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.