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Great Repeal Bill Brexit row: Keep Henry VIII’s name out of it

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One wonders whether the outrage over the “Great Repeal Bill” has been a little overdone. The White Paper explaining how the UK Government will handle all the mass of EU legislation that needs to remain in place after Brexit notes that much of it, while remaining in force, will need “correcting” by delegated legislation – powers given to ministers by Parliament. 

The White Paper explains that this correcting will simply be to ensure the laws, all of which will be transposed into UK law, can continue to operate rather than become ineffective upon repeal of the European Communities Act 1979. Critics fear the Government will go further than this and use delegated legislation, or “Henry VIII powers”, to actually change or abolish laws and rights derived from the EU.     

But this post is more concerned about whether the respectable name of King Henry has been blackened by being dragged into this sordid modern row. “Henry VIII powers” are quite often included in parliamentary legislation (increasingly and controversially of late) to allow a minister to later change the statute by issuing a statutory instrument. 

The name (or nickname, really) of the powers has been mistakenly taken rather literally by some parts of the media with suggestions that the powers, legitimately given by a democratically elected Parliament, are actually derived from the despotic Henry VIII himself, that the Government has dredged up some arcane pre-democratic power and is about to swing Henry VIII’s very own axe to abolish EU law. Thus the Evening Standard: “Ministers defended so-called Henry VIII clauses dating back to 1539”. CNN took a similar line: “The British government wants to invoke controversial powers that date back 500 years to the time of King Henry VIII.” The Independent called them “ancient powers”. This is simply untrue.

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Lady Neuberger condemns Constitutional Reform Act 2005 amendments in Crime and Courts Bill 2012

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Lady Neuberger has described as “a disgrace” the plans to put the Secretary of State for Justice on the commission appointing the President of the UK Supreme Court and the Lord Chief Justice.

Placing a government representative on the panel would breach the constitutional division of powers between the political executive and the judiciary, she said (reported here). She joins the chair of the Lords Constitution Committee, Baroness Jay, in criticising the plan set out in the Crime and Courts Bill 2012.

The Bill has important amendments to Britain’s Constitutional Reform Act 2005 that reduce the independence from the Government of judicial appointments in various ways.

In particular the Secretary of State for Justice (aka Lord Chancellor) is to sit on the appointment commission for the President of the Supreme Court (while the sitting president himself would be removed) and on the appointment commission for the Lord Chief Justice; there is to be a new requirement that he be consulted on other senior judicial appointments; whole sections of the 2005 Act on judicial appointments procedure are to be removed; powers to decide how to replace those sections are given to the Secretary of State; as are powers to decide the make-up of the Judicial Appointments Commission (with a view to increasing the proportion of lay members compared with judicial members); the Secretary of State will have the power to repeal or amend those sections.

It is intended that the 12 Supreme Court justices should become a “maximum” of 12 (or full-time equivalents) with the Secretary of State deciding exactly what number is required.

There are also amendments intended to increase diversity such as provision for part-time judicial posts and a “tipping point” provision whereby diversity requirements can come into play if two judicial candidates are deemed of equal merit.

According to the Home Office publicity the bill will “reform the judicial appointments process to promote greater transparency and improve judicial diversity”.

What it nowhere mentions is that it will bring the Lord Chancellor into a direct role in appointing the President of the Supreme Court and Lord Chief Justice. The ancient title of Lord Chancellor, once the highest judicial figure in the land and ranking after princes of the blood and the Archbishop of Canterbury, now hides the face of a purely political ministerial appointee, the Secretary of State for Justice, currently Kenneth Clarke. So the result (and intention) of the legislation is to gain a political handle on judicial appointments, taken away from the political realm by the 2005 Constitutional Reform Act.

The public statement (see below) makes no mention of this. Nor does it mention that in future the Lord Chancellor will be given powers to change the judicial appointments procedure at will (with minimal and passive oversight by Parliament).

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Ken Clarke gets his Henry VIII clause into judicial appointments

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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.

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Ken Clarke defends plans for government role in judicial appointments

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The Lord Chancellor, Kenneth Clarke, has defended his proposals to give the government a bigger role in appointing senior judges, saying it would help in the important relationship between the executive and the judiciary.

Speaking at the 12th hearing of the House of Lords constitution committee into judicial appointments, he said: “I am in favour of no political patronage in appointments,” adding that his consultation paper, published late last year, makes it clear the Lord Chancellor would not take a direct role. “But with the [appointment of the] Lord Chief Justice and the President of the Supreme Court, there should be greater involvement of the Lord Chancellor because the executive should have more influence in that, but not a decisive one.”

The proposal is for the Lord Chancellor (now Secretary of State for Justice, Clarkes’s preferred title, he revealed) should sit on the panels appointing the two senior roles.

He said: “The one absolutely immoveable thing is that we appoint on merit … The second thing that I regard as absolutely immutable is the independence of the judiciary. No suspicion of political patronage should come back.” He added: “We now have a system that makes it absolutely clear that it is independent of the political sphere.”

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