Lord Judge LCJ gave an interesting and important speech at The Mansion House on Tuesday 13th July. I extract from and comment on it in some detail below.
It is an excellent speech and you may read it in full here
Judges apply and interpret our laws, dispense justice and resolve disputes is the traditional brief, but over simplified, explanation of the work of the judiciary. The judiciary does not make law; that is the preserve of Parliament. It is, given that we have a common law system, not as simple as that. The judiciary has, of course, developed our common law and, where gaps (lacunae used to be the technical term pre Woolf) exist their interpretation of existing law inevitably creates new law. The function of Parliament is to create new law; the legislature to be supreme over the executive. Lord Judge’s speech is interesting in two particular respects (a) It is a subtle statement about our way of life; the type of country we wish to live in – not, usually the remit of judicial speeches and (b) a ‘warning’ to the executive not to allow the present economic circumstances to so damage the justice system as to make it unjust and is also a warning to ministers not to act in the manner of Henry VIII – a ‘dangerous tyrant’.
Lord Judge begins his speech with an amusing statement about the proliferation of law and tells the Lord Mayor that not only he, but 50 of his predecessors also have been in breach of the law for 50 years. Lord Judge also admits to being in breach of the same law.
It is with the most profound regret, that I have discovered that for just about the last 50 years, you and every single one of your predecessors has been in breach of the Calendar Act 1751. By the terms of this Act the admission and swearing in of the Mayor of London must take place on the 8th November annually.You and your last 50 or so predecessors complied with the City of London (Various Powers) 1959 section 5(1) of which provided that you should be sworn in on the second Saturday of November. What gave any of you the idea that a 1959 Act which did not amend the 1751 Act, or repeal it, could be overlooked?
Lord Judge makes the point that we have many loose threads in our law and in doing so lays the foundation for a brief discussion of The Great repeal Act being put together by the deputy prime minister, Nick Clegg, which he returns to later in his speech.
Lord Judge does ask the question: “Which, I wonder of the 2492 – yes 2492 laws – introduced during 2009, an increase of 16% on 2008, will still be in force 700 years from now.”… and wonders how we will be able to enforce (and try) the Nuclear Explosions (Prohibition and Inspections) Act 1998 should anyone have caused or conspired to cause same.
To the shame of Labour, the last Labour governments of 13 years put together an apparatus of control, intervention, surveillance and regulation more suited to an imaginary (and not so imaginary) Eastern European police state. This was done in the name of counter-terrorism; but those same powers were misused disgracefully and to little practical effect by council officers, police, police community support officers and a raft of other unelected, unaccountable, officials.
It is quite remarkable to me, having voted Labour for 30 years (I shall not be doing so again until Labour returns to being the party for fair and free society), that a Conservative home secretary, Theresa May, recanting her formerly anti-gay sentiments, is leading the charge to roll back the authoritarian state. Full marks to her for doing it and for the controlled, thoughtful and measured way she is doing it. She has appointed Lord MacDonald QC, a former DPP, a man of known reason and liberal ethic, to oversee the terror legislation review. While she has put forward proposals to extend the current 28 days detention without trial, she has made it clear that her preference is for 14 days and that this extension is only for six months to enable the terror legislation to be reviewed properly.
The concern of the judiciary
Lord Judge states: “I am, I suspect, not the only member of the judiciary who is troubled by the extent of the powers granted to council officials to enter people’s homes without a warrant. Or the way in which apparently sensible powers – directed to the prevention of terrorism, appear on occasions to be used to control activities which by no stretch of the imagination, have anything to do with terrorism.
But my deepest concern at the moment is directed to the increased use of what are described as Henry VIII clauses. Henry VIII was a dangerous tyrant. The Reformation Parliament made him Supreme Head of the Church, the representative of the Almighty on earth – hardly an encouragement to humility: it altered the succession at his will: it changed the religion backwards and forwards, at his will: they were a malleable manageable lot. And there is a public belief that the Statute of Proclamations of 1539 was the ultimate in supineness. The Act itself was repealed within less than 10 years, immediately after his death in 1547. But it had allowed the King’s proclamations to have the same force as Acts of Parliament. That is a Henry VIII clause. It is perhaps worth emphasising, however, that this Act, and the supine Reformation Parliament was not persuaded to agree that proclamations alone could prejudice any inheritance, office, liberty, goods chattels or life. It was expressly subject to those limitations.
There is an important principle at stake and it is that Parliament should make law – both houses – and not individuals within the executive. The legislature should be supreme over the executive.
Lord judge then goes on to make a quite remarkable statement…
But do we remember the Legislative and Regulatory Reform Bill of 2006 which, said to be productive of a reduction of red tape, sought to give ministers power to amend, repeal or replace any act of Parliament simply by making an Order. The proposal would have given Ministers of the Crown executive powers of a most extraordinary kind. It was eventually withdrawn when the House of Lords Constitution Committee alerted itself or was alerted to the implications of this provision. So can we sit back and relax. That’s that, then. But it is not.
Consider the Banking (Special Provisions) Act 2008 enacted in the hurricane of the banking crisis. It granted the Treasury, presumably the Prime Minister and First Lord of the Treasury, the power to make:
“(a) such supplementary, incidental or consequential provision, or (b) such transitory, transitional or saving provision, as they consider appropriate for
the general purposes, or any particular purposes, of this Act…” But the power goes further. It expressly provided that an order may
“(a) disapply (to such extent as is specified) any specified statutory rule of law;
(b) provide for any specified statutory provision to apply (whether or not it would otherwise apply) with specified modification.”
So we have an Act of Parliament which expressly grants to the Treasury power to disapply any other relevant statute bearing on the provisions of the 2008 Act or indeed any rule of law.
