The Law Lords depart

Lord Norton

44087The House  last Monday paid tributes to the law lords and on Thursday the law lords held their last judicial sitting in the House.  Though we may still see them individually, they cease to be members with the creation of the Supreme Court.  (Under the terms of the Constitutional Reform Act 2005 we also lose some other members who hold judicial office, such as Lord Judge, the Lord Chief Justice.)  We lose a law lord as the chair of Sub-Committee E of the European Union Committee: since the sub-committee was established there have been a total of twelve law lords who have chaired it.  I have served under three of them.  Having a law lord as the chairman has been of enormous value. 

It truly is the end of an era.  The judicial function of the House of Lords now transfers elsewhere.  Like many members of the House, I am sorry to see the law lords  depart. 

In a previous post on the subject, some readers were interested in how the Justices of the Supreme Court will be addressed.  I understand they will follow the practice of being addressed as ‘My Lord’ (or ‘My Lady’).

25 comments for “The Law Lords depart

  1. Senex
    27/07/2009 at 1:28 pm

    I notice that in the entrance to the Supreme court building there is symbolism in the use of a thistle and two roses.

    Is this meant to be Scotland and the houses of Lancaster and York? For their clientèle its will no doubt come to be known as the three pricks especially if they loose their case.

  2. CuriousNelly
    27/07/2009 at 2:07 pm

    If the Law Lords have held their final judicial sitting in the House, and the Supreme Court doesn’t open until October, what happens in the meantime? Sorry if this is a simple question but I just didn’t see an obvious answer!

  3. Kyle Mulholland
    28/07/2009 at 9:01 am

    I heartily laughed at Senex’s comment!

    Lord Norton, why was this necessary? The House of Lords is supposed to be the house that gathers together people from the different professions and serves as a high authority to the country. Being a judge is one such profession and their knowledge would seem salient especially with regards to matters that might arise with integrating further into the EU. One might contest that we have lawyers who know their stuff, but don’t we have quite enough of them orating across the despatch box in the Commons?

    Is there no going back on this? It just seems completely pointless and detrimental. As well, it loses yet another facet of British ‘uniqueness’, as many countries have Supreme Courts, we had something quite different that, as far as I can tell, worked well.

  4. Senex
    28/07/2009 at 7:04 pm

    Lord Norton: In the link below may I refer you to the speech made by John Gummer MP, Jan 2005. Although he concerns himself with the Constitutional Bill’s second reading, many of the points he raises have been covered in the blog with bloggers independently coming to the same conclusions as him.

    The link to the Judiciary web page states:

    “What has not changed is the way judgments [sic] are made or given; after all, judges have been independent in the way they work for centuries.”

    John Gummer describes the issues in some detail.

    What I cannot reconcile because I am not a lawyer is that the ‘Law Lords’ are now constitutionally separated from Parliament and the executive, but the legal profession holding office within the Commons is not. I find it difficult to comprehend how such legal practitioners can have a constitutional placement that is higher than the Judiciary of the highest court in the land.

    Could this arrangement somehow work against the Supreme Court or frustrate its efforts by accident or design? Must there be an injustice for us all to find out?

    Perhaps a solution would be to amend the House of Commons Disqualification Act to preclude all legal practitioners from standing as MP’s, something many would welcome. However, it cannot be done because the constitution now prescribes that a legal practitioner should hold the Office of Lord Chancellor.

    For me this is unsatisfactory, as there appears to be a conflict of interest: if such a conflict did exist then the legal profession might persuade its members not to stand or to resign as MP’s at least until it was resolved, that is except the Lord Chancellor.

    Ref: Vol 225, Part #22: Oral Answers to Question 17 Jan 2005; Col 606
    http://www.publications.parliament.uk/pa/cm200405/cmhansrd/vo050117/debtext/50117-23.htm#50117-23_spnew2
    The Constitutional Reform Act 2005
    http://www.judiciary.gov.uk/about_judiciary/judges_and_the_constitution/constitutional_reform/index.htm

  5. handj
    29/07/2009 at 3:12 pm

    It may be slightly churlish – if so I apologise – to be pedantic about two such prolific contributors’ posts but:

    i) Lord Norton uses the wrong tense in his first sentence – the law lords ‘hold’ their last judicial sitting on Thursday (tomorrow) – which will, as with other hearings this week, be broadcast via http://www.parliamentlive.tv/Main/Live.aspx.

    ii) Senex is mistaken in thinking there are two roses – the emblem consists of a rose, a leek, a thistle and a flax representing the four nations – so the soubriquet may, perhaps, not come about!

