Government and Parliament

Lord Judge Excerpts

Thursday 9th June 2016 Lords Chamber

[Lord Judge (CB)]

My Lords, I wonder how much longer we can go on talking about these issues. I have read report after report; they are all very clear and unequivocal. We are having another discussion today—I entirely agree with the noble Baroness, Lady Smith of Basildon—and we can have some more talking. However, the question is: when are we going to actually achieve something before our constitutional arrangements disappear into some vague unknown future?

I want to address one issue today, because there is not time to address everything else—it is one I have raised with your Lordships before, and some noble Lords, at any rate, patiently listened to me. Why on earth do we in this House agree to Henry VIII clauses? Why do we? It is our responsibility, too. You can hardly say about a Henry VIII clause, “Ah, well, this has been very carefully considered in the Commons. They have scrutinised it and come to the conclusion that this is an appropriate way to serve the public interest, and therefore we should hold back”. The whole point about Henry VIII clauses is that there is no scrutiny. They are created not for immediate effect but to allow for future effect. So there is no scrutiny of them. Why do we all agree to them?

I am quite sure it will be said—perhaps today by the Leader of the House, but certainly by somebody—“Ah, you are very new here. Don’t you realise that Henry VIII clauses have been going on for years and years?”. The short answer is that I am new here and Henry VIII clauses have been going on for years and years, but they are going on more and more, and more and more rapidly. We are becoming so used to them that we are not even appreciating what they stand for. They stand for dispensing with, or suspending, an Act of Parliament by ministerial decision. That simply will not do. The function of Parliament is historically, and stemmed from, the need to control the king—now the Executive. That is one of the functions of both Houses. The Executive nowadays—I am not making a comment about this particular Executive, the last one, the one before or the one before that—hate to be told no, so the Executive say, and imply, and occasionally say enough to make it clear that this is what they think, that the function of Parliament is to do what the Executive wish it to do. But that is not our function, and never has been. If we allow this to go on, it is what it will become.

I mentioned the Childcare Act on a previous occasion. We have agreed to give power to a Minister by delegated legislation—secondary legislation—to give somebody, anybody the Minister may choose 20 years from now, the power to dispense with a statute: any statute, one that exists now or one that will exist 10 years from now. Why on earth did we do it, and to what advantage? Why was it needed for government business? It was not; it cannot have been. If the business required the Government to act now, the provision could have been clearly set out. Let us consider the wonderful Bus Services Bill. I ask noble Lords to please read it. They will find in Clause 22 a wonderful general Henry VIII power. What is that for? The Children and Social Work Bill to which the noble Baroness, Lady Smith, referred is more complex. Its provisions include that a hybrid instrument is to proceed through the legislative process as if it,

“were not a hybrid instrument”.

What on earth is that for? Guess how many Henry VIII powers it has? I tired after Clause 35, Clause 39, Clause 42 and Clause 43. They are all Henry VIII powers. It is a confetti of Henry VIII powers. Why will we enact them? Why will we agree? Incidentally, the Bill also proposes in Clause 34 that a Minister may create a criminal offence.

I find the idea that secondary legislation can dispense with, or suspend, primary legislation to be a constitutional—I must be very careful how I put this; shall we say—shambles. That is what it is. I am not asking a rhetorical question when I say: why should Parliament—both Houses—dish out powers to a future Executive of any political colour, elected by a view of the country that is taken at a particular time, to dispense with a statute? We do not know what lies ahead. We must not sit back and say, “This is England, Ireland, Scotland and Wales; we are all very civilised. We will never end up with the sort of Government who might misuse their autocratic powers”. Well, we might. Democracy works in funny ways. Austria came very close very recently. One must not ignore these things.

I do not want to go on too long and will say just this. After all the discussion we have had today and have had so far, all the further inquiries, additional papers and the examination of the interests, why cannot we in this House ask this simple question: why should we ever pass Henry VIII clauses?

