House of Lords (Hereditary Peers) Bill

Lord Wolfson of Tredegar Excerpts

Committee stage
Tuesday 25th March 2025 Lords Chamber

Moved by

[Lord Wolfson of Tredegar]

56: After Clause 1, insert the following new Clause—
“President and Deputy President of the Supreme Court(1) Omit subsection (3) of section 137 of the Constitutional Reform Act 2005 (parliamentary disqualification for holders of disqualifying judicial offices).(2) On the day on which this Act is passed, the Prime Minister must recommend to His Majesty the King that the President and Deputy President of the Supreme Court be granted a life peerage under section 1 of the Life Peerages Act 1958 (power to confer life peerages).(3) When a person is appointed as President or Deputy President of the Supreme Court, the Prime Minister must recommend to His Majesty the King that the person be granted a life peerage under section 1 of the Life Peerages Act 1958.”Member’s explanatory statement
This amendment would ensure the President and Deputy President of the Supreme Court are granted life peerages.

[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.

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[Lord Garnier (Con)]

My noble friend was obviously a keener member of APPGs than I was, but I am sure he is entirely right.

None the less, I think it important that we in this House, and the Supreme Court, for its part, should mutually benefit from each other’s membership. I hope the Government will accede to my noble friend Lord Banner’s amendment, even if it does not go as far as my noble friend Lord Wolfson asked for in his.

I heard two particularly hurtful and outrageous suggestions this afternoon. One was from my noble friend Lord Wolfson: that he was not in the least bit bothered by the submissions from Members of his own Back Benches when he was a Minister.

[Lord Wolfson of Tredegar (Con)]

When I said, “the Opposition”, I meant the Opposition as then constituted; anything that came from our own side was obviously of the highest quality.

[Lord Garnier (Con)]

I was fishing for that compliment —and it does take a lot of effort. Anyhow, the other outrageous thing was my noble friend Lord Parkinson claiming that exceptionalism from lawyers was something to be criticised; I find that very distressing.

I will finish on this point. I cannot compete with my noble friends Lord Wolfson and Lord Banner, or indeed the noble Lord, Lord Anderson, on the number of times I have appeared in the Supreme Court, and I am certainly not awaiting a judgment now, but the last time I appeared there was in 2019, when I had the joy and honour of being against my noble and learned friend Lord Keen of Elie. He was acting for the Government and I was not. I had the advantage of being able to describe his client, the Prime Minister, very frequently as “the defendant”.

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[Baroness in Waiting/Government Whip (Baroness Anderson of Stoke-on-Trent) (Lab)]

My Lords, on behalf of the Government, I thank the noble Lord for his question. Obviously, it is not appropriate for the Government Benches to respond. The clerks have been clear, and we are discussing all amendments as laid out. We are on the second group of 12 today, so I beg we move forward.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am going to move forward by thanking everybody who contributed to that very interesting and informative debate. I did not declare an interest as a practising barrister—although of course I am—because I do not have any outstanding cases from the Supreme Court. The reason for that is that I received judgment in my last case in the Supreme Court only last week. Full disclosure—I lost. I knew things were bad when I saw in the draft judgment that the court had been very kind about how well I had argued it. That is always fatal; when the court is nice about the way you argue a case, it is going to decide against you. It is an immutable rule of English jurisprudence.

I am grateful for all the support I received on these points from various parts of the House, particularly from the noble Lord, Lord Anderson of Ipswich, who brought his experience to bear. I listened extremely carefully to what the noble and learned Lord, Lord Hope of Craighead, said about participation; that is a real issue. However, I was somewhat alarmed to hear that the first the Law Lords heard of the demise of that venerable institution was on the TV and that they had not been told in advance. I would have thought that a Labour Government would have wanted to tell people about any change in their—so to speak—employment status. Again, it is such a shame that the noble and learned Lord, Lord Falconer of Thoroton, is not among us.

As far as the noble Lord, Lord Newby, is concerned, the answer to the point he gave about individuals was precisely the point that was made by the noble Lord, Lord Anderson, and that was made thereafter by my noble friend Lord Murray. I confess that whenever it comes to a bust-up between Gladstone and Disraeli, I will invariably be on the side of Disraeli.

