UK Government abandons Henry VIII powers to by-pass Parliament

The UK government is abandoning its attempt to give itself new powers to act without parliamentary scrutiny. That is interesting in itself, but also encourages observations on the rise of informed blogging on legal matters in opinion-forming.

My January article Judges defend our long-term liberties from short term politicians included a section on the so-called Henry VIII powers by which the government can bypass Parliament, pointing back to the Statute of Proclamations of 1539 which is the source of the pejorative nickname given to the proposed powers. Given New Labour’s contempt for Parliament, it was unsurprising that they should have had a go at introducing such powers. It was disappointing to find that the coalition government was holding out for them in the Public Bodies Bill.

An article by barrister Adam Wagner called Henry VIII powers to be dropped on the UK Human Rights Blog reports that the government has given way on this. Two points arise, in addition to the obviously welcome news that we are not going back to 16th century despotism even as we condemn other nations for their lack of democracy.

One concerns the coalition’s approach to launching its ideas; one must applaud a government which floats ideas, invites consultation, and withdraws on finding a consensus against it; that is one mark of a healthy democracy. On the other hand, there is a thin line between that and repeated retreats in the face of opposition, with the implication that decision-making has been surrendered to the most articulate commentators. Not for the first time, I wonder if the coalition might invest a little more thought in advance of floating its suggestions – and “floating”, with its implication that every wind brings a change of direction, is an apposite word.

The other point concerns the influence of legal blogging, and is mooted in a comment at the foot of Adam Wagner’s Henry VIII post. The maker, a retired lawyer known as Obiter J, himself a respected commentator on legal matters, rightly accepts that it is hard to prove a causal connection between the volumes of erudite and informed comment now being made by legal bloggers and any effect on those who legislate. Such influence is, of course, not necessarily direct, that is, does not require that the relevant minister actually reads the influential blog posts for himself. What one hopes for is that there will be a higher level of informed opinion as more people look to the legal blogs for information. The traditional sources of articles – newspapers and magazines – are inevitably narrow in scope, in authorship and in the audiences they reach. Ease of publication does, of course, have the drawback that every fool can be heard, and the challenge becomes one of discrimination.

There has been a change of gear recently, with a wider range of intelligent viewpoints being published just as The Times, to take one previously-influential example, has retreated behind a paywall. It does not matter how thoughtful and erudite its columnists are if few people can read them.

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About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
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