Earlier this week, Lord Judge, a former Lord Chief Justice, delivered a lecture at King’s College London entitled: “Ceding Power to the Executive; the Resurrection of Henry VIII”. The reference to Henry VIII is to Henry VIII powers — that is, clauses in Acts of Parliament authorising the executive branch of government to make secondary legislation that amends or repeals provisions in primary legislation.

Lord Judge takes as his starting point the principle of parliamentary sovereignty which, he says, is

so elementary that we take it for granted. It is the foundation for our half written constitution. Democracy and the rule of law are intertwined with it. The democratic process, as a process, has an outing every four or five years at the general election, but it is only by the operation of Parliamentary sovereignty that we remain a democracy on every other day of the year. But what Parliamentary sovereignty never has been is executive sovereignty, or ministerial or government sovereignty. Indeed Parliamentary sovereignty is the antithesis of executive sovereignty. The two concepts are mutually contradictory. The democratic process is not meant to give, and our constitutional arrangements were not intended to provide us with executive sovereignty.

He continues:

When we speak of the sovereignty of Parliament nowadays we tend, perhaps inevitably, to think of the majority in the Commons having its way, of winning. Sovereign is a word which implies primacy, triumph. Fair enough. But surely we should remember that the sovereignty of Parliament has a less glamorous but no less crucial role in our constitution. At the heart of the development of our constitutional arrangements, Parliament is there to protect us from authoritarianism, from despotism, from an over mighty monarch, but also from an over mighty executive. That responsibility remains undiminished. Perhaps nowadays that principle has become a little difficult for the executive, with a majority in the Commons, to stomach.

The burden of Lord Judge’s argument is that Henry VIII powers — although, paradoxically, conferred upon the executive by none other than Parliament — are an affront to parliamentary sovereignty:

1688 and the years since have provided us with simple constitutional principles. Forgive me trying to spell out two sentences what could occupy a very large tome. It is the exclusive responsibility of Parliament to make, or amend or repeal, the laws which govern the country. It is the responsibility of the executive to govern the country in accordance with those laws. For today’s purposes I need not add the responsibility of the judiciary to ensure that all those exercising power exercise it lawfully. All this is simple enough until, exercising its legislative sovereignty, Parliament delegates part of the law-making responsibility to the executive, and when it does so retains very little more than, in reality, nominal control. That is where the crunch is found, and my concern arises.

The concern, then, is that Parliament now routinely invests the executive government with extensive law-making authority that goes well beyond the filling in of technical gaps in primary legislation, and which reaches its apotheosis — or perhaps its nadir — in Henry VIII powers that equip the government to alter or do away with primary legislation itself.  As the House of Lords Constitution Committee recently pointed out in its report on the Strathclyde Review concerning the process whereby statutory instruments are made, “Delegated powers in primary legislation have increasingly been drafted in broad and poorly-defined language that has permitted successive governments to use delegated legislation to address issues of policy and principle, rather than points of an administrative or technical nature.”

While Lord Judge does not go as far as to argue that delegated legislation is itself improper — it is, he acknowledges, “essential” — he contends that the balance of law-making authority as between the legislative and executive branches has gone (well) beyond the tipping-point of constitutional propriety. He concludes that:

Unless strictly incidental to primary legislation, every Henry VIII clause, every vague skeleton bill, is a blow to the sovereignty of Parliament. And each one is a self-inflicted blow, each one boosting the power of the executive.

Ultimately, the nub of Lord Judge’s point arguably has more to do with the separation of powers than the sovereignty of Parliament — although that is not to seek to diminish the importance of the point. The argument, at least as I read it, is certainly not that Henry VIII powers or other broad powers to make secondary legislation are incompatible with sovereignty in a technical or theoretical sense — after all, if Parliament is sovereign, it is surely free to enact legislation authorising the executive to amend or repeal its own enactments. Rather, the crux of the argument is that such powers are an affront to the spirit of parliamentary sovereignty in that they amount to a practical, if not a theoretical, diminution in the extent of Parliament’s legislative authority — a ceding to the executive of constitutional terrain that ought, on Lord Judge’s analysis, to remain within the province of the legislature itself.

Compelling though Lord Judge’s argument might be, the stable door is now wide open and the horse has well and truly bolted. So ingrained is reliance upon secondary legislation that it is difficult to imagine any significant retrenchment in this area, at least absent some major constitutional trigger. But, at the very least, the concerns highlighted by Lord Judge draw attention to the importance of the — admittedly modest degree of — control and scrutiny presently exercised by Parliament over the conferral and exercise of statutory instrument-making powers. And, to that extent, Lord Judge’s analysis provides a further reason to doubt the wisdom of the kneejerk proposals made in the Strathclyde Report — which is the subject of an earlier post — to weaken such parliamentary oversight.