has lamented the ease with which new laws can be passed without proper scrutiny, comparing new powers to those which were imposed by England’s worst tyrant.

Lord Judge, who is the Lord Chief Justice and head of the judiciary, was speaking at the annual Lord Mayor’s dinner for the judiciary; his speech can be read here.

The thrust of the judge’s speech was his concern at the proliferation of what he called “Henry VIII” clauses, the proliferation of which had “astonished” him. Henry VIII’s 1539 Statute of Proclamations allowed the King’s proclamations to have the same force as Acts of Parliament. Lord Judge compared this to a series of recent Acts which have given the Government licence to enact law without the scrutiny of Parliament.

Henry VIII clauses

He singled out the Banking (Special Provisions) Act 2008, which grants to the Treasury power to disapply any other relevant statute bearing on the provisions of the 2008 Act or indeed any rule of law. Similar powers have also been granted by section 51 of the Constitutional Reform and Governance Act 2010.

He said:

I am, I suspect, not the only member of the judiciary who is troubled by the extent of the powers granted to council officials to enter people’s homes without a warrant. Or the way in which apparently sensible powers – directed to the prevention of terrorism, appear on occasions to be used to control activities which by no stretch of the imagination, have anything to do with terrorism. But my deepest concern at the moment is directed to the increased use of what are described as Henry VIII clauses.

Having tried to investigate how these powers had in fact been utilised, he found that although statistics were not routinely collected, there had been at least 120 Henry VIII clauses in the last Parliamentary session. This “astonished” him.

He went on to say that powers granted to make laws when “necessary”, or in the case of emergencies, are likely to be abused in future:

You can be sure that when these Henry VIII clauses are introduced they will always be said to be necessary. But why are we allowing ourselves to get into the habit of Henry VIII clauses? Why should we? By allowing them become a habit, we are already in great danger of becoming indifferent to them, and to the fact that they are being enacted on our behalf.

He concluded by imploring the Government to include the “pernicious” Henry VIII clauses in the promised Great Repeal Act or risk the “inevitable consequence of yet further damaging the sovereignty of Parliament and increasing yet further the authority of the executive over the legislature”.

Separation of powers?

This is strong stuff, particularly coming from the sitting head of the Judiciary, who in theory at least is not supposed to influence the political process. It does, however, highlight a recent trend within the senior judiciary to use public speeches to air their bugbears: see the Master of the Rolls’ lament on the power of the European Court of Human Rights, Baroness Hale’s concerns that the Human Rights Act has been hampered by constitutional wrangling, and the head of the Supreme Court’s view that the Human Rights Act helps fight terrorism.

Lord Judge’s speech is the most direct assault yet (outside of the courts, at least) from the judiciary on current law, although admittedly not on law which was enacted by the current Government. The apparent failure of Parliamentary scrutiny he highlights may even leave clauses enacted using the powers vulnerable to irrationality challenges in the courts.

It would be interesting to speculate how such comments would be received in the United States, where the separation of powers between the Judiciary and Executive are clearly defined and more jealously guarded.

Update 15/07/10: Joshua Rozenberg writes in the Guardian about the Justice Secretary’s response to the speech (he was at the dinner too): “There were other signs of friendship: the lord chancellor said that he had not even been as bruised by judicial review as some of his colleagues. “Nevertheless,” he continued, “I know I speak for all members of the government when I say to you – be gentle with us.””