I am grateful for the support from my noble and learned friend Lord Keen of Elie, both by way of him adding his name to my amendments and from his position on the Front Bench. I wonder whether the reason I received the advice that I would be effectively barred from becoming a judge—although the prospect of Wolfson J was always somewhat theoretical—was because I was becoming a Minister and not a law officer. I was a little surprised, but there we are.

I am extremely grateful to the Attorney-General for his response. He is right that there appears to be a consensus across the Committee that we need to find a way to have more judicial Members here, at the right time. I therefore look forward to continuing the conversation. I would make only one final point: my understanding is that so far as unamended Bills are concerned, in the previous Session only four Bills went through entirely without amendment. Two were money Bills, one was an emergency Bill and one was a Bill on animal welfare that had cross-party support. It is a somewhat worrying approach for a Government to say, ab initio, and before listening to the debate, that they will brook no amendments at all, even if they have cross-party support in principle, as this one has. With that caveat, I will withdraw my amendment.

Amendment 56 withdrawn.

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Moved by

[Lord Wolfson of Tredegar]

60: After Clause 1, insert the following new Clause—
“Lord ChancellorIn the case of any person who holds the office of Lord High Chancellor of Great Britain who is not currently a member of the House of Lords, the Prime Minister must recommend to His Majesty the King that the person be granted a life peerage under section 1 of the Life Peerages Act 1958 (power to confer life peerages).”Member’s explanatory statement
This amendment would ensure that the Lord Chancellor is a member of the House of Lords, as was the case for over two centuries leading up to the passage of the Constitutional Reform Act 2005.

[Lord Wolfson of Tredegar (Con)]

My Lords, Amendment 60 seeks to ensure that,

“any person who holds the office of Lord High Chancellor of Great Britain who is not currently a member”

of your Lordships’ House must be recommended by the Prime Minister for a life peerage under the 1958 Act.

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[Lord Hermer (Lab)]

I thank the noble Lord, Lord Wolfson, and other noble Lords for their contributions to this debate. We do not accept Amendment 60 for three reasons, beyond the fact that it falls outside the intended scope of this single-issue Bill.

First, the amendment seeks to fetter the power of a Prime Minister to shape the Cabinet according to his or her own choosing. Under this amendment, if the Prime Minister wished to choose a sitting MP to be Lord Chancellor and Secretary of State for Justice, as has been the case for every Lord Chancellor since 2007, that person would have to vacate their seat and trigger a by-election; or, if this amendment were to be accepted, the Prime Minister would be required to separate the roles of Lord Chancellor and Secretary of State for Justice. In the Government’s view, that would be a constitutionally inappropriate fettering of the Prime Minister’s discretion to pick a Cabinet of his or her own choosing.

Secondly, there is no constitutional or public policy rationale to justify taking us back to the position that we were in before 2005. One cannot, for the reasons set out by the noble Viscount, Lord Hailsham, simply pick and choose without going wholesale back to the 2005 position—putting the Lord Chancellor back on the Woolsack and as the senior judge—because what else is left of the Lord Chancellor’s role? It cannot simply be a rationale driven by nothing more than to have a member of the Cabinet committed to upholding the rule of law. That should be a commitment consistent with the ministerial code for all members of the Cabinet but, if I may say so, I also see it quite properly as a role for an Attorney-General. As the House will be aware, with the Prime Minister’s and the monarch’s grateful permission, the oath of the Attorney-General was changed when I took it to include an express commitment—although it would always have been implicit—to the rule of law.

Thirdly, the amendments fail to address what we would respectfully say are the most important attributes for a Lord Chancellor in the post-2005 age. Those attributes were identified by the Constitution Committee, which considered the Lord Chancellor’s role in a report two years ago—and I acknowledge the committee’s current chair, who is not in his place, the noble Lord, Lord Strathclyde. In its final analysis, the report said that

“character, intellect and a commitment to the rule of law are the most important attributes for a Lord Chancellor to possess”.

We agree, and we do not consider that the acid test of those attributes is the House in which a Lord Chancellor should sit.

