House of Lords (Hereditary Peers) Bill

Lord Banner Excerpts

Committee stage
Tuesday 25th March 2025 Lords Chamber

[Lord Wolfson of Tredegar (Con)]

My Lords, in moving Amendment 56, I will speak also to Amendment 57. Both seek to ensure that senior members of the judiciary are appointed as life Peers with the right to sit and vote in your Lordships’ House. I will declare an interest— and a non-interest.

First, the non-interest: I have no intention of becoming a judge. Indeed, when I became a Minister, I received advice from the propriety and ethics committee of the Cabinet Office that, having been a Minister, I had probably rendered myself unable to accept an appointment as a judge. I thought that was a little odd. I am not sure whether the noble Baroness, Lady Gray of Tottenham, was involved in that decision or warning; we all know that the Cabinet Office at that time kept a very close eye on the impropriety of people moving from non-political posts into others in our constitution. The interest I have is as a lawyer; I want to make this House work as well as it possibly can.

The historical position is this: for over 600 years, from 1399 to October 2009, the House of Lords was the highest appeal court in the land. This House had a vital judicial function. Between 1876 and 2009, that function was served by the Lords of Appeal in Ordinary. From 2009, the Supreme Court of the UK assumed that jurisdiction; the then 12 Lords of Appeal in Ordinary —the Law Lords, as they were colloquially called—were the first Justices of the 12-member Supreme Court, and they were disqualified from sitting or voting in your Lordships’ House.

When they retired from the Supreme Court, they could return to the House of Lords as full Members, which they were, but—and this is the point—newly appointed Justices of the Supreme Court do not have seats in your Lordships’ House. From that point on, apart from the grandfather rights—if, in light of the debate on the previous group of amendments, I can use a sexist term—given to existing Lords of Appeal in Ordinary created under the 1876 Act, the long link between this House and the judiciary was severed. Indeed, the last Law Lord was created in 2009.

It is important to appreciate that the old system preserved a clear distinction between the Law Lords’ role as judges and as legislators. I will give a simple example of that. When Lord Lyndhurst, as Lord High Chancellor, considered himself bound in his judicial capacity to decide the famous Lady Hewley’s charity appeal—Attorney-General v Wilson 1848—it turned on the difference between trinitarianism and unitarianism for the purposes of charity law, a topic into which I fear to venture. While he held himself responsible to decide that point in accordance with legal orthodoxy, which he did, he then introduced, as Leader of the House of Lords, a Bill—which became the Nonconformists’ Chapels Act 1844—to remedy, and indeed to overturn, the perceived injustice consequential on his own judicial decision.

Why are we in this position? The great absence today is that of the noble and learned Lord, Lord Falconer of Thoroton. His Constitutional Reform Act—I will have more to say about that Act in the next group—is, frankly, responsible for quite a lot of the constitutional mess that we now find ourselves in.

The basis for my amendment is this: your Lordships’ House has been deprived of the experience of many Supreme Court Justices who could and would contribute a great deal to the work of this House in the way—if I may say this without nominating myself for Private Eye’s “Order Of The Brown Nose”—that the current former judicial Members of this House play such an important part and lend their expertise.

When I sat on the Government Benches as a Minister, I was not worried about the barrage that I might receive from the Opposition Benches, and I certainly was not concerned about the occasional small-arms fire from the Liberal Democrat Benches; I was worried about the incoming missile from my right—from the judicial Members of the Cross Benches. Without this amendment, it will be unclear on what basis peerages will be awarded to those who reach those lofty judicial heights. What we must avoid at all costs is any impression that peerages are given or withheld by the Prime Minister of the day to senior judges, depending on how particular cases have been decided. The only way to avoid that is to have clear rules as to when a peerage will be awarded. That is why I have sought, in my amendments, to highlight the highest judicial offices and to attach a peerage to those offices.

I see that the impressive legal twin strike force of my noble friends Lord Banner and Lord Murray of Blidworth has taken my amendment and added “all Supreme Court Justices”. I will listen carefully to what they have to say, but the principle underlying our amendments is the same.

