Patrick O’Brien
Judges and politics: the parliamentary
contributions of the Law Lords 1876-2009
Article (Accepted version)
(Refereed)
Original citation: O'Brien, Patrick (2016) Judges and politics: the parliamentary contributions of
the Law Lords 1876-2009. Modern Law Review, 79 (5). pp. 786-812. ISSN 0026-7961
DOI: 10.1111/1468-2230.12215
© 2016 The Author
This version available at: http://eprints.lse.ac.uk/67791/
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1
Judges and Politics:
The Parliamentary Contributions of the Law Lords 1876-2009
Patrick O’Brien*
11,364 words (14,056 including footnotes)
Keywords: Law Lords, House of Lords, judicial independence,
constitutional conventions, law and politics.
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 them to stay
aloof of partisan political controversy and which ensured that they contributed 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
debate in the House of Lords from 1876-2009 (and retired judges 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
amongst 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.
2
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.
1
There 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.
3
The parliamentary record of 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
* 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
Eg Lord Judge ‘Constitutional Change: Unfinished Business’ delivered at University College London 4 December
2013
2
See eg 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 cpt 10 of L. Blom-Cooper and G. Drewry,
Final Appeal (Oxford: OUP, 1972). Gavin Drewry expresses some 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), cpt 25, especially 448-451.
3
non-controversial matters. To answer these questions I conducted quantitative and qualitative
analyses of contributions by judicial peers to parliamentary debate during the period 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.
4
Including 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.
5
To
conflate the Lord Chancellor with the judicial peers is to risk missing or underplaying 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.
6
The activities of retired judicial peers
are considered at points below, as they often acted in concert with their serving counterparts 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.
7
Unlike 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 activity of the serving judicial peers between 1876-2009: on how
serving judges made use of their voice in Parliament and on how their behaviour changed over time.
4
Following the approach of Blom-Cooper and Drewry (1972), above n 3.
5
See D. Woodhouse, The Office of Lord Chancellor (Oxford: Hart 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’ refusal as 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 supplementary panel for the
Supreme Court may include retired judges with peerages (s. 39 Constitutional Reform Act 2005). The only current
member of the panel in this position – Lord Collins – has never spoken in the Lords.
4
The first Law Lords were created under the Appellate Jurisdiction Act 1876 ‘[f]or the purpose of
aiding the House of Lords in the hearing and determination of appeals’.
8
This was done at a time of
significant constitutional change. The appellate jurisdiction of the House had fallen into disrepute
because of the poor quality of its decision-making and had been due for abolition
9
but a change of
government from Liberal to Conservative led to a change of policy. The 1876 Act retained the
appellate jurisdiction of the House but sought to professionalise it. Appeals now had to be heard by
at least three Lords of Appeal – made up of the Lord Chancellor, the newly created Law Lords, or
other peers who had previously held high judicial office.
10
The Act did not specify that lay peers
could not contribute to judicial decisions, but a convention to that effect developed very quickly. A
few years after the 1876 Act came into force a lay peer, Lord Denman, attempted to vote on the
disposal of Bradlaugh v Clarke
11
but his raised hand was ‘utterly ignored by the Lord Chancellor’.
12
No significant distinction was made between the judicial and ordinary business business of the
House after 1876. Both took place in the main chamber, with judicial business taking place before
ordinary business. A dedicated Appellate Committee which sat outside the chamber was not created
until 1941 and this was done for practical reasons. The chamber of the House was being rebuilt
following a wartime bombing raid and the noise of building work during the day made judicial
business impossible. This arrangement became permanent from 1948 onwards, although judgments
were still delivered in the chamber.
13
When the judicial peers spoke in Parliament they did so against the backdrop of a form of
constitutional politics that was highly pragmatic and intellectually capable of accommodating
engagement between judges and politicians. As Lord Irvine put it ‘we are a nation of pragmatists,
8
Appellate Jurisdiction Act 1876, s 6.
9
Supreme Courts of Judicature Act 1873.
10
1876 Act, s 6.
11
(1883) 8 App Cas 354.
12
T. Beven, ‘The Appellate Jurisdiction of the House of Lords’ (1901) 17 LQR 357, 370. An earlier and looser form of
this convention arose out of O’Connell’s Case (1844) 11 Cl & F 155.
13
J. Vallance White, ‘The Judicial Office’ in L Blom-Cooper et al (eds), The Judicial House of Lords 1876-2009,
above n 3.
