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?