Judges and Politics: The Parliamentary Contributions of the Law Lords 1876–2009
| Published date | 01 September 2016 |
| Author | Patrick O'Brien |
| DOI | http://doi.org/10.1111/1468-2230.12215 |
| Date | 01 September 2016 |
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Judges and Politics: The Parliamentary Contributions
of the Law Lords 1876–2009
Patrick O’Brien∗
There is a common perception that, prior to the exclusion of serving judges from the House of
Lords in 2009, a ‘politics convention’ operated which required judges to avoid party-political
controversy and ensured that they contributed to debate only rarely. On this view, the presence
of the Law Lords in parliament prior to 2009 presented a judicial independence and separation of
powers problem in theory only. An examination of the contributions of serving Law Lords and
other judicial peers to debates in the House of Lords from 1876–2009 (and retired judges from
1876–2015) reveals that the convention either did not exist or was frequently ignored. While
most judges were infrequent participants in parliamentary debate, some were enthusiastic –
a small number among the most active parliamentarians in the Lords. The most active judicial
peers were conservative in their politics and the best predictor that a judge would be active in
the House was an association with conservative politics or causes.
INTRODUCTION
Until 2009 serving judges in the UK were permitted to contribute to debate in
parliament. These judicial peers were the members of the Appellate Committee
of the House of Lords (known as the Law Lords), as well as senior judges from
England and Wales, Scotland and Northern Ireland who held peerages. Section
137 of the Constitutional Reform Act 2005 now disqualifies a member of the
House of Lords who holds judicial office from sitting or voting in the Lords.
By that provision, the 133 years of the Law Lords’ presence in the House of
Lords were brought to a close, a decision that many senior judges continue to
lament.1There has been extensive work on the policy and political orientation
of the senior judiciary in their court-based decision-making in recent decades,2
but little on their behaviour as parliamentarians.3The parliamentary record of
∗Fellow in Public Law, LSE Law Department. Part of the research underpinning this article was
done for an AHRC-funded research project on ‘The Politics of Judicial Independence in Britain’s
Changing Constitution’ (Grant no AH/H039554/1). I am grateful to anonymous reviewers for the
journal, to the participants in an LSE staff seminar in November 2015, and to numerous colleagues,
especially Robert Hazell, Kate Malleson, Graham Gee, Ben Yong and Michael Blackwell for their
comments and suggestions.
1 For example, Lord Judge, ‘Constitutional Change: Unfinished Business’ lecture delivered at
University College London 4 December 2013.
2 See, for example, A. Paterson, Final Judgment: The Last Law Lords and the Supreme Court (Oxford:
Hart, 2013), A. Paterson, The Law Lords (London: Macmillan, 1982), B. Dickson, ‘Judicial
Activism in the House of Lords 1995-2007’ in B. Dickson (ed), Judicial Activism in Common Law
Supreme Courts (Oxford: OUP, 2007) and B. Dickson, ‘Close Calls in the House of Lords’ in
J. Lee (ed), From House of Lords to Supreme Court (Oxford: Hart, 2011).
3 The only detailed analysis is now over 40 years old and is contained in chapter 10 of L. Blom-
Cooper and G. Drewry, Final Appeal (Oxford: OUP, 1972). Gavin Drewry expresses some
C2016 The Author.The Moder n Law Review C2016 The Modern Law Review Limited. (2016) 79(5) MLR 786–812
Published by John Wiley& Sons Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
Patrick O’Brien
the judicial peers provides an under-examined historical record, unique in a
modern democracy, of engagement by judges with the political and legislative
process over a long period.
This article dips into this historical record, looking at the activities of the Law
Lords and other judicial peers in parliamentary debate over a period of more
than a century: between the creation of the first Law Lords in 1876 and their
departure from parliament in 2009. It has two related objectives: firstly, to create
a picture of how active the judicial peers were as parliamentarians, and to draw
lessons from this behaviour for judges and public law. Secondly, to examine
the common perception that judicial peers abided by a convention that limited
their participation in the House to non-controversial matters. To answer these
questions I conducted quantitative and qualitative analyses of contr ibutions by
judicial peers to parliamentary debate during the per iod 1876–2009. Because
some significant contributions were made by judges other than the Law
Lords – notably the Lord Chief Justice and the Master of the Rolls – I use the
term ‘judicial peers’ throughout to denote the group of all serving senior judges
(including the Law Lords) who held peerages. Judicial peers include the Law
Lords, Lord Chief Justice of England and Wales, the Master of the Rolls, as well
as the Lord President of Scotland and Lord Chief Justice of Northern Ireland.
This definition deliberately excludes the office of Lord Chancellor.4Including
data for Lord Chancellors would drown out the data for the judicial peers and
could only confirm what is already known: the status of the Lord Chancellor
as a senior Cabinet minister entailed that the role was largely political.5To
conflate the Lord Chancellor with the judicial peers is to risk missing or un-
derplaying the significance of the (separate) politics of the professional judges,
who were often at odds with the Lord Chancellor on matters of professional
interest to them.6The activities of retired judicial peers are considered at points
below, as they often acted in concert with their serving counter parts and in
some cases appear to have taken over some of their parliamentary role after
2009. But the kinds of considerations that applied to serving judges – concerns
about engagement with politics, or with the possibility of recusal on grounds
of bias – did not apply to them.7Unlike members of most other professions
(notable exceptions being civil servants or generals) serving judges were in
a significantly different position to their retired predecessors with regard to
political engagement. My primary focus in this article is on the activity of
surprise and disappointment that this subject has not excited more interest from lawyers and
political scientists in his contribution to L. Blom-Cooper, B. Dickson and G. Drewry (eds), The
Judicial House of Lords 1876-2009 (Oxford: OUP, 2009) ch 25, especially 448-451.
4 Following the approach of Blom-Cooper and Drewry (1972), ibid.
5 See D.Woodhouse, The Office of Lord Chancellor (Oxford:Har t Publishing, 2001) and R. Stevens,
The Independence of the Judiciary: The View from the Lord Chancellor’s Office (Oxford: Clarendon
Press, 1993).
6 The professional judiciary were,for example, outraged by cuts to their salaries in the early 1930s,
by Lord Elwyn-Jones’ refusalas Lord Chancellor to promote Mr Justice Donaldson to the Court
of Appeal in the 1970s, and by Lord Mackay’s reforms to judicial pensions in the early 1990s.
7 Although retired judges did sometimes continue to hear cases into retirement and the supple-
mentary panel for the Supreme Court may include retired judges with peerages (Constitutional
Reform Act 2005, s 39). The only current member of the panel in this position – Lord
Collins – has never spoken in the Lords.
C2016 The Author. The Modern Law Review C2016 The Modern Law Review Limited.
(2016) 79(5) MLR 786–812 787
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