We need to talk about Ken – in particular the UK Lord Chancellor, Kenneth Clarke’s dangerous delusion that he has – or should have – Henry the Eighth powers.
As it happens, Clarke would make a rather good Henry VIII. Imagine Good King Hal as a bluff genial figure in the Carry On Henry mould, like the cigar-chomping Sid James, or perhaps with a bit of edge to him, something a little more like the Charles Laughton version – jovial but ruthlessness. Imagine, too, a man who by his proclamations can sweep away whole areas of constitutional law.
For this is what Clarke intends in his (as yet putative) Constitutional Reform (Reform) Act 2012 – the Act he is working up to “reform” the 2005 Constitutional Reform Act. This, for the first time in our history, enshrined separation of powers in our constitution – that the judiciary should be independent from the Executive and from Parliament.
Not only does Clarke want to undo the Act’s work, which made the appointment of judges wholly independent from the political input of the Lord Chancellor (apart from a very limited veto power), he also wants to add a “Henry VIII clause” to give himself and his successors powers to change whole chunks of the Act at will, without the full legislative procedure of Parliament. Thus his Ministry of Justice consultation paper, Appointments and Diversity: A Judiciary for the 21st Century proposes to “take all those provisions currently detailed within the Constitutional Reform Act (Part 3, sections 26 to 31 for UK Supreme Court appointments and Part 4, Chapter 2 for other judicial appointments) off the face of primary legislation. Such change would be replaced by secondary legislation and guidance that would be subject to the affirmative procedure and agreement between the Lord Chancellor and Lord Chief Justice and, in relation to Supreme Court appointments, the President of the UK Supreme Court.”
This is a proposal for a Henry VIII clause of the purest kind. There is some confusion in people’s minds, not least in Clarke’s, about what exactly Henry VIII powers are. They are not mere secondary legislation, the run-of-the-mill largely administrative regulations and statutory instruments that parliamentary Acts may allow ministers to issue. These usually simply let ministers top and tail the broad intentions of the substantive Act, giving them powers to make decisions or issue rules within the framework of the Act. There are hundreds, maybe more than 1,000, each year and it would be impossible for each to go through full parliamentary scrutiny. Occasionally they can be controversial, mostly they are not.
Henry VIII clauses are something far more insidious. Here a parliamentary Act allows a minister to amend the Act itself or even to repeal it if he considers it necessary to do so. For example the Civil Contingencies Act 2004 s 20 (2) allows senior ministers to pass emergency regulations if they consider it urgently necessary to do so, including making “provision of any kind that could be made by Act of Parliament ” (s.22 (3)). This is eerily similar to the wording of the original 1539 Act that is regarded as the origin of the term “Henry VIII powers”, the Statute of Proclamations, which declared that proclamations made by Henry VIII “shall be obeyed, observed and kept as though they were made by Act of Parliament”. The reason for such an Act was that things happen “many times which do require speedy remedies, and that by abiding [waiting] for a Parliament in the meantime might happen great prejudice to ensue to the realm”. This isn’t quite Ken Clarke’s view. He simply sees Parliament as a bit of annnoyance.
Parliament has been very timorous towards the Executive and has steadily allowed all its powers to be eroded and has allowed the institution to be turned into a bit of a sausage machine – Ken Clarke
At a meeting of the House of Lords Constitution Committee on 19 January 2011 he acknowledged that “most parliamentarians do not like Henry VIII clauses and people have been denouncing them for years”. He said he largely agreed with the criticism and hoped to “minimise their use”, but added: “There are occasions when decisions have to be taken that will take years if you have to set out every detail in a Bill. That is why – it is not for any sinister reason – successive governments have brought forward these proposals.” He complained that Parliament had a habit of holding up the Government’s programme “because there is some row going on at some stage and it makes it more difficult to go through the whole process”.
He said all this almost in the same breath as saying: “Parliament has been very timorous towards the Executive and has steadily allowed all its powers to be eroded and has allowed the institution to be turned into a bit of a sausage machine.” One assumes that is a criticism of Parliament – but perhaps not, in light of Ken’s Henrician delusion. Perhaps it is simply gracious and grateful acknowledgement of Parliament’s due deference to the requirements of the Executive.
At any rate, only a month before, the Lord Chief Justice, Lord Judge, had been rather less sanguine about Henry the Eighth clauses, telling the same committee: “I was rather horrified to discover that something like 120 bills with Henry VIII clauses had been enacted in the Session of 2008-9. That is astonishing. In times of war, you do not have Henry VIII clauses. Henry VIII’s power itself only lasted about seven years; I think that [Statute] was removed immediately on his death and that was supposed to be the end of it.”
So what exactly is the Ministry of Justice consultation paper suggesting should be taken “off the face of primary legislation” and handed over to Clarke’s royal whim? Start with section 26-31: it’s all about selecting the senior members of the UK Supreme Court, done formerly by the Lord Chancellor, now by a panel independent of the Government, and under Clarke’s proposals, by a bigger panel which would include him or his successors as an esteemed member. But if that doesn’t come up with the right results he can exercise his Henry the Eighth powers and change the Act and so change the system.
Part 4 of Chapter 2 will also come under his Henry the Eighth powers. This is a huge wodge of provisions, section 63 to 107, starting with “judges shall be appointed solely on merit” (discussed here) and encouraging diversity. Taking it off the face of the primary legislation would allow the Lord Chancellor to change the procedures of the Judicial Appointments Committee, currently independent of government (Clarke is on record as saying it is a slow and expensive body); change his own modest powers of veto – perhaps to abolish them? Or perhaps to beef them up. And change the way the less elevated judicial figures are appointed.
The “affirmative procedure” mentioned in the consultation document involves fast-tracking legislation by having the Joint Committee on Statutory Instruments look at it within 20 days (so there is some, albeit limited, debate but amendment is not allowed) and having it speedily affirmed by both Houses of Parliament.
An attempt was made by the Constitution Committee chair Baroness Jay during its latest January 2012 meeting with Clarke to question him about potential Henry VIII clauses in his intended new Bill. Unfortunately he scuttled off to some more important business before the question could be put, leaving Lord McNally, his Justice Minister, to field it. Jay noted that according to the proposals “you hope you might be using more secondary legislation in respect of judicial appointments” and asked: “What aspect you regard as of sufficient constitutional importance not to be included in that. Obviously from our point of view, if there were a lot of Henry VIII clauses around these kinds of issues, it wouldn’t be regarded with much enthusiasm by this committee.”
Lord McNally replied: “I think I am reasonably confident in his absence that the Secretary of State would be totally against using Henry the Eighth powers in this exercise.” Baroness Jay called this “a very clear steer” and seemed happy to take it on trust.
Let us hope she was right to do so. Meanwhile the message must be: Carry on Ken – but drop the Henry VIII act.
All the Constitution Committee’s sessions have been reported on Alrich’s Weblog. The final session with Ken Clarke is reported here and you can follow the links back to the first.
The House of Lords Delegated Powers and Regulatory Reform Committee is mildly critical of the Crime and Courts Bill proposals for turning legislated powers into delegated Henry VIII powers, saying “It is for the House as a whole to decide whether, as a matter of policy, the reasons given by the Government justify the change.” Report here