Law in Action



Law in Action

He singled out the Banking (Special Provisions) Act 2008, which empowers the Treasury to disregard any other relevant statute bearing on the provisions of the 2008 Act or indeed any legal rule. Similar powers have also been granted by section 51 of the Constitutional Reform and Governance Act 2010.

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is a public belief that the Statute of Proclamations of 1539 was the ultimate in supineness.[1] The Act itself was repealed within less than 10 years, immediately after his death in 1547.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.

He said:

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.[2]

Having tried to investigate how these powers had in fact been used, he found that there had been at least 120 Henry VIII clauses in the last Parliamentary session. This "astonished" him.

He went on to argue that powers granted to make laws in this fashion when "necessary", or in the case of emergencies, are subject to abuse in the future:[3]

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.

Traditionally English judges - like Canadian judges - steered well clear of the political process. But top judges in England are speaking out in ways that are frankly extraordinary: see the Master of the Rolls' attack on the power of the European Court of Human Rights,Baroness Hale's concerns that the Human Rights Act has been hampered by constitutional disputes, and the head of the Supreme Court's view that the Human Rights Act aids the ...