The House of Lords
The Centre's Evidence to the Commission
PART 8: Peers.
We have remarked earlier in this evidence on what we see as the pernicious effect of feudal titles. The peerage is a component of a highly stratified society that denies merit the supremacy it should have. The hereditary peerage gives a reward for the circumstances of a person's birth. Life peerages at best reward just some of those who have achieved real success in one field with a catchpenny distinction. A more democratic legislature should discard this title of pre-democracy.
Life peers should not have places in the chamber unless elected as Senators. Nor should there be a transitional place for hereditary peers. This shameful affront to democratic decency should no longer be tolerated.
It follows that we do no believe that peers should be ex-officio Senators, nor that Senators should be peers. To require that those elected to this chamber were peers would exclude those who because of sensibility or conscience would not feel able to accept a peerage.
There is no place in a democracy for legislators-for-life. Nor for legislators-until-retirement-age. The right of the people to remove a legislator is an essential component of democratic government. It is absurd that there are legislators who are able to follow their whims, neglect their duty or display incompetence who nonetheless are free to remain in office. Such an arrangement brings democratic government into disrepute and shames our nation before the world.
The presence of senior judges in the legislature is inappropriate, whether or not they have a judicial role there.
The White Paper reminds us that by convention these Lords do not involve themselves in matters that are politically contentious. However, since the legislative function is and should be politically contentious, this convention emphasises the inappropriateness of the most senior judges sitting in the legislature.
The functions of law writing and of interpretation of law should not be conflated. Doing so must cause some confusion and will cause more as the role of judiciary expands. Those whose duty it is to put aside their own interests when interpreting the law have an additional difficulty when they have been concerned in the writing of that law. What is more, although bias may be absent, it will not be clear that it is so. The recent case in which Justice Hoffman failed to declare his interest in the Amnesty organisation is illustrative of one associated problem. It is utterly right for a legislator to hold and express strong opinions on matters of policy and of fact. It is equally right for legislators to give their support to public causes. A legislators who was inhibited from doing so because it might bring into question her or his impartiality in a case that might come before the supreme court is not able to meet the expectations of legislative office to the full.
The location of senior judges in parliament would also be a cause for concern also in the event of a reform of the supreme court that required parliamentary scrutiny of nominees to that bench.
To continue the requirement that judges of the highest court be members of Parliament could also exclude from the highest judicial offices those who do not wish to sit in the legislature. The practice of conferring a peerage on the most senior judges also excludes those who object in principle to the honours system. The highest judicial positions should be open, in equity and in the interests of the highest standards of justice, to those who may not wish to sit in the legislature or carry the title of "Lord."
Some technical expertise might be missing from the floor of a Senate from which the senior judges were absent. There can be little doubt, however, that there would be Senators who were lawyers. The Senate should also be able to employ the legal experts necessary for its work. When necessary it could take evidence from other practising and retired lawyers and from academics.
We propose that the legislative and judicial systems be clearly separated by the creation of a distinct supreme court at the apex of the judicial system.