Friday, 5 November 2010

A breathtaking Bill of which even Henry VIII would have been proud ...!

On 28th October, the government's Public Bodies Bill received its first reading in Parliament - actually it has been first introduced via the House of Lords.  We all knew that, mainly for economic reasons, a "Bonfire of the Quangos" was being planned but the interesting question was just what form the legislation would take.

We now know that the plan is to hand Ministers sweeping powers to abolish, merge, or modify these public bodies or offices.  The powers are to be exercised by "Orders" (in the form of Statutory Instruments).  Although those orders have to be laid in draft form before Parliament and an "affirmative resolution" of each House obtained, the reality is that, in practice, only rarely will there be any debate.

The basic ministerial powers to abolish etc. are set out in Clauses 1 to 6 which have to be read with Schedules 1 to 6.  In exercising their powers to make orders, Ministers have to "consider" the matters set out in Clause 8. 

The Bill is replete with "Henry VIII" powers.   For example, under Clause 11, a Minister is permitted to make certain amendments to Schedules 1 to 6.  Under Clause 27, an order may repeal, revoke or amend an enactment whenever passed or made.  The Bill contains some restrictions on the use of these powers.  Under Clause 20, an order may not authorise the creation of a power to make subordinate legislation; or grant a power of forcible entry/search or seizure; or grant a power to compel the giving of evidence.  Under Clause 22 - an order may not create or authorise the creation of criminal offences punishable with imprisonment for more than 2 years.  Surely, that is far too extensive a right granted to Ministers to create new criminal offences.  One might be forgiven for thinking that earlier this year the coalition government had mentioned introducing a mechanism to prevent the proliferation of unnecessary new criminal offences - see here

This Bill will extend to England and Wales, Scotland and Northern Ireland.  [There are various clauses in the Bill dealing more specifically with Scotland, Wales and Northern Ireland].

Once this Bill is on the statute book as an Act, it will be there as a permanent extension to Ministerial powers exercisable with quite minimal Parliamentary oversight.

On 4th November 2010 the Solicitors Journal published - "Lords rap government over hasty bonfire of quangos."   In July 2010. the Lord Chief Justice expressed considerable concern over the use of "Henry VIII" powers - see Speech by Lord Judge at the Mansion House dinner for H.M. Judges.  It appears that, since Ministers like such clauses, their use will continue unabated.  Please also see UK Human Rights Blog 5th November 2010.

Addendum 9th November:  See The Guardian 9th November (Public Bodies Bill - a vampire law) which has picked up on the rather objectionable nature of this Bill.

For a further post please see UK Human Rights Blog - "Henry VIII stalks the Public Bodies Bill."

Addendum 11th November: See Joshua Rozenberg in the Law Society Gazette - 11th November.  Rozenberg argues that this Bill, if it were to become law, would destroy the independence from the executive which many public bodies are supposed to have.


  1. Hi,

    Apologies for slight misuse of the comment facility on this particular topic.

    I'd like to make contact with objiterj.

    I have a contact email address here on my Chilcot's Cheating Us blog:

    I would welcome the opportunity to put to obiterj a legal question of signficant potential legal interest.

    Thank you

    Andrew Watt

  2. @ Andrew - these days I merely comment on aspects of the law / lawyers which happen to grab my attention. I have mentioned Chilcot a few times on my "Watching the Law" blog. [Link at the top right of this blog]. I am afraid that I do not get involved in answering questions or offering any opinions or advice. Sorry about that - but that's the way it is. However, I will follow your blog and may comment from time-to-time (as I do on various other blogs).

  3. I would like to thanks for the efforts you have put in writing this blog.I am hoping the same high-grade blog post from you in the upcoming as well.
    Lanier Law LLC