My right honourable friend the Lord Chancellor exemplifies the qualities of a great officeholder committed to the rule of law. More widely, as she has made clear, this entire Government see the rule of law as our lodestar. I have no doubt that the Prime Minister has appointed my right honourable friend in the confidence that the House in which she sits is no hindrance to her in discharging her vital constitutional responsibilities. For those three reasons, I respectfully request that the noble Lord withdraws his amendment.

[Lord Wolfson of Tredegar (Con)]

My Lords, I am grateful for the contributions in this short but important debate. I make the point, although it really ought to go without saying—but I say it for the avoidance of doubt—that none of this is any reflection on the current occupant of the role, for whom I have the greatest personal respect. What we have to do when we consider constitutional matters is to move away from the personal and to the principled, and that is what my amendment is directed at.

The noble and learned Lord the Attorney-General has identified three reasons why this amendment cannot be accepted by the Government. First, he said, it would fetter the PM’s choice of who to have in the Cabinet, but it does not; the PM can still appoint anybody to the role of Lord Chancellor. In fact, the Prime Minister is able to appoint anybody and is not limited to Members of the House of Commons, because somebody could be parachuted in, as has happened on previous occasions. There is no fetter at all—that is a good red herring.

The second point is about what the Lord Chancellor would do. That was the point made by my noble friend Lord Hailsham—and the noble Lord, Lord Murray, gave the short answer. The Lord Chancellor would be there to oversee the really important parts of our constitution: constitutional affairs, devolution, human rights and international treaties. We should therefore go back to the Lord Chancellor being in charge of a Department for Constitutional Affairs.

As to the last point, that the current Attorney-General is the first one to add into the oath a commitment to the rule of law, of course I share that commitment to the rule of law with him—although I think that our interpretation of what it contains may sometimes differ, but that is not a matter for now. With regard to statute, the Lord Chancellor is in a sui generis position. I continue to think that we have lost something important in the 2005 Act, and I hope that this conversation may continue, but of course I beg leave to withdraw the amendment this evening.

Amendment 60 withdrawn.

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[Lord Vaizey of Didcot (Con)]

My Lords, I will speak in support of my noble friend Lady Laing’s amendment.

I begin by pointing out two problems with her proposal before I give her my unwavering support. I call the first the “Wolfson problem”, or perhaps the “Timpson problem”, whereby we appoint extremely experienced and able people to fill a ministerial role and then discover, when they leave that ministerial role, that they will be extremely distinguished and able Members of our House for the rest of their lives.

I gave three cheers when my noble friend Lord Wolfson came into this House, and I gave three cheers for the three excellent Ministers appointed by the new Government to the Front Bench, each with huge expertise in their areas. I invidiously agree with my noble friend Lord Attlee that one of them is the noble Lord, Lord Timpson. I have absolutely no doubt that they will continue to make extremely distinguished contributions to the House long after they have left their ministerial posts. The “Wolfson problem” is easily solved by converting those temporary Ministers into full-time life Peers at the discretion of the Prime Minister of the day.

The second issue is the element of—

[Lord Wolfson of Tredegar (Con)]

The only problem with that is that I left my ministerial office because I resigned from it. The prospect of the Prime Minister of the day thereafter appointing me as a life Peer might be regarded as somewhat remote.

[Lord Vaizey of Didcot (Con)]

As somebody who left the Whip because of the capriciousness of the then Prime Minister, and then managed to get the Whip restored and to be put into this House, I know that there are ways around the problem, particularly with extremely clever arguments put forward on one’s own behalf. But I digress.

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[Baroness Laing of Elderslie (Con)]

My Lords, I thank the Minister for his assessment of the amendment that I have put before the Committee. It had not been my intention to have any argument ad hominem. I was not looking backwards in my tabling of this amendment in order to eject from the House any particular former Minister—and certainly not any sitting here.

[Lord Wolfson of Tredegar (Con)]

I just make it clear, as far as I am concerned, that a copy of today’s Hansard is going directly to my mother, and I am very grateful for what my noble friend said.

