Patrick O’Brien: How active were pre-2009 judges as parliamentarians?

(Click on graph for bigger image)

Is the question of anything more than historical interest? The Constitutional Reform Act 2005 precluded judicial peers from contributing to parliamentary debate from 1 October 2009. Many of the Law Lords were opposed to the change, and many judges are at least nostalgic for the past arrangements. The current Lord Chief Justice (LCJ) of England and Wales, Lord Thomas, and his immediate predecessor, Lord Judge, have both publicly regretted the fact that they cannot speak in Parliament on matters of importance to the judiciary. To the extent that the outlook of judges today is shaped partly by the feeling that they have lost a valuable platform, the issue is worth exploring. In fact judges were very infrequent contributors to parliamentary debate. Whilst past Lord Chief Justices – and other judicial peers – may have occasionally used the chamber of the Lords as a platform for articulating judicial viewpoints, all things considered they did so rarely.

As part of research done with colleagues as part of an AHRC project on The Politics of Judicial Independence in Britain’s Changing Constitution we created a database of the number of Hansard contributions made by each of a set of judicial peers during each year in the period between the commencement of the Appellate Jurisdiction Act 1876 on 1 November 1876 and the creation of the Supreme Court on 1 October 2009. The graph gives a figure for the ‘career average annual contribution’ (CAAC) for each judge (listed in order of appointment on the x-axis). This figure is calculated by dividing the total number of contributions by each serving judge to debate in the House of Lords by the number of years as a serving judge with a peerage. The CAAC figure is intended to provide a rough basis for comparing each judges’ overall activity in debate.

Who were the judicial peers? The Law Lords (the Lords of Appeal in Ordinary) form the bulk of those included in the database, but judicial peers also included figures like the LCJ of England and Wales, who by convention received a peerage with the job, and other senior UK judges who tended to be awarded peerages after appointment (see the ‘Summary Data’ table). For practical reasons we have not sought to track down every single judge with a peerage and so the few judges who held peerages whilst in post but fall outside of these categories are not included. The figures for each category, including ‘All judicial peers’, are calculated independently. This is because a number of judges (16 in total) served in more than one of the judicial offices considered, meaning that in some cases the same person appears in more than one category (e.g. Lord Woolf appears in the figures for Law Lord, Master of the Rolls and Lord Chief Justice).

Summary data: judicial peers and their contributions to Lords debates 1876 to 2009
Judicial Position	Number with peerages	Number who contributed	Average/Median CAAC
Law Lord	112	87 (78%)	5.16/1.68
LCJ (England & Wales)	16	13 (81%)	4.64/3.25
Master of the Rolls	13	9 (69%)	4.74/1.75
Lord President (Scotland)	8	4 (50%)	1.16/0.06
LCJ (Northern Ireland)	2	0	0
LCJ (Ireland; pre-1920)	1	0	0
All judicial peers	133	104 (78%)	4.91/1.76

What do the data tell us? Contrary to the impression that is sometimes presented of the judicial peers, they were relatively inactive parliamentarians from the very beginning. Most judicial peers contributed very little to debate. A few individuals spoke a great deal by the standards of the group as a whole but this appears to be influenced by personal factors. These judges had mostly had previous careers as politicians. All four judges with CAAC figures of greater than 50 contributions per year were Law Lords. Lord Morris (1890s) and Lord Carson (1920s) were former Irish politicians who retained a keen interest in Irish affairs after their appointment to the Appellate Committee. Viscount Dilhorne (1970s) was another former politician; a prominent former Tory MP and Lord Chancellor. It seems reasonable to attribute the enthusiasm of these three for debate to their familiarity with politics and the debating chamber. The fourth of this group, Lord Ackner, did not have a political background but contributed heavily to the debates on Lord Mackay’s reforms to judicial pay and conditions and to the legal system in the late 1980s and early 1990s. This picks out another feature of judicial contributions: they were episodic and motivated by judges’ interest in specific issues (notably law reform and judicial ‘trade union’ issues).

Half of the total cohort spoke on average less than twice a year (the median CAAC figure is just 1.76 contributions per year). A fifth never spoke at all. There was no significant decline in contributions until the last decade of the Appellate Committee, and – measured as a matter of pure quantity and frequency of contributions to parliamentary debate – there was no ‘golden age’ after 1876 in which the judicial peers were active as legislators to any significant extent. The trend line in the graph above shows a very gentle and gradual decline from the first judicial peer in the sample to the last. Much of the decline is accounted for by the abrupt and almost complete reduction in contributions by the last judicial peers from around the year 2000.

It is not clear to us that judges have lost all that much in their departure from Parliament. There may be subtle ways in which judges could be influential as parliamentarians that are not captured by the Hansard data but judges are not short of ways to express themselves or of contacts in Parliament. Nor is Parliament short of legal and judicial experts, albeit that judges now must be retired before they can take their seats in the House of Lords. Serving judges can still articulate their views on law and justice issues through public lectures, direct engagement with the government and Parliament, and through the formal procedure for laying representations before Parliament (section 5, Constitutional Reform Act 2005). Of most interest to us, and the subject of a pair of papers we are due to complete shortly, is the fact that judges have become regular witnesses before Parliamentary committees. Judges have appeared before committees as witnesses 260 times in the last 35 years, most of those in the last decade. This, however, deserves another post all of its own.

Patrick O’Brien is a Fellow in the Department of Law at the London School of Economics.

The research into judicial peers and judicial appearances before parliamentary committees forms the basis of a pair of papers I am currently writing with Robert Hazell on dialogue between judges and Parliament. Readers may also be interested in our forthcoming book, G Gee, R Hazell, K Malleson and P O’Brien, The Politics of Judicial Independence in the UK’s Changing Constitution (CUP, due out in early 2015).

Suggested citation: P. O’Brien, ‘How active were pre-2009 judges as parliamentarians?’, UK Const. L. Blog (28th October 2014) (available at http://ukconstitutionallaw.org).

4Comments

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1

STEPHEN SEDLEY on October 28, 2014 at 10:12 am

How often did law lords vote, and on what issues? I can recall two occasions in the 1980s when the division bell rang while I was arguing a case at the bar of the House, and the bar was cleared so that their lordships could go and vote. It didn’t say much for the separation of powers.

Stephen Sedley
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  James Hand on October 28, 2014 at 3:36 pm
  
  It is only a partial answer but I included data from 1999 to 2007 in an article in 2008:
  
  of the then twelve LoA in Ord “only one, Lord Scott of Foscote, has voted more than 10 times since 1999 (the data [via Public Whip] only going back to 1999). Lords Hoffmann and Hope have voted eight and three times respectively with the rest having voted only once or not at all.” The additional eleven LoA had similarly low voting records “with the exception of two political peers (Lord Irvine of Lairg, the former Lord Chancellor, who has voted in over 50 per cent of votes and Baroness Clark of Calton, former Labour Advocate-General and current Lord of Session, who has voted in over 10 per cent of possible votes) and the newly ennobled Baroness Butler-Sloss, the former President of the Family Division, who has voted 22 times in less than a year.” (www.bailii.org/uk/other/journals/WebJCLI/2008/issue3/hand3.html at fn 5)
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James Hand on October 28, 2014 at 3:25 pm

A fascinating post but one which (understandably given the title) skips over what the law lords – and particularly retired law lords – brought to the House as opposed to what the House provided to them and they have lost. E.g. http://www.bailii.org/uk/other/journals/WebJCLI/2008/issue3/hand3.html#_Toc202168148

Attendance for the over 75s was much greater than for serving law lords and as Andrew Le Sueur (in (2003) ‘New Labour’s Next (Surprisingly Quick) Steps in Constitutional Reform’ Public Law 368-378 at 371) put it “how palatable will starting an entirely new parliamentary career at the age of 70 [or even 75 if they wish to be on the additional panel of Justices] be for the appointees?” (if they were to be awarded peerages rather than mere styles).
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Cristina Parau on October 28, 2014 at 7:20 pm

This study reminds one of the claim that the US Supreme Court overturns Acts of Congress only about 3% of the time. Yet that 3% is often pivotally important compared to the 97% of routine cases. Here we seem to have another statistical average that tells us very little. The graph shows that there are pivotal moments when judges input into House of Lords debates surged. What does that pattern mean? And how does a statistical average that levels out those spikes and troughs fundamentally misrepresent the meaning of that pattern? Also, wholly neglected is the more informal participation, not only as lobbyists but also as inside observers. Did the study inquire into the dimensions of such participation? The paper does refer to the existence of other avenues of judicial influence, but there is no evidence that it has tried to estimate the transaction costs of these very likely significantly more strenuous and time-consuming ways and means. What is also left out is the value and impact of judges being passive observers in Parliament as well as active participants; and even the effect of their constant nearness to other MPs and the sheer social weight of their presence. Finally, although acknowledging their chagrin, the paper ought to have inquired of the judges themselves: why are they ‘nostalgic for the past arrangements’? Shouldn’t we know more about judicial discontent, instead of a black box labelled “number of hours of [formal] debate”? The numbers themselves aren’t able to tell us whether they matter or not.