    Senex’s second comment (July 28, 2009 at 7:04 pm) has made me realise that while the Lord Chief Justice ranks high in the order of precedence (just below the Speaker and Lord Speaker), I don’t recall anything in the Constitutional Reform Act setting out where Justices of the Supreme Court should be placed. A minor point but, if I am right, yet another example that – as is now acknowledged with the botched abolition of the Lord Chancellorship – the reforms haven’t been thought through fully.

  6. 29/07/2009 at 8:46 pm

    I have to say I share Kyle Mulholland’s dismay at the loss of this aspect of our constitution. Intermingling the judiciary and the legislative may be dangerous in theory, but there was there really any problem in practice with the arrangement in Britain’s case? At the very least it would have been nice if the Law Lords had been replaced with something less generic-sounding and less obviously disconnected with the Britain’s constitutional evolution.

  7. 31/07/2009 at 9:49 am

    Lord Norton, any chance of a post on the Constitutional Reform and Governance Bill? I’ve been away, and returned to find an article on it:
    http://www.timesonline.co.uk/tol/news/politics/article6721023.ece

    So life peers will be able to disclaim, and there will be no more by-elections. I know this has all been suggested before, but the article says it’s now a Government bill that will become law next year. Is this likely?

  8. 31/07/2009 at 10:20 am

    This is quite a nice article on the Supreme Court, touching on titles and other arrangements:
    http://lawgazette.co.uk/opinion/joshua-rozenberg/law-lords-sit-last-time-moving-supreme-court

    • Croft
      31/07/2009 at 5:24 pm

      Jonathan,

      Of course in English practice the form is ‘Mr Justice XYZ’ the same was true in the US until the appointment of the first woman justice.

      As I understand it the titles are not being disclaimed but only the seat in the Lords. They will continue to have the title. So we add a new twist to the fairly odd system at present. A hereditary peer of England, Scotland, Great Britain or the United Kingdom may, disclaim that peerage for life. A hereditary peer of Ireland, life peers and all baronets can’t disclaim their titles. Common sense might suggest an opportunity to do some house keeping and let everyone disclaim any title at any age (hereditary titles have to be disclaimed 1 year from succession or from 21 yrs old) but that probably involves the application of common sense! How hard would it be to add one clause to fix this?

      As to the question of precedence. Presumably they will be ranked with Life peers (as present) or back just above the other judges. Then again the Lord Chief Justice ranked in the same place from 1612 till for no obvious reason it was changed in 2007! No doubt a Royal warrant will clarify this.

      • Senex
        02/08/2009 at 3:35 pm

        Fear of the Judiciary is not uncommon and they don’t help themselves by tucking a small piece of black cloth in their belt when red robed for business.

        It may be tradition for them but its not always good PR in my view. At some point in everybody’s life fate conspires to have you making a court appearance.

        I am no different in this respect and had to attend a small claims court over a spat with a B&B landlady. My first court appearance ever and I was wary and uncertain.

        I won’t bore you with the details or the outcome except to say the District Court Judge was a man of pleasant demeanour who made me feel quite relaxed if not welcome. The opposing party never turned up so there was just the two of us.

        The point of all this? Titles! The Judiciary are very sensitive to correct forms of address. Innocently and before the recording black box had started I addressed him as Mr XYZ.

        In a deep throated retort, “Judge XYZ” hit me like a hammer.

        I learned my lesson but the real one that came through was there appeared in my case to be a conflict between the letter of the law and the spirit of the law. There is no appeals process for the small claims court. When you can appeal, the Supreme Court is the ‘last’ court of appeal.