[Baroness Laing of Elderslie (Con)]

In consideration of the feelings of the noble Lord’s mother, let me make it absolutely clear that I share the Minister’s admiration for recent Ministers on both sides of the House, and, indeed, those who are now shadow Ministers and those who were previously shadow Ministers. The quality of the personnel who take charge of this House is exemplary and magnificent. Does the noble Lord think that that will be enough for his mother?

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[Earl Attlee (Con)]

My Lords, all these amendments are unnecessary as, in my opinion, there will be no next stage of reform at any time soon—certainly not in this Parliament. The drivers for this Bill are class-based and a need to reduce overall numbers, thanks—wait for it—to the mismanagement of various Conservative Prime Ministers. The only one of them who seemed to grasp the need for restraint was my noble friend Lady May.

The evidence for my statement is that Sir Tony Blair had two successive, clear election victories after the 1999 Act, as well as the benefit of the very carefully thought-out royal commission report chaired by my noble friend Lord Wakeham. He did nothing; I suspect that was because he could not be sure that any further reform would result in a better arrangement than what we already have. My question for the Minister is: why not just implement the Wakeham reforms?

[Lord Wolfson of Tredegar (Con)]

My Lords, I will respond from these Benches to these three amendments, which all seek to hold the Government to their manifesto commitment to deliver “immediate”—that was the word used—reform of the House of Lords. I mentioned that commitment in my Second Reading speech on this Bill.

I can be brief this evening as the essential points have been made by, in particular, the three noble Lords who tabled these amendments. We have heard much of the Government’s plans, and there has been much talk in these debates of the importance of punctuation in the Government’s manifesto, but the central point on these amendments is this: the Government ought to give the Committee reassurance that the wider reform will come and, importantly, that it will come soon.

When the House of Lords Reform Act 1999 was passed, the Government claimed that the compromise as to some hereditary Peers remaining in your Lordships’ House would act as an encouragement to the Government to complete their reform of the House. However, we are now more than two decades on and still the Government have not brought forward to this House—as opposed to a few sentences in a manifesto—anything approaching proper reform. The obvious question is: why?

The Government often say that, if we seek to change everything, we run the risk of changing nothing, but the truth is, as we all know, that legislative time is precious. In SW1, the most valuable commodity is parliamentary time on the Floor of a House. We have seen Governments fail to deliver second-stage reform before, so why would it be different this time? As the noble Lord, Lord Newby, rightly pointed out, the noises off—if we can call them that—are not encouraging at all.

Therefore, I completely understand the concerns of the noble Baroness and noble Lords who have brought these amendments. We should reasonably expect the Government to give the Committee a much clearer sense of when, in their already busy legislative timetable, they intend to bring forward the next stage of reform. This House, on this issue, is very much once bitten, twice shy. I look forward to hearing from the Leader of the House on this important issue. I hope that she can be more definite than saying, “At some time in this Parliament”.

[Baroness Smith of Basildon (Lab)]

My Lords, I smiled at the point where the noble Lord said that “the party opposite” had done nothing for two decades. I just have to remind him that, for 14 years of those two decades, he was in government and we were not, which did hamper our ability to take action.

I want to thank the noble Baroness, Lady Smith of Llanfaes, the noble Duke, the Duke of Wellington, and the noble Lord, Lord Fowler, for their amendments. What seems clear—and I welcome this—is that there is a bit of momentum about change, which has been lacking for a very long time. I seem to remember that the only proposal the party opposite came forward with about the House of Lords in its time in government was to move this House to York while the rest of Parliament stayed in London, which was not a particularly helpful or constructive suggestion. We seem to be moving now towards a much more collegiate way of doing things and seeing some way forward. I am grateful for that; it is very helpful.

Several times in the debate, noble Lords have raised the question: why this particular proposal first? I have explained that this is the first stage, and the reason that this is the first stage of reform is that it is the one described as “immediate” in the manifesto, but it also completes the start of something that started 25 years ago. The principle of removing the hereditary Peers was established 25 years ago. It seemed very straight- forward, even though we have had very long debates about other issues around it. I am not criticising that; it is just a matter of fact. That principle was established, and this completes that principle.