Finally, the amendment also disapplies Section 137(3) of the Constitutional Reform Act, which disqualifies a holder of relevant judicial offices from sitting or voting in your Lordships’ House. We do not need that provision; we managed perfectly well under the old system. The problem we have now is that, although we have a wealth of judicial experience, it is not as current as it used to be when we had the Law Lords here. I know this may be shocking to many Members of your Lordships’ House, but even the law moves on and changes. The way law is done—and what the law is—is simply not the same now as it was five, 10 or 20 years ago. That is especially the case in areas such as family law.

I remember taking the Domestic Abuse Bill through this House—I pick a topic which was taken on a total cross-party basis. Family law in 2025 is radically different from family law in 2000, and certainly family law in 1980. So I suggest that this House would benefit from the presence of judges who either are sitting or who have very recently sat. My submission to this Committee is that these amendments will improve our debates and our membership, and I therefore beg to move.

[Lord Banner (Con)]

My Lords, I speak in support of Amendment 68, which, as my noble friend Lord Wolfson indicated, takes the premise of his Amendment 56 and rolls it out to all Supreme Court justices. I declare an interest as a practising King’s Counsel who fairly frequently appears before the Supreme Court, including in one appeal where judgment is still pending.

I supported the replacement of the Appellate Committee with the new UK Supreme Court, and I still believe that was the right decision. In a modern democracy, all courts, and in particular the final court of appeal, must not just be but be seen to be separate and independent from the other branches of the state.

However, a collateral and I think probably unintended effect of this, as my noble friend Lord Wolfson outlined, has been significantly to reduce the pool of Cross-Bench legal expertise in this House. By convention, certainly by the turn of the millennium, sitting Members on the Appellate Committee did not speak in debates and did not otherwise participate in relation to controversial matters, although they did sit in committees to some degree. However, upon their retirement they invariably would—and those who remain still do—make an invaluable contribution to the work of this House.

It is also the case that, prior to retirement and while in office as judges, by virtue of being Members of this House, those on the Appellate Committee would have a fuller and further first-hand understanding of the procedures of Parliament, which, as my noble friend Lord Wolfson indicated in his excellent lecture at Policy Exchange earlier this afternoon, may have assisted the judges in their consideration of the Prorogation issue in the second Miller litigation.

Now that the final court is outside this House, its members no longer need to receive a peerage upon being appointed and, contrary to what had been advocated in some quarters, no convention to that effect has been established. In recent years, among full-time Supreme Court justices, only the President has been by convention awarded a peerage—albeit that the Lord Chief Justice, who occasionally sits in that court, has also by convention been awarded a peerage.

The result of all this has been significantly to reduce the pipeline of top-tier judges able to contribute to the work of this House. Amendment 68 would rectify that by requiring all current and future Supreme Court justices to be awarded a peerage. I myself would envisage that, during their tenure on the court, they would follow the Appellate Committee’s former convention that sitting judges do not speak in debates and do not otherwise participate in controversial matters, but, upon retirement, they would be able fully to engage and thus continue the long-established and invaluable tradition of our most senior judges contributing to the work of this House on their retirement from the Bench.

[Lord Murray of Blidworth (Con)]

My Lords, I will speak to Amendments 56, 57 and 68 in this group, to which I have added my name. I declare an interest as a member of the Bar. I also declare a special interest in that, across the corridor in my chambers is the room of Lord Dyson, who was the first member of the Supreme Court not to be the beneficiary of a peerage under the Appellate Jurisdiction Act, and therefore the first person from these Benches that the House did not have the benefit of hearing from, which in my view was a great loss—and that applies to many members of the Supreme Court.

There is an element of confusion in the general public, and indeed even in the politically engaged general public. When they read of public pronouncements from the likes of Lord Dyson or Lord Sumption, they are under the impression that these people are Members of this House. When the Constitutional Reform Act 2005 came into force, there was a question about what title one gave to the Justices of the Supreme Court. So, when Sir John Dyson, as he then was, became a member of the Supreme Court, having formerly been the Master of the Rolls in the Court of Appeal, where he was Lord Justice Dyson, there was a need to differentiate him from the members of the Court of Appeal and to give a special title to members of the Supreme Court.