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On Friday, The Guardian’s Patrick Wintour exclaimed that “Government plans to abolish a raft of quangos by ministerial decree will have to be completely redrawn after Lord Judge, the lord chief justice, attacked the plans as astonishing and a threat to the entire way in which the judiciary works.” 

He was of course discussing the comments made by the Lord Chief Justice, Lord Judge, in evidence to the Lords Constitution Select Committee on the controversial Public Bodies Bill.

Following his speech to the Mansion House Group in July, Judge was pressed about his comments on Henry VIII clauses in legislation. Commenting on the Public Bodies Bill, currently making its way through Parliament, he joked “Henry VIII’s clause itself lasted only about seven years; I think that it was removed immediately on his death and that was supposed to be the end of it.”

He stated that “Schedule 7 of the public bodies bill includes a large number of institutions which are important in themselves, whose importance is important to the public, and whose independence is part and parcel of the independence which we attach to the entire way in which the judiciary works . . . If you put [eg the Judicial Appointments Commission, the Criminal Cases Review Commission, the Parole Board, the Sentencing Council] into Schedule 7, you make them amenable pretty rapidly to disposal by the Government of the day. That seems to me to be extraordinary.”

He concludes, “The independent judiciary standing entirely alone is a rather small body, but if all those other bodies which exercise quasi-judicial functions are independent of Parliament then it strengthens the independence of the judiciary.”

However, when pressed further on concerns to the independence of the judiciary, he explained: “No, I have no particular concerns at the moment. There is always the overriding concern that something may come along that does disturb me, and we have just discussed the Public Bodies Bill issue.”

(UKSC Blog Editorial notes that this isn’t the first time that controversial legislation has been criticised by judges as threatening the independence of the judiciary.)

Interestingly, the Lord Chief Justice also talks about ‘judge-made law’ and Strasbourg jurisprudence – “In one sense judges are making the law up – not as they go along – but they are doing it on the basis that Parliament has said that the Human Rights Act requires you to take account of the provisions of the Convention” – and about judges giving evidence to parliamentary committees: “I am anxious that it shouldn’t turn into a circus so that we have endless judges coming endless times to answer endless questions, which anybody can look up on Google and get the answer in two minutes, but because a judge says it, it is somehow that much more authoritative.”

Lord Judge is also in the news this week for allowing twitter in court – following the issue of interim guidance that live text-based communication is acceptable as long as the judge believes it would not interfere with the administration of justice.