The abolition of the Law Lords was regretful
Sir Keir Starmer KC should keep in mind the dearth of legal talent in Parliament when abolishing the House of Lords.
The abolition of the House of Lords will be one of the biggest debates of the next election, and likely of our next Parliament too. Labour have pledged to replace this ancient body with something resembling a senate; what they call their Assembly of the Nations and Regions. Now, I don’t want to touch this issue; many others will do it far more persuasively and with more precision. However, assuming we do maintain our current system, I would like to make a different argument. Namely, restoring the Law Lords.
Now I don’t want to lament to a time when the upper house was dominated by hereditary peers sitting there only by birth right. Nor do I wish to argue that the change in name and relocation across Parliament Square was regrettable - frankly, I don’t think it matters that they now wear suits and sit in what was Middlesex Guildhall .
Instead, what I regret is removing the top judges’ role in the legislative process. The logic behind this decision was that there was little that the Law Lords could contribute to the legislative process: as a Court their expertise was in interpreting Law and not in making it themselves. Moreover, it was argued that it risked creating a public perception that the Court's role was as legislators - particularly given that you could find any of the political opinions of judges quite easily in Hansard. Moreover, there is the separation of powers argument that allowing judges to sit in the legislature will indirectly impact their decision making, increasing the likelihood of corruption.
However, these criticisms were all overstated. From the year 2000 onwards the Law Lords did not take part in Parliamentary business with strong party political controversy. They would also disqualify themselves from sitting in cases where they had expressed an opinion. Accordingly, their purpose was mainly to raise technical legal issues in relation to general bills and to introduce law reform bills. However, in areas of general law-creation where they were involved their merit is hard to argue with - indeed, from scanning the debates that preceded the Devolution Acts and Human Rights Act it is not hard to find value in the legal expertise of the Law Lords.
Furthermore, protections against bias are not any greater under the current approach. Former Justices like Lord Sumption have always been public with their views. He even co-wrote a book with Keith Joseph - CPS Founder and former Tory Minister, and only temporarily stopped his activism when he sat on the Court. Many now know him better for his anti-lockdown campaigns as opposed to his brilliant work that he did as a Justice. You have to be naive to assume that Lady Hale and Lord Sumption’s politics did not impact their approaches to private law. Bias is not possible to get rid of completely and the public perception of it existing has not declined by them no longer sitting in the Lords. To risk being crass, the Courts were never described as enemies of the people in the national press when the justices were known as Law Lords.
Lord Bingham once argued that the Law Lords can only make a slight contribution to the House, and therefore should not belong to it. However, I don’t agree with this portrayal, because it understates the sheer dearth of legal talent in Parliament, and what the Law Lords did to address this. Historically, it was common for senior Barristers to maintain their practice and their Parliamentary affairs as MPs simultaneously. This is now rare due to the increasing time demands of being an MP. Moreover, the few legal minds sitting in Parliament, like Lord Norton and Lord Pannick simply cannot by themselves explain Law to more than a thousand parliamentarians when the weight of the Government is going against them.
In recent years we have seen a growth in mass misunderstanding and misrepresentation of Law largely directed by the Tory establishment. Repeatedly MPs like our current Lord Chancellor, Dominic Raab, have purposefully lied about what the Law is to help force through their own personal vanity projects. Several Tory Home Secretaries have done exactly the same. Legal reform is hard, and we task that to a body of people ill informed on Law. Indeed, look at an instrument like the Law of Property Act 1925. Modern land law almost a century on is still intrinsically reliant on that piece of legislation - and it’s not an easy area. Human Rights Law is the same; it seems implausible that those debating Raab’s Bill of Rights have the same understanding of law as the Parliament that passed the Human Rights Act 1998.
There are a few mechanisms we have to help this. Both the main parties have a society of lawyers to help aid them in creating Law. We can see this being put into effect through the recent interventions of Sir Bob Neill in the Internal Markets Bill and in the legal aid crisis. However, Bob Neill, with all due respect, alone has had very little impact as an authority on Law and thus we repeatedly see people inadvertently misled by the lies told by the Executive, despite his warnings. The Law Commission are also of some use in proposing technical improvements to Law, but cannot directly confront the problems we see.
We need more legal talent in Parliament, and who better to provide it than members of the highest court in the land? By convention, we ensured very well that they do not become political, and they would recuse themselves (normally, apologies to Lord Hoffman) when risks occurring. Keep them across the road, and don’t make them wear wigs - I don’t think it matters. However, they provide the best way of ensuring the Governments are held to account, prevented from misleading Parliament, and ensuring Law creation is done in a way accountable to legal truth.
Should the Lords be replaced, then we still will need a better way of ensuring more bright lawyers get into Parliament. Perhaps, we delegated the Benchers’ tables at the Inns of Court as a region for the Assembly of them, if we don’t want the Supreme Court justices? Regardless of how you do it, everyone should regret the removal of the Law Lords from the legislative chambers, and agree that increasing legal talent would improve Parliament as a chamber designed to hold the Executive to account.