Government plans to abolish a raft of quangos by ministerial decree will have to be completely redrawn after Lord Judge, the lord chief justice, attacked the plans as astonishing and a threat to the entire way in which the judiciary works. Lord Norton, a leading constitutional expert and Tory peer, acknowledged yesterday that Judge's criticisms make the government's plans unsustainable.
Judge mounted his considered attack in front of the Lords constitution committee on Wednesday. Labour sources in the Lords said they could not think of such an open criticism of government legislation by a serving lord chief justice, pointing out that it puts an onus on the lord chancellor, Kenneth Clarke, to act as he has a statutory responsibility to protect the independence of the judiciary.
Judge mounted his attack on the central clause of the public bodies bill, schedule 7 – empowering ministers to abolish a raft of named quangos without the need for primary legislation. The use of so-called Henry VIII clauses – from a 1539 statute that gave the king power to legislate by proclamation, without further parliamentary scrutiny – allows independent bodies to be shut through secondary legislation.
Judge said: "Schedule 7 of the public bodies bill includes a large number of institutions which are important in themselves, whose importance is important to the public, and whose independence is part and parcel of the independence which we attach to the entire way in which the judiciary works.
"The judicial appointments commission is set up on the basis that it will be an independent body, and so it should be. The criminal cases review commission is set up by legislation as an independent body, and so is the parole board and the sentencing council. There are a whole series of these bodies set up and the object is that they should remain independent of the government of the day that we happen to have."
The peers have already voted against the use of Henry VIII clauses in the public bodies bill, but ministers had planned to overturn the defeat in the Commons. But there seemed to be a view that the government will have to rethink. The lord chief justice widened his attack to deride the entire use of Henry VIII clauses by both Labour and Tory governments.
He said he was "rather horrified" to discover that something like 120 acts of parliament with Henry VIII clauses had been enacted in the 2008-9 session. "I think that is astonishing. I mean in times of war you don't have Henry VIII clauses."He pointed out that the original clauses were repealed immediately on the king's death.
A Cabinet Office spokesperson said: "It is right and proper for the bill to be debated robustly in the House of Lords and we will take on comments. It is an important bill that will restore political accountability for the decisions that affect people's lives and bring in a new age of transparency in government."
