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Annual Lord Mayor's dinner for Her Majesty's judges
The lord chief justice (left) and Kenneth Clarke at the annual dinner for the judiciary, hosted by the Lord Mayor of London (centre). Photograph: Fiona Hanson/PA
The lord chief justice (left) and Kenneth Clarke at the annual dinner for the judiciary, hosted by the Lord Mayor of London (centre). Photograph: Fiona Hanson/PA

Bin Henry VIII clauses, Ken Clarke told

This article is more than 13 years old
Joshua Rozenberg
The lord chief justice used the lord mayor's annual dinner to give Ken Clarke a firm talking to about 'pernicious' arcane laws

Although the Lord Mayor's annual dinner for the judiciary looks like a scene from a Savoy opera, nobody should be distracted by the anachronistic pikemen and musketeers, by the strikingly tall city marshal in his red and gold uniform or by the swordbearer wearing his fur shtreimel.

In reality this is the judiciary's works outing. However magnificent the Mansion House banquet may be, what the judges really want is a rousing speech by their shop steward. It's the one occasion each year when he's expected to give the bosses a firm talking to. And Lord Judge, the lord chief justice of England and Wales, is turning out to be particularly good at telling successive lord chancellors what needs to be done.

Ken Clarke may come to regret his responsibility for inviting the public to suggest laws they would like to see repealed. People are meant to post their comments on his website, not tell him face to face.

But that's just what Igor Judge did on Tuesday evening when he condemned a seemingly arcane but highly significant power that ministers are taking increasingly often. "Henry VIII clauses should be confined to the dustbin of history," the lord chief justice declared, to rousing applause from his fellow judges. "We must break what I believe to be a pernicious habit."

As he reminded us, Henry VIII was a dangerous tyrant. In 1539 he persuaded a supine parliament to pass the Statute of Proclamations, giving the king's decisions the same force as acts of the legislature.

The 1539 act was repealed immediately after the king's death in 1547. But similar powers to bypass parliament have resurfaced in modern legislation.

For example, the Banking (Special Provisions) Act 2008 allows Treasury ministers to "disapply any specified statutory provision or rule of law". More recently the Constitutional Reform and Governance Act 2010 allows ministers to amend or repeal any prior statute dealing with the civil service, treaties or MPs' expenses.

Judge regards these powers as alarming. He tried to find out how many Henry VIII clauses there now are. As far as the Ministry of Justice was aware more than 120 of them had been passed in the last parliamentary session alone. "It astonishes me," he said.

Of course, the government took the view that these powers were necessary. "Necessity is the plea for every infringement of human freedom," responded Judge, quoting William Pitt the Younger. "It is the argument of tyrants; it is the creed of slaves."

Having twice implied that Clarke was a tyrant, the lord chief justice stressed that he was not accusing governments past or present of intending to subvert the constitution. "But what's to come is always unsure."

The proliferation of Henry VIII clauses would inevitably damage further the sovereignty of parliament, he feared, "increasing yet further the authority of the executive over the legislature".

Clarke took all this in good part: he has known Lord Judge since the days when they used to appear against each as barristers on the Midland circuit. "I take the lord chief justice's words as important to bear in mind," he said politely.

There were other signs of friendship: the lord chancellor said that he had not even been as bruised by judicial review as some of his colleagues. "Nevertheless," he continued, "I know I speak for all members of the government when I say to you – be gentle with us."

This was, perhaps, a rather curious thing to ask of the judges. It seems as unlikely that the courts will hold back from quashing ministerial decisions as it is that ministers will start repealing Henry VIII clauses – even though that could presumably be done without the need for legislation.

Still, it was refreshing to hear Clarke praising the judiciary and promising to "defend the rule of law and civil liberties in a free society". Let's see if the lord chancellor feels the same way about the lord chief justice once their honeymoon is over.

Joshua Rozenberg is a freelance legal writer, commentator and broadcaster

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