House of Lords (Hereditary Peers) Bill

Lord Keen of Elie Excerpts

Committee stage
Tuesday 25th March 2025 Lords Chamber

[Lord Newby (LD)]

I say that much as I respect the noble Lord, Lord Birt. That just demonstrates the problem of specifying individual placeholders who should get a place in this Chamber.

Thirdly, the noble Lord, Lord Wolfson, made a valiant attempt to explain why he did not think the separation of powers mattered. The only thing I will say is that the separation of powers was legislated for by Gladstone in the Judicature Act 1873, a provision that was not implemented when Disraeli became Prime Minister the following year. As in many other things, I prefer Gladstone to Disraeli. This may or may not have been Liberal policy for 152 years—it actually beats our commitment to having a directly elected House of Lords as the longest commitment continuously held by a political party before it was implemented— and I see no reason why we should change from that position now.

[Lord Keen of Elie (Con)]

My Lords, the first life peerages were conferred under the Appellate Jurisdiction Act 1876, which remained in force until the impact of the Constitutional Reform Act 2005. It is perhaps notable that the first three appointments as Lords of Appeal in Ordinary were Scottish lawyers. It is also notable that the next three appointments as Lords of Appeal in Ordinary were Irish lawyers. However, 15 years later, a suitable English lawyer was identified and appointed.

Against that background, I turn first to Amendments 56 and 57, in the name of my noble friend Lord Wolfson, to which I have added my name. I must note two points. First, I express a degree of surprise about the advice he received from the Cabinet Office upon his appointment to the Government. There is a long and perhaps dishonourable tradition of Attorneys-General, Solicitors-General and Lord Advocates assuming high judicial office after their service in government. Indeed, in the case of the Lord Advocate, it was invariably the practice into the 1960s that he would appoint himself to the most senior judicial office available, there being no conflict of interest. However, there are very good reasons why it is of benefit to this House, as a political House, to have the benefit of those who have served in high judicial office, whether they do so following their retirement or at an earlier stage.

It was a point made by my noble and learned friend Lord Garnier and touched on by the noble and learned Lord, Lord Hope, that, while Lords of Appeal in Ordinary sat in this House, they would do so with a self-denying ordinance. They would not engage in matters that were potentially controversial from the perspective of their judicial office; for example, you would not have seen them engage in debates with regard to the Human Rights Act and other similar matters. However, as my noble and learned friend pointed out, it gave those in high judicial office some impression of the political mood so far as legislation was concerned, and that would have an impact on them when they came, in due course, to address what were potentially politically controversial issues that were raised to a point of law. I suggest that there was always a significant benefit in having such qualified persons in this House, albeit that it may be appropriate that they should be here after the judicial retirement age of 75 and up to the Government’s intended retirement age of 80—I see some of the government Back-Benchers wincing at that, but I understand that that is the intention.

I support the points made by my noble friend Lord Wolfson. I do not go so far as the amendment proposed by my noble friends Lord Banner and Lord Murray, and I do not take the point made by the noble Lord, Lord Grocott, that we are dealing here with protected places. We are dealing here with those who are not executive appointments to this House, of which a greater proportion are going to emerge as a result of this legislation.

In these circumstances, it appears to me that there are two elements. There is the element of an honour conferred on those who are granted high judicial office, and that is already reflected in the fact that the present President of the United Kingdom Supreme Court had a peerage conferred on him upon his appointment and the fact that the Lord Chief Justice, the noble and learned Lord, Lord Burnett of Maldon, had such an honour bestowed upon him as well. Frankly, I would be confident that those who have held high judicial office and have been public servants for so long a part of their career will, as a matter of course, become engaged in the proceedings of this House if that opportunity is presented to them.

I do not agree with the noble Lord, Lord Newby, that there should be no link between the peerage and a distinguished office which has been held. I do not believe we have to go down a slippery slope. However, I acknowledge that the separation of powers has to be noted and acknowledged, albeit Montesquieu was talking about the United States’ system and not our own—and even there, there are changes afoot.

I invite the Government to consider very seriously Amendments 56 and 57, and to comment on the other attendant amendments which would bring those who have held high public office and been distinguished public servants into this House, almost invariably on to the Cross Benches.

[Lord Hermer (Lab)]

I am grateful to all noble Lords for their contributions, which in this group concern the appointment of specific public servants to your Lordships’ House. I will start, if I may, with the amendments that concern the conferral of peerages on serving members of the senior judiciary, tabled by the noble Lords, Lord Wolfson and Lord Banner, and the noble and learned Lord, Lord Wallace of Tankerness.

