Legislation: Skeleton Bills and Delegated Powers

Lord Judge Excerpts

Thursday 6th January 2022 Lords Chamber

[Lord Judge (CB)]

I do not feel like following any of those speakers; they have said everything that I want to say. It is awfully tempting to sit down, but I should just mention one or two things.

The noble Baroness, Lady Cavendish, referred to something that I said when I was Lord Chief Justice. It was a political speech—nothing to do with party politics—and I addressed the issue of Henry VIII clauses. That was more than a decade ago. The moral of the story is that judges should not interfere in the political processes—because no one took the slightest bit of notice of what I had to say. Indeed, the response was the opposite: the departments invented a new button on their computers that said “Henry VIII” on it, and every piece of legislation since I spoke has had it pressed and Henry VIII drawn into it. So I have given the Red Bull treatment to Henry VIII and the corresponding treatment for somnolence—I do not know what the right pill is for that—so we just go on producing delegated legislation. It is more than 10 years since I spoke, and has the House of Commons rejected a single piece of delegated legislation? No. I am sure that every piece of delegated legislation that we have had has been sublimely wise, but the House of Commons has not rejected a piece of delegated legislation since 1979—1979, for heaven’s sake—when thousands and thousands of pages, in small print, are sent out to us every year, telling us all how we should live.

I go back to the time when Henry VIII was first trying to get these powers. It is an interesting story. This Parliament had given him the power to decide that he was the Pope—or the head of the Church in England—who would succeed him, that he could bring down the monasteries and that he could do anything that he liked. But the one thing that it drew the line at is something that we have been pathetic at. It said: “No, we will not give you the power to amend our statutes.” Here we are doing it 400 years later.

It is sometimes said that Thomas Cromwell fell because he introduced Anne of Cleves into Henry VIII’s bed and she could not quite arouse his—whatever you call it—interest. I must say, nobody ever asked her what she thought about him. But that is not the whole story. When I retire, I will launch a piece of research which will demonstrate that Thomas Cromwell fell because he did not produce for the king the power that the king wanted: absolute power. If he had had time—his head came off too quickly—he would have thought of skeleton Bills, guidance, protocols, and so on. However, he did not have time. However, if we turn to Henry VIII for inspiration and to Thomas Cromwell for further inspiration, we are running up a very strange path.

I have three suggestions. First, let us never ever pass legislation like Clauses 55 and 56 of the current police Bill, which enable the Secretary of State to define what the Bill means by “serious disruption” after it has been enacted. We should reject any and every Henry VIII clause until the Minister identifies the specific areas it is intended to address and then we should limit the Henry VIII power to a power to amend specific clauses in the instant Bill, not any statutory provision in any Bill past and to come. Finally, on statutory instruments, we should at least have the power to have a process to say, “We agree with 99 but number 100 we do not want.”