Strathclyde Review

Lord Judge Excerpts

Wednesday 13th January 2016 Lords Chamber

[Lord Judge (CB)]

My Lords, I had a very bad night’s sleep last night. I had a nightmare in which King Henry VIII came to visit me. The monstrous tyrant had been allowed out of hell—I assure you, that is where he is—for a few weeks to read all those wonderful books by Philippa Gregory, Alison Weir and Suzannah Dunn, all of whom give his long-suffering wives rather a good press and a very bad press to him. He was so offended by it that he started looking into what we were talking about. He said, “There’s a piece of history none of you knows. You have all these wonderful books about why I cut off Thomas Cromwell’s head, but I’ll tell you the truth about it. I said to him, ‘I want the Reformation Parliament to give me an Act of proclamations’, and he said he’d get it for me. I said, ‘I want the widest powers to regulate Tudor life. A good regulatory system would really organise Tudor life better’. ‘Yes, Your Majesty.’ Unfortunately, he couldn’t get Parliament to give me control over—let me just think—inheritance, goods, chattels, liberty and all the things I really did want to control. So I had his head cut off”.

The nightmare was this: we have too many Henry VIII clauses, and we call them Henry VIII clauses because they are draconian and potentially tyrannical. Many of them come to us by way of subordinate or secondary legislation and, although we have to consider many different aspects of this debate, I want to focus on this: this debate could actually be about secondary legislation and the primacy of Parliament, because our processes—in both the House of Commons and this House—have led to a situation in which legislation is enacted which creates the most awesome powers.

Let me give you an example. I thank the noble Lord, Lord Darling, for his speech, and remind him that there was a time in 2008 when life was rather tough, so we had the Banking (Special Provisions) Act 2008. I take this example not to embarrass him—his maiden speech was absolutely delightful and wonderful—but to make the point that we are talking about all Governments. The focus is on what happened in October, when we had a Conservative Government, but it is true of all Governments and always will be unless we do something about it. The Act gave all sorts of powers to the Minister and the Treasury, including to,

“disapply … any … statutory provision or rule of law”.

Any statutory provision or rule of law? What on earth was going on there?

Let us not get too carried away with the rather important disaster that was going on. The Childcare Bill was debated here in October 2015. Who could argue with free childcare? Who could argue with regulations made for “extended entitlement”? Then you see that extended entitlement regulations may cover no fewer than 11 different subjects, including the power to “impose obligations”—notice—

“or confer powers on the Commissioners for Her Majesty’s Revenue and Customs”.

Another power that Henry VIII would not have got is to,

“create criminal offences in connection with”,

so-and-so, for which another part of the statute said that you might go to prison for two years. Another is to make reviews of a First-tier Tribunal decision—that is interfering with a court’s decision—and another is to make provision in regulation for people to be fined. Not content with no less than 11 areas where secondary legislation could be enacted, we end up with Section 4 on “Supplementary provision”, on which I will now focus. It states:

“Regulations may—

(a) confer a discretion on any person”—

any person—

“(b) make different provision for different purposes”—

well, I cannot argue about that—

“(c) make consequential, incidental, supplemental, transitional or saving provision”—

who could argue with that? Until you come to—

“(d) amend, repeal or revoke any provision made by or under an Act (whenever passed or made)”.

You know, there was a revolution here in 1688. We ended up with a Bill of Rights that made it clear that there was no dispensing or suspending power. And here we have statutory instruments capable of destroying an enactment by both Houses. So we have an interest in anything which interferes with what we have agreed to in the legislative process, do we not?

I am nearly done. I could go on. Let us take another one. We looked the other day on the education Bill at what failing schools might be. What do we provide? “Failing school”, two perfectly ordinary English words—we all understand what they mean. But there will be regulations, not for the Secretary of State to say, “You are a failing school, and for these reasons”—somebody has to decide that; I have no objection to somebody deciding it—but saying, “You, the Secretary of State, will define what a failing school is”. That is very different. That is saying, “I am the Secretary of State. I say that you are failing because I do not like this, that or the other about what is going on”.

I have done. We have to examine this problem, which has arisen from a parliamentary dispute in this House, in the context of the primacy of Parliament, so that we take a proper overall look at what we are being asked to do when we legislate.

English Votes for English Laws

Lord Judge Excerpts

Thursday 16th July 2015 Lords Chamber

[Lord Judge (CB)]

My Lords, this document with a very long title could just as easily be called, “Future Processes of the Sovereign Parliament”. This House is part of that sovereign Parliament. If this is not our business, what on earth is?

I simply adopt what my noble friend Lord Lisvane said, because there is no time to go into it further. But we should also be very alert to the possibility that, as we shimmer and shilly-shally through this process—disgracefully if we do, but as we look as though we might—we could end up with a constitutional aberration of the Speaker of the House of Commons finding himself the subject of litigation. That would destroy our constitutional arrangements.