I start from a happy place of consensus, set out so eloquently by the noble Lords, Lord Wolfson, Lord Banner and Lord Anderson, and the noble and learned Lords, Lord Garnier and Lord Keen. There can be no doubt as to the enormous benefit that your Lordships’ House gains from the presence and participation of former members of the senior judiciary. That benefit is not limited to the contribution of judges. As all the noble Lords I have just listed demonstrate, the contribution of eminent practitioners in the law adds to your Lordships’ House. If I may say so, there was no finer reflection of the contribution made to your Lordships’ House and its importance than the contribution made by the noble and learned Lord, Lord Hope of Craighead.

Before it is thought that I am in competition with the noble Lord, Lord Wolfson, and others for a Private Eye award, there are three reasons why we cannot agree to these amendments. The first is that the Government’s intention is that this is and will remain a single-purpose Bill, to give effect to our manifesto commitment to remove hereditary Peers from participation in your Lordships’ House. I am not going to labour that point because it has been made in respect of so many amendments and was reiterated by the contribution from my noble friend Lord Grocott. We do not consider it appropriate or desirable to seek to piggyback quite separate proposals for reform on to the Bill.

That merges into my second reason. The future composition of your Lordships’ House beyond the proposal in this Bill is a matter best considered in the round. The Government have committed to consult on an alternative second Chamber—and before that, on further reforms—in due course. One can anticipate that it is highly likely that Prime Ministers of all parties will wish to continue to appoint retired senior judges to your Lordships’ House, but, before more comprehensive reform, we consider it appropriate that appointments remain for now at the discretion of the Prime Minister. Of course, if there are to be changes, we entirely accept the point made by the noble and learned Lord, Lord Wallace, that logic dictates that, in respect of judges, it should be extended to Northern Ireland if it is extended to Scotland, England and Wales.

--- Later in debate ---

[Lord Murray of Blidworth (Con)]

I have my name on Amendment 60. It seems to me that the proposal of the noble Lord, Lord Wolfson, in this regard—the Lord Chancellor having by law to be a Member of your Lordships’ House—is sensible. My noble friend Lord Hailsham’s point is easy to answer. Part of the constitutional pottage made by the Blair Government when they passed the Constitutional Reform Act 2005 was the creation of the Ministry of Justice, with its Orwellian-sounding name. It has not been a happy experience melding the operation of the prison system with the court system, and I suggest that the answer is that that is broken up and the Prison Service returned to the Home Office. Accordingly, there would be no need for a separate Secretary of State for Justice, thus answering my noble friend Lord Hailsham’s point, and the Lord Chancellor could therefore return to this House and protect the interests of the judiciary in the Cabinet. He could indeed also return to being Speaker of this House, which would further guarantee his independence from the Government of the day. That, of course, is for another day, but, at the moment, I strongly support the amendment of the noble Lord, Lord Wolfson.

[Lord Keen of Elie (Con)]

My Lords, I too support the amendment proposed by the noble Lord, Lord Wolfson, with regard to the future position of the Lord Chancellor. Of course, that will not involve the Lord Chancellor sitting as a judge in the future, and I question whether it would involve him sitting as Speaker in this House. However, he clearly does have a role, but one that he can perform effectively only if, as the noble Lord, Lord Wolfson, observed, the office is seen as one of the great offices of state, as it once was; if it is acknowledged as “a destination job”, as he described it, the final step in a distinguished political career. By that means, he could also be appointed Secretary of State for Constitutional Affairs, something that is sorely lacking at the present time. Because responsibility for the constitution is somewhat nebulous within government, and I acknowledge that that has been the case since 2005.

The responsibility is devolved to the Cabinet Office to some extent and to the Ministry of Justice in other respects, and there is a clear case for identifying someone who is in a position to discharge the role of Secretary of State for Constitutional Affairs. A suitable person appointed to such an office would also resume the position that great Lord Chancellors occupied in the past. He would be not only the adviser to government on matters of constitutional nicety, but the moral conscience of the Government as well.

That role is difficult to define until it is absent, and it is a role that a suitable Lord Chancellor sitting in this House would be able to perform, with the strength to speak truth to power—something that has sometimes been absent in executive government in this country, as we have faced various constitutional challenges. I heartily endorse the amendment proposed by my noble friend.