The same process is at work with section 51 of the Constitutional Reform and Governance Act 2010. This enables any Minister of the Crown, by order to make such provision as he or she considers appropriate in relation to any provision of the Act. The Act, as it says, relates to our constitutional affairs. The order may:
“(a) amend, repeal or revoke any existing statutory provision,
(b) include supplementary, incidental, transitional, transitory or saving provision.” So the new constitutional arrangements can be revisited by ministerial order, directed not merely to amendment repeal or revocation of any provisions in the Act itself, but directed at any of our existing statutory provisions.
My Lord Mayor this is a matter of great seriousness.
Lord Judge notes: “So we are talking of over 120 Henry VIII clauses in one parliamentary session. Does this surprise you? It certainly astonishes me.”
I agree with Lord Judge’s point that the argument that we need powers is fallacious.
Lord Judge deals with this : “You can be sure that when these Henry VIII clauses are introduced they will always be said to be necessary. But why are we allowing ourselves to get into the habit of Henry VIII clauses? Why should we? By allowing them become a habit, we are already in great danger of becoming indifferent to them, and to the fact that they are being enacted on our behalf.
I do not regard the need for affirmative or negative resolutions as a sufficient protection against the increasing apparent indifference with which this legislation comes into force. To the argument that a resolution is needed, my response is, wait until the need arises, and go to Parliament and get the legislation through, if you can. I continue to find the possibility, even the remote possibility, that the Treasury may by order disapply any rule of law, or a Minister may change our constitutional arrangements, to be rather alarming.
…..”When the Great Repeal Act is under consideration, I do urge that somehow, somewhere, Henry VIII clauses and indeed, the modern clause which in reality is Henry VIII Plus clauses should be excluded from the lexicon, unless the Minister coming to the House says in express and unequivocal language that he or she is seeking the consent of the House to such a clause, so that, quite apart from the members of Parliament themselves, the wider public may be informed of what it is proposed should be enacted on its behalf
Half a moment’s thought will demonstrate that proliferation of clauses like these will have the inevitable consequence of yet further damaging the sovereignty of Parliament and increasing yet further the authority of the executive over the legislature.
Administration of Justice
Lord Judge stated that judges accepted the ‘practical realities’ of financial constraints and suggested a number of reforms to the justice system:
(a) Whether disputes involving children should be dealt with by the adversarial method
(b) Whether criminal trials should, as with civil trials, be subject to strict timetables to cut costs.
(c) Although the judiciary has absolutely no control over the Legal Aid arrangements, can we at least ask the question whether these arrangements themselves are counter-productive to an efficient trial system, and observe that, as it seems to some of us, the best rewards are not necessarily received by the most efficient practitioners?
Our way of life
David Davis MP, a former shadow home secretary, had a fascinating article in The Times today – revealing a very different conservative party if his views are shared by a significant number of his colleagues on the moderate wing of the Conservative party. Sadly, The Times has disappeared from public view – save for those who wish to pay, so I can’t give you the link. Perhaps politicians might like to consider giving interviews to The Guardian, Telegraph and Independent in future so those who don’t buy The Times in hard or online copy can actually read of their views?
As I share his remarkably ‘liberal’ views (as expressed in the article) I am happy to summarise in my own words the gist of what David Davis was saying – at least as to the main themes.
Davis starts by saying that the centrepiece of the new Coalition is the focus on defending liberty of the individual and the the integrity of the judiciary. We shall see if the latter is achieved. Judges can only operate, after all, within an apparatus which is properly funded and works.
As to the former – Davis makes the point that theLabour government set up an authoritarian regime of counter terrorism that didn’t actually work and which ended up being abused. Secret courts have been overruled many times; control orders have been too draconian and didn’t seem to work – we lost seven suspects – ‘probably the most dangerous ones’. The serial abuse of stop and search powers by police has been checked by the European Court and will, inevitably form part of the counter-terror law review. Alleged British complicity in torture is being investigated by an inquiry chaired by former high court judge Sir Peter Gibson. Detention without trial – which Labour wanted extended to 90 days – may well come down from 28 to 14 days. Other nations make do with far less. The United States allows 2 days. Australia, our closest comparator, is likely to reduce from 12 to 4 days. S.44 stop and search is already being controlled and, hopefully, will be removed or heavily proscribed in the review. Councils should have all powers granted by Labour under RIPA removed or at the very least their abuse controlled and penalised.
Hopefully, Police – who obviously will ‘wish to be heard’ – will just have to accept that it is not possible ever to provide complete safety (which they admit) and that our nation would be better off not cowering under the weight of oppressive police powers and we take an element of risk. The powers don’t seem to work. I suspect that security service and police work of a far more focused kind – as opposed to 150,000 + searches resulting in a handful of prosecutions – is the area we should focus our laws and resources. We are told that good security service and police work has contained terror threats so far. This has not been achieved by 150,000 random stop and searches and interfering with tourists taking photographs. Nor has it been achieved by PCSOs and officious council officers abusing their powers. Terrorists, presumably, are not daft enough to take photographs when Google aerial and street view is widely available?
We have let the terrorists ‘win’ to some extent by subjecting ourselves, through the last Labour administration, to this raft of oppressive law. Perhaps we should free ourselves, consider our foreign policy in Afghanistan, defend our shores, build bridges with countries other than America and our traditional allies and, if we are attacked, let parliament then decide what laws are necessary? At least it will be public and at least a modern day minister with a taste for Henry VIII will not be depriving us of laws we thought were once there or making new laws we didn’t see publicly reviewed in parliament.
Let us hope that Mr Clegg’s Great Repeal Act does, indeed, roll back the state, unnecessary and oppresive law and that Theresa May and her advisers put the clock back in terms of law and apply resources to detection. At the risk of causing my Labour friends to gasp with astonishment – I rather like what the Coalition government is doing on this…so far.