In response to my previous post, a number of readers asked about the role of the law lords. Croft raised the question as to whether other peers could participate in judicial business.
The judicial work of the House is conducted by an Appellate Committee, comprising Lords of Appeal: these comprise the Lords of Appeal in Ordinary (the law lords) and other peers who hold or have held high judicial office (such as judges of the Court of session in Edinburgh). An Appellate Committee normally comprises five Lords of Appeal, though in exceptional cases (as in the Pinochet case) it may be more. Hearings are held in one of the committee rooms in the Lords (usually Committee Room 1 or 2), but judgements continue to be delivered in the chamber. When they are delivered, the senior law lord, now Lord Phillips of Worth Matravers, occupies the Woolsack and puts the motions; the other law lords participating sit on the two front benches.
Other members of the House may attend the sitting, though they may not participate, nor are they entitled to claim expenses for attending. Erskine May, the bible of parliamentary procedure, states the position succinctly:
“While the right of lay peers to participate in the judicial business of the House has not been abolished by statute or standing order, it is the longstanding practice of the House that only those Lords designated Lords of Appeal participate in judicial business. The last occasion, itself an isolated one, when a lay peer voted on an appeal was in 1883.”
The case in 1883 was Bradlaugh v Clarke, when Lord Denman gave his judgement in agreement with the dissenting judgement of Lord Blackburn.
In other words, the judicial work of the House is carried out exclusively by the Lords of Appeal. Lay peers do not participate in judicial business and the law lords refrain from participating in proceedings in the chamber that could create a conflict of interest. There has thus tended to be a reasonably clear, if not precise, separation of the House operating in its legislative and its judicial capacities.
This will change in October when the law lords leave the Palace of Westminster and move across Parliament Square to the new Supreme Court. The House of Lords will thus cease to exercise its judicial capacity. For some of us, it is not a move that has much to commend it.