On a lighter note, I spent today at the first day of  the Cape Town test match.  The barmy army accompanied the cricket with “Jerusalem” and “The 12 days of Xmas” and all was good natured in the sun, with 17000 spectators.  I ruminated on the pay of cricketers, the hierarchy of seating and the difficulty of getting tickets for the match, which make an outing to Covent Garden (sometimes described as ‘elitist’) a picnic by contrast.  The spectators (including Desmond Tutu) and the teams were thoroughly mixed.  Sport seems to do nothing but good for S. Africa.  The nation is delighted t0 be hosting the World Cup in 2010.  All 10 stadiums are ready; half a million overseas visitors are expected and the event will contribute billions to the economy.  This is much needed because the poverty and the stark differences in living standards cannot be overlooked or allowed to continue.  One cannot but share the optimism and wish the nation well.  President Zuma  is popular; this is despite the fact, or maybe because he is about to wed his fifth wife.  The newspapers report that the marriage has created a vacancy for a fiancee, which has been filled.

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’).

The House will rise in just over two weeks.  When we resume in October, the law lords will have decanted the building.   As a result of assiduous research  (I bumped into a law lord in the lift) I have some knowledge of the timescale: ‘The crates arrive on 15 July’.  

I for one will be sorry to see the law lords go.  There has been a benefit having them located in the Palace, a benefit for us and I believe for them.  I was not persuaded of the case for the change.  Neither were several of the law lords.   Although there is no significant change in powers – the move is primarily physical – I nonetheless fear that it may result in some change in the relationship between the court and the executive, leaving the court exposed without the House of Lords being able to act as something of a buffer between the two.   We shall see.

1. Who is the law lord presiding on the woolsack?

2.  Who is the law lord delivering the judgement?

A commendation to any reader who can identify either and full marks to the first person to identify both.

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.

The focus of the activity in both Houses is the chamber.  If the Houses are not sitting, or even if they are but the chambers are not full, there appears to be an assumption that members are not doing much.

When the House is sitting, a great deal of work is taking place away from the chamber.  Both Houses are more specialised than ever before, working through committees.  On Wednesdays, for example, I may not spend much time in the chamber.  That is largely because my day is tied up with committee meetings: the Constitution Committee in the morning and Sub-Committee E of the EU Committee in the afternoon.   In the Commons, there are also now sittings in Westminster Hall.  In the Lords, we now make  extensive use of Grand Committees for the committee stage of Bills. 

If the House is not sitting, there is still work to be done.  People do not stop writing to us; there is plenty to prepare for when the House returns.  The Palace continues to function.   I have been in the Palace today, catching up on paperwork (as well as marking).  There has been the usual judicial sitting, the Law Lords delivering an important judgement concerning the deportation from the UK of the radical cleric Abu Qatada.    The Atrium in Portcullis House has been busy – a natural meeting point and a place for getting a cup of tea.  I had lunch in the Barry Room and was joined by a fellow peer.  The room was quite busy, not least as a consequence of the judicial sitting.  It is only in the evening that the facilities wind down and people have to leave to get something to eat.

I opposed the creation of the new Court.  The proposal was essentially a ‘back of the envelope’ proposal announced in June 2003 at the time of a Cabinet reshuffle.   There was no compelling case made for the change.  The judicial function of the House of Lords as the highest domestic court of appeal is performed by the Appellate Committee, comprising the law lords and such lords as have held high judicial office.  No one doubted that it was doing its job well (if it wasn’t, then presumably the law lords would not have been selected to form the new court).  The only argument advanced for the change was that people didn’t understand the distinction between the Lords in its legislative capacity (all lords) and the Lords in its judicial capacity (law lords).  No evidence was advanced to show that this was true and that, if it was, that it had any adverse consequences.  The Government proceeded, as I pointed out at the time, on the basis of a perception of a perception.  When the Lord Chief Justice appeared before the Lords Constitution Committee last year, I asked him the reason for the change; he said it was because people didn’t understand what the House of Lords was in terms of its judicial capacity.  I asked him if people would understand what was entailed in the Supreme Court: his answer, basically, was ‘oh no, they’ll assume it is like the American Supreme Court’.

There are potential problems arising from the the change, for both the court and Parliament.  The law lords do not usually take part in debates or votes in the Lords, but they do attend some debates and occasionally have some involvement in the work of the House; by tradition, for example, a law lord chairs Sub-Committee E (law and institutions) of the European Union Committee.  As a result, members of the House get to see the law lords and have some appreciation of their work.  I am one of those who is particularly aware of their worth, as I have been a long-serving member of Sub-Committee E and my office adjoins the offices of the law lords.   At the same time, the law lords have some appreciation of the work of the House.  This is to the benefit of both sides.  The House to some extent can act as a buffer at times of a clash between the executive and the judiciary.  My fear is that when the law lords are isolated in Middlesex Guildhall – it may only be a few hundred yards away physically from the Palace but politically it will be miles away – they are likely to be more vulnerable to attacks from ministers.   Judges are able to give some margin of appreciation to Parliament as the legislature and this is facilitated by knowledge of the institution.  

If the problem is in the name, then the solution is much less drastic than the expensive one on which the Government has embarked.  The simple solution is to leave the law lords where they are and re-name the Appellate Committee of the House of Lords the Supreme Court.  The move across Parliament Square is, in my view, unnecessary; it is certainly expensive.  And who will pay for the running costs of this new court?  The litigants.

Before 1958, the House was comprised primarily, though not exclusively, of hereditary peers.  The exceptions were the Lords Spiritual and the law lords.  The law lords were (under an Act of 1876) the earliest form of life peers.  The 1958 Act empowered the Crown to confer life peerages on people other than law lords.  Section 1(3) of the Act was also of great importance: ‘A life peerage may be conferred under this section on a woman’.  Women entered the House for the first time.  A later Act (of 1963) also enabled women who inherited titles to take their seats in the House.  With each succeeding decade, as more life peerages were created, so life peers became more prominent in the work of the House.

The 1958 Act helped transform the House of Lords.  In the 1940s and 1950s, the House was largely a moribund institution.   Despite having a membership in excess of 800, only about 100 members attended regularly and of those only about 60 could be described as active members.  The House rarely met for more than three days a week and a sitting rarely lasted for more than three hours.  Very few people took an interest in it.

The change since then has been remarkable.  Attendance has increased decade by decade.  By the end of the 1980s, the average daily attendance exceeded 300.  More than 700 members attended one or more debates each session.  By the early 2000s, the average daily attendance exceeded 350.  Nowadays, it tops the 400 mark – despite the fact that the House lost more than 600 hereditary peers in 1999.  The House usually sits now for the same number of days each session as the Commons.  It has a substantial proportion of women members, not least in leadership positions (Leader of the House, Government Chief Whip, Attorney General, Opposition Chief Whip) and has a higher proportion of members drawn from ethnic backgrounds than the Commons.

A combination of the 1958 Act and the House of Lords Act 1999 means that the House has been transformed from a House comprised mainly of hereditary peers to one dominated by life peers.  Increased attendance over the years has meant that the House has been able to become more specialised, through the use of committees, and is able to draw on a membership characterised by experience and expertise in order to fulfil its primary functions, especially that of legislative scrutiny.  In terms of sittings, the House, like the House of Commons, is now one of the busiest legislative chambers in the world.