  9. lordnorton
    31/07/2009 at 6:48 pm

    Thanks for the comments.

    handj: you are quite correct in pointing out that the last judicial sitting was yesterday (Thursday), rather than the preceding Thursday, when the law lords sat to hear a case. The last sitting produced a very significant judgment, attracting media attention on a par with the Pinochet case. I may do a separate post on it.

    CuriousNelly: There is usually a summer break when no judicial sittings are held. In this case, the time is needed to get everything in place for October. Material has to be shipped across the road from the Palace to the new Supreme Court in order to ensure that the infrastructure (law library, law lords’ offices) of the new court is in place.

    Senex: I am not sure what legal practitioners in the Commons you are referring to. Appointment as a full-time judge results in an MP being disqualified from the Commons. The Lord Chancellor is now an MP but is no longer head of the judiciary. The Constitutional Reform Act 2005 in many ways brings the Lords into line with the Commons in excluding holders of senior judicial office from membership.

    Kyle Mulholland: Why was the change necessary? Good question. I share your view and that of Nicolas Holzapfel that there appears no good reason for the change. I argued against it and have previously done some posts on it. The Government claimed that it was necessary to ensure a clear separation of powers and that people could not understand the distinction between the House of Lords in its judicial capacity and its legislative capacity. These were claims: no empirical evidence was offered to bolster them. As I pointed out at the time, the Government appeared to be proceeding on the basis of a perception of a perception. There was no disputing that the appellate committee of the House of Lords was a body of the highest judicial quality (which is why the same people will form the new supreme court), that it was internationally respected, and that no improvement in the delivery of justice is achieved by the move. It was clear that the committee operated as a distinct body. If one wanted to make the distinction clear, one could have simply renamed the appellate committee – calling it, say, the supreme court! That would have avoided the expense of creating a new court building and infrastructure. There would, though, be the problem that now exists: namely, that calling it the new body the Supreme Court will cause as much, if not more, confusion in the public mind as to what it does as existed with the House of Lords in its judicial capacity. The move is a physical one, involving no new powers. However, it will be interesting to see to what extent that is popularly recognised.

    Jonathan: Yes, I plan a separate post on the Constitutional Reform and Governance Bill. You are right regarding titles. Croft: the Bill encompasses titles as well as seats. A peer may give up his or her membership of the House. However, provision is also made in a separate clause for the peer to exercise a right to disclaim the title as well. It is up to the individual. This strikes me as a step too far. Though I favour provision for permanent leave of absence – an important component of the Steel Bill – there is a world of difference between being able to apply for permanent leave of absence (with no automatic right to being granted such leave) and simply deciding on one’s own volition to give up seat and title.

    • Croft
      01/08/2009 at 12:58 pm

      Oh! I stand correct then; the last minister I saw speak seemed clear on it being the seat not the title that was being ended. I hadn’t realised the act was available yet. I’m not quite clear on your point of objection. You don’t want them to be able to disclaim the title or you don’t want them to be able to pick? I can’t see the desirability in someone asking for permanent leave and the ‘authorities’ refusing – unless the intent is to stop some peers returning to the commons?

      As to the bill I’m confused or perhaps it’s just the bill/notes don’t seem clear. On 30 part 6+7. This is now allowing a hereditary peer to disclaim their peerage after the 1 year limit imposed by the 1963 act. But only those peers among the 90+ HPs left in the Lords – the ‘excepted hereditary peer’. That would seem to leave the Irish peers in limbo as before and place pre ’99 hereditary peers under different rules of disclaimer than present HPs sitting in the Lords. Consistent?

      To add to the confusion the bill says the diclaimer will be read as if the ‘[hereditary] member disclaimed the peerage under [the 1963] Act’. Ok but that act says it will ‘divest that person (and, if he is married, his wife) of all right or interest to or in the peerage‘ but the bill notes say ‘the peer
      (and his or her spouse or children) lose all rights’ An error?

      On the separation of powers that the government seems much moved by the self same sources calls for the separation of the legislative and executive but I’ve not heard much about that one in their plans! I’m afraid this reform plays into too many of my doubts about constitutional reform. That it is often not about the end result or the substantive situation but purely a superficial presentational measure obsessed with form more than function.

    • Senex
      02/08/2009 at 8:24 pm

      Lord Norton: “I am not sure what legal practitioners in the Commons you are referring to.” All of them!

      May I refer you to the links below: there is an indication of a power struggle within the legal profession per se? The 1996 article in the Independent throws some light on the motivation for constitutional change and how the status quo within Parliament has held up real change within the legal profession. The piece in the ‘Lawyer’ makes the case for lawyers in Parliament and especially the new intake of PPC candidates.

      From a Parliamentary perspective all backbenchers are created equal. This is not the case for lawyers within both houses. In the Commons a Solicitor pursuing the interests of a constituency member cannot pursue that interest through the higher courts because the status quo dictates it must belong to a Barrister.

      It seems unjust that the political reticence required of the Law Lords to maintain their independence should have worked against them whilst Solicitors and Barristers continue their turf war. They might remain apart until such time that there has been a consolidation with hierarchy within their ranks.

      Hence, my conclusion they should remove themselves from Parliament. In their absence Parliamentarians could decide how change is best implemented and for the greater good.

      Is this the real agenda?

      Ref: The Lawyer, July 20 2009
      http://www.thelawyer.com/focus-lawyers-in-parliament-the-commons-touch/1001447.article
      Independent on Sunday, Polly Toynbee, Wed 10 April 1996
      http://www.independent.co.uk/opinion/barristers-a-law-unto-themselves-1304126.html

  10. Kyle Mulholland
    01/08/2009 at 1:14 am

    How soon will the ‘right’ to give up one’s seat turn into the ‘obligation’? How long before the parties start bullying their dissenting members out of the House, onlly to replace them with party aparatchiks, only too keen to follow the party line in the face of common sense or even decency? A bit like the House of Commons!

    It just seems a good move for the political parties, but a bad move for the people and the independence and stability of the Upper House.

  11. lordnorton
    05/08/2009 at 6:52 pm

    Croft: You identify well some of the drafting problems with the Bill and I will be pursuing them. As to my objection, my view is that when you accept a life peerage, you know what you are letting yourself in for: the name is something of a giveaway. There is a world of difference between retirement and resignation. I favour enabling someone to apply for permanent leave of absence because they are no longer able to commit themselves to the House (for example, for reasons of age or infirmity) but not allowing the House to be used as a revolving door between the two Houses. I share the concerns expressed by Kyle Mulholland. On disclaiming titles, I am not quite sure that I understand why this has been included. The reason for disclaiming a title under the 1963 Act was to ensure that one ceased to be a member of the Lords. Under this Bill, one can resign from the House. Disclaiming the title is a separate exercise. Given that one does not have a to use a title (John Thurso and Douglas Hogg in the Commons, for example), then one of my colleagues may be correct in saying that it will be a provision that is hardly, if ever, used.

    Senex: A barrister who sits in the Commons represents constituents in the Commons, the same as a solicitor who sits as an MP. As far as I am aware, barristers are not able to opt to pursue a constituent’s case professionally in the courts. Barristers are a minority in the House and so not able by force of numbers to block change to the legal system.

    Kyle Mulholland: You make an excellent point: I share entirely your concerns. The value of a life peerage is that, once ennobled, there are no sanctions of any note that the party can deploy against you. Enabling members to move in and out may change fundamentally the relationship.

    • Croft
      07/08/2009 at 5:21 pm

      I suppose I can think of two or three reasons why the title should/could be resigned. The first is roughly at present those who succeed but for moral/political reasons don’t want a title. Non-use is a poor substitute to non existence. The second is a peer who commits a crime and is (soon to be) expelled from the house but presently can’t resign the title. I’m prepared to believe some would resign the title under such circumstances. The third would seem to be a subset of the first, namely those life peers who didn’t want a title and object to such things but had to accept it to sit in the Lords. If they leave/retire they may wish to be able to legally drop the title. As a tidying up exercise I think it has some merits even if I think your point on the Life peers being accurately labelled is unanswerable!

      On Senex’s point there is a difference. The Defence Sec/Health Sec (etc) is rarely a general/doctor whereas the key legal positions in government are held by lawyers.

  12. lordnorton
    07/08/2009 at 6:36 pm

    Croft: I would accept the point about those expelled from the House and it may be that it should not be optional in those cases. On the excepted hereditaries, they are in the same position as life peers in that they have accepted a position in the House for life and therefore know what they have let themselves in for. (The exception, of course, is the Earl Marshal and, in an even more unusual position, as you know, the Lord Great Chamberlain.) I understand your point about those who resign being able to give up their titles. As I indicated in my earlier comments, my concern is more with resignation than with disclaiming. As I mentioned, one can choose not to use one’s title. (I don’t think Lord Melchett, for example, disclaimed his title, but he never uses it.) Some existing members of the House effectively drop their title once they are out of the chamber, or at least the precincts. One episode of the ‘South Bank Show’ not so long ago had Melvyn Bragg doing a profile of Ruth Rendell and as part of it interviewed P. D. James. There was at least at one point a mention that they were all members of the Lords.

    I know that not all marriages nowadays are for life, and that life sentences do not necessarily mean life, but when it comes to life peerages I think we should take a stand!

  13. Ana
    19/08/2009 at 2:24 am

    Will the Constitutional Reform Act change the relationship between the executive and legislative? If so how? I am aware that prior to this there was concern that the power’s were fused together but what is actually going to change?… as Croft already pointed out it has been mentioned that there will be a change but we haven’t been told what the cause of action will be?

  14. 19/08/2009 at 11:51 am

    If the attempt to prevent allowing resignation from the House of Lords fails, perhaps barring ex-lords from ever becoming MPs would be enough to prevent the “revolving door” concern. A restriction along these lines could perhaps be used to preserve the independence of the Lords even if it become mostly elected; maybe by going even further and prohibiting members of the Lords from joining a political party or holding a government position.

  15. lordnorton
    19/08/2009 at 12:05 pm

    Ana: Formally, the relationship will not change. Primarily, the seat of the highest court of appeal is moving – across the road from the Palace of Westminster to what was the old Middlesex Guildhall, the other side of Parliament Square. The Supreme Court will essentially exercise the same powers as those of the appellate committee of the House of Lords. In practice, I believe there will be some changes, but these are not formally prescribed. I think the new court may be isolated, and vulnerable to criticism from ministers, to a greater extent than the law lords – understood and to some extent protected by the Lords – were.

    N Holzapfel: I agree. I have been thinking along the same lines. One could either bar them from standing for the Commons or bar them for a set number of years. A provision to this effect was in the Government’s White Paper on Lords reform: anyone elected to the House would then, after serving their term, be barred for a period of five years from seeking election to the Commons.

  16. Ana
    19/08/2009 at 12:43 pm

    My apologies if i sound ignorant but i am only a first year college student, so i clearly do not know as much as the rest of you so if you can bare with but i am still no clearer. . . if the The Supreme Court will essentially exercise the same powers as those of the appellate committee of the House of Lords then how has this made the branches more indpendent… i assumed one of the aims of the Act was to create more independence between the two!

  17. lordnorton
    19/08/2009 at 1:33 pm

    Ana: A good question. The two were already independent – the law lords operated as a very distinct entity – but the Government’s view was that this was not necessarily clear to the public, who would be confused by the highest court of appeal being located in Parliament. The move was designed to make it clear they were separate. Whether such a move was necessary for that purpose is debatable: not all of us were convinced.

  18. Ana
    19/08/2009 at 1:48 pm

    Thank you for baring with me and being so prompt, i am going to make one last point … although i DO NOT agree with the fact that Lord Chancelor was part of all three bodies and i can understand why it could be seen as he could not be impartial,do you think stripping the LC of his responsibilies which stem from a 800 year old tradition was a wise move and as a result will this have a negative impact our constitution?

  19. lordnorton
    19/08/2009 at 4:40 pm

    Ana: It was not a particularly wise move; it was certainly a rushed one, taken without prior consultation. The Lord Chancellor had a distinctive role, one that enabled him to protect (rather than undermine) judicial independence. This was later recognised by an amendment to the Constitutional Reform Bill imposing a statutory duty on the minister to protect that independence. The Lord Chancellor was seen as fulfilling a detached, largely non-political role. That cannot be said of Justice Secretary, Jack Straw.

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