The difference leaving the House of Lords has made

January 24, 2021

Nomen omen – but not always. The High Courts and Courts of Appeal in England and Northern Ireland formed part of the Supreme Court of Judicature before the coming into force of the Constitution Reform Act 2005 and, by and large, there was never a widespread sense of these Courts unduly throwing their weight around. Had they done so, no doubt the Appellate Committee of the House of Lords would have restored matters to their proper bounds.

Giving a title to a court that includes the adjective ‘supreme’ – and putting no higher domestic judicatory above it – might be thought to be, at the very least, a temptation to judicial overreach. It is a piquant paradox that the Supreme Court has shown itself anxious to shrink from any association with government (remember the episode of its web address?) at a time when its role in shaping our public policy has been greater than that of any court in our history.

Yet Lord Sumption argues that the experience of the last 21 years since the establishment of the Supreme Court has not, in fact, furnished examples of cases that would have been decided one way – and modestly – by the House of Lords and which were decided differently – supremely – by the Supreme Court.

But what of Miller v The Prime Minister? It will be recalled that in Miller the Supreme Court held, among other holdings, that the prorogation had not been a ‘proceeding in Parliament’. It is hard to be certain, especially in this hypothetical context, but it does not seem to be at all likely that Lords of Appeal in Ordinary (all of whom would have experienced the prorogation of Parliament) would have had the audacity to assert, while being active members of the House of Lords, that prorogation was not something that occurred in Parliament, that bringing a Parliamentary session to an end was not a proceeding in Parliament.

Not only is a body that is formally a committee of one House of Parliament unlikely to see itself as entitled to prefer its policy choices to the collective assessment of both Houses, but that constitutional modesty is reinforced by the architectural setting. A committee doing most of its work in one corridor is unlikely to consider it proper to impose its policy preference on one Chamber let alone both of them. And the formal process by which the predominant opinion of the appellate committee became the Order of the House of Lords (since Daniel O’Connell’s successful writ of error in 1844) respected judicial integrity, protected fair process and preserved the vital distinction between those few matters in which the Law Lords had the last word and those matters in which the opinions of Law Lords – if they chose to express them in debate – had no more formal weight than those of any other Peer.

That Law Lords unlike Supreme Court Justices were legislators as well as judges protected and preserved the limits of their judicial role. While Lord Lyndhurst as Lord Chancellor considered himself bound, in his judicial capacity, to decide the famous Lady Hewley’s charity appeal in accordance with legal orthodoxy, he later introduced, as leader of the House of Lords, a Bill (later the Nonconformists Chapels Act 1844) to remedy the perceived injustice consequential on the judicial decision. Can we be sure that the Supreme Court Justices who are not legislators would now exercise the same restraint?


John Larkin QC was Attorney General for Northern Ireland from